Opinion
C086950
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. RYAN EDDY WATENPAUGH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F5668)
At a hearing conducted after we remanded in a prior appeal, the trial court declined to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 and denied defendant Ryan Eddy Watenpaugh's motion for a new trial. Defendant contends the trial court should have granted the Marsden motion because counsel on remand misunderstood the scope of permissible grounds for a new trial motion. We conclude the trial court erred in denying the Marsden motion, and further conclude the People have not demonstrated the error was harmless beyond a reasonable doubt. Accordingly, we reverse and remand.
I. BACKGROUND
As recounted in our prior opinion, defendant was tried and convicted of multiple crimes arising out of an off and on romantic relationship with his ex-girlfriend, including two counts of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)—counts 1 and 4), two counts of false imprisonment by violence (§ 236—counts 2 and 5), one count of cruelty to animals (§ 597, subd. (a)—count 6), one count of stalking (§ 646.9, subd. (a)—count 7), and one count of possession of an assault weapon (§ 30605, subd. (a)—count 9). (People v. Watenpaugh (Aug. 10, 2017, C080566) [nonpub. opn.].)
Undesignated statutory references are to the Penal Code.
During closing argument, the prosecutor repeatedly referred to text messages between defendant and his ex-girlfriend and emphasized that the text messages were "consistent with one person's timeline version of events," the ex-girlfriend's. (Italics added.)
In the prior appeal, we reversed the trial court's decision denying defendant's posttrial request to discharge privately retained counsel. We vacated the seven-year sentence and remanded for further proceedings.
On remand, appointed counsel filed a new trial motion.
Before the hearing on that motion, defendant asked for new counsel, because counsel would not investigate and raise an issue in the new trial motion that defendant wanted. In the closed Marsden hearing, defendant told the trial court that there was "some newly discovered evidence [that he] wanted to put in," but remand counsel had "yet to investigate" the issue: "texts that the [People] used to . . . convict" defendant were edited by his ex-girlfriend.
Defendant asserted (a) the People "never actually downloaded [his ex-girlfriend's] phone," but "used a copy of what she had provided them," and (b) his ex-girlfriend "essentially just kind of whitewashed and [took] out anything that shows her wrongdoing" and "actually edited the words" in the texts. Defendant said he could "prove" his assertion with "records from the phone company" and with his own phone.
The trial court questioned defendant whether his trial counsel knew about the allegedly altered texts. Defendant indicated trial counsel did know. The trial court explained that, given trial counsel's knowledge, the altered texts were "not newly discovered evidence. It's evidence that you now want in retrospect, but you knew at the time because you talked to your defense team at the time, who took efforts to communicate to the [p]rosecution that these [texts] weren't correct."
Defendant's counsel on remand explained his position: "My opinion, after hearing about this from [defendant] and doing some research, is that this would not count as newly discovered evidence since it was evidence that the [d]efense team at the trial reasonably knew about and could have obtained at that time."
After further discussion with defendant about the altered texts and other grounds for the Marsden motion, the trial court explained why defendant needed to pursue the issues of the altered texts and possible ineffective assistance of trial counsel via a petition for writ of habeas corpus, rather than a new trial motion: "There is a statute that says the only issues on the [m]otion for new trial are the ones in that code section. It's 1181[ ]. It includes some of the things we have here. . . . Newly discovered evidence is one of those things. If it is truly newly discover[ed]. This doesn't strike me as newly discovered evidence.
"If it was anything . . . based on your belief that there was evidence out there that nobody went and got, that could have potentially established that the critical witness had falsified information to be brought before a jury, if that's the case and your attorney didn't go after it, that's potentially incompetent. That would be a writ issue, not a new trial [m]otion issue. Because the writ issue is not statutory, it's much broader and much more liberal. [¶] [Remand counsel] is limited to those things that the Penal Code will allow him to bring as a [m]otion for new trial." (Italics added.)
Based, in part, on its agreement with remand counsel that the introduction of possibly altered texts at trial was not a proper basis for a new trial motion, the trial court denied defendant's Marsden motion, explaining: "I haven't heard anything which would tell me that [c]ounsel has been doing things which are contrary to the fairness of the upcoming hearing, that their discretion is being exercised at least in a way that is reasonable. [¶] . . . [¶] So I am denying your Marsden [m]otion." (Italics added.)
The trial court then reopened the hearing, listened to argument on the new trial motion, and denied that motion. Then, the trial court sentenced defendant to seven years in state prison.
Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Marsden Error
Defendant contends the trial court erred in denying his Marsden motion, because it mistakenly believed ineffective assistance of counsel (IAC) at trial could not be raised in a motion for a new trial, and because remand counsel was providing ineffective assistance. The People agree that IAC may be asserted as the basis for a new trial even though it is not one of the grounds for granting a new trial explicitly contemplated by section 1181. But the People argue the trial court did not err in denying the Marsden motion, because defendant's claims of ineffective assistance concerned matters outside the court's observations of counsel's performance and the record, and the record does not affirmatively disclose that remand counsel (1) thought he could not raise a claim of IAC of trial counsel, and (2) had no rational tactical purpose in declining to pursue a new trial motion on grounds of IAC of trial counsel. Defendant has the better argument.
Section 1181, provides, in pertinent part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." Though the statute does not expressly contemplate it, our Supreme Court has ruled that IAC can be the basis for granting a new trial motion. (See People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
"Criminal defendants are entitled to the assistance of counsel in their defense. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) . . . A defendant [] has a right to seek substitute counsel under Marsden if the defendant can show that continued representation by present counsel would substantially impair or deny his or her right to effective assistance of counsel. [Citations.] The trial court must appoint new counsel when failure to do so would substantially impair the defendant's right to assistance of counsel. [Citation.] [¶] . . . [¶] The right to effective assistance of counsel continues throughout proceedings in the trial court and on appeal. [Citations.] As here, it may arise after a verdict and before judgment is entered in the trial court. [Citations.] When new counsel is appointed at that stage of the proceedings, new counsel may, if counsel believes it is appropriate, move for a new trial on the grounds former counsel was ineffective. [Citations.]" (People v. Knight (2015) 239 Cal.App.4th 1, 5-6 (Knight).)
A trial court has the discretion to determine that an IAC claim raised in a new trial motion should be litigated in a habeas corpus proceeding instead. (People v. Cornwell (2005) 37 Cal.4th 50, 101 (Cornwell), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The People rely on Cornwell as authority for the proposition that the trial court acted within its discretion in concluding that defendant's IAC claim was better suited for a habeas corpus proceeding, because the claim concerned matters outside of the court's observations of counsel's performance and the record. The People place too much weight on a portion of Cornwell that is taken out of its context.
In Cornwell, our Supreme Court discussed with approval the procedure followed by the trial court before "[i]t reasonably concluded that the volume of out-of-court material upon which defendant based his claim simply removed the case from the category of trials in which justice would be expedited by appointing substitute counsel to prepare a motion for new trial that raised an [IAC] claim." (Cornwell, supra, 37 Cal.4th at p. 102.) The trial court "determined that defendant's allegations were serious and complete enough for the court to appoint separate counsel, who would be charged with examining the record and the evidence that defendant claimed had not been proffered at trial, in order to determine whether there were grounds for filing a motion for new trial on the basis of [IAC]." (Id. at p. 99, italics added.)
After separate counsel investigated the grounds for an IAC/new trial motion (Cornwell, supra, 37 Cal.4th at pp. 99-100) and "reported to the court that it would take . . . probably at least six months[] for him to be prepared for a hearing on a motion for new trial," (id. at p. 100) the trial court ruled that the IAC claim "should be litigated in a habeas corpus proceeding," (id. at p. 101) which ruling was "based upon an evaluation of the undue time that would be consumed by consideration of an [IAC] claim . . . in lieu of consideration by way of a petition for writ of habeas corpus" (id. at p. 100).
True, part of the opinion discusses the relevance of a trial judge's own observations of counsel's courtroom performance when considering whether to consider an IAC claim in a new trial motion. (Cornwell, supra, 37 Cal.4th at p. 101 [explaining that " 'justice is expedited when the issue of counsel's effectiveness can be resolved promptly at the trial level' " in light of an "assumption . . . that courts would decide such claims in the context of a motion for new trial when the court's own observation of the trial would supply a basis for the court to act expeditiously on the motion," italics omitted].) But, read in the context of the entire opinion, that language simply explained why the trial court did not abuse its discretion. Read as a whole, Cornwell stands for the proposition that a trial court has the discretion to conclude that habeas, rather than a new trial motion, is the better route for adjudication of an IAC claim if the trial court makes that decision with an informed appreciation of the judicial resources needed to adjudicate the claim.
Here, defendant made it clear he wanted new counsel because he believed he was receiving inadequate representation for purposes of the new trial motion. The trial court properly held a closed Marsden hearing at which defendant and his counsel explained their disagreement on the propriety of pursuing a new trial claim that defendant's ex-girlfriend forensically manipulated evidence used at trial. But the trial court—despite noting that defendant's allegations of altered texts introduced at trial suggested "potentially incompetent" assistance of trial counsel—explained, "[t]hat would be a writ issue, not a new trial [m]otion issue," because remand counsel was "limited to those things that the Penal Code will allow him to bring as a [m]otion for new trial." Thus, contrary to the People's argument, the record reflects that the trial court concluded that habeas was the only route for adjudication of the IAC claim, not the better route. The record further reflects the trial court reached that conclusion due to a mistake of law and without an informed appreciation of the judicial resources needed to adjudicate the claim in a new trial motion. Having misunderstood the scope of permissible grounds for a new trial motion that remand counsel could have pursued, the trial court abused its discretion by denying defendant's well-founded Marsden motion, because "[a] failure to exercise discretion [] may constitute an abuse of discretion." (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)
Further, the record reflects this error substantially interfered with defendant's rights under Marsden, as the trial court's mistaken understanding precipitously closed-off the inquiry into whether counsel on remand should have been substituted so that the question of ineffective assistance of trial counsel could be pursued. (See Knight, supra, 239 Cal.App.4th at p. 8 [because the record suggested defendant "abbreviated his Marsden presentation" because of the trial court's "plainly erroneous" misstatement of law, the court "presume[d] that the trial court's statement substantially and erroneously interfered with defendant's rights under Marsden"].) B. Prejudice
Though the parties invite us to rule on the issue, we need not decide whether remand counsel was rendering ineffective assistance, because regardless of counsel's performance, the trial court's error impaired defendant's Sixth Amendment right to counsel. (See Knight, supra, 239 Cal.App.4th at pp. 8-9 [without ruling on counsel's performance, reversing and remanding for an error-free Marsden hearing, because of trial court error at a posttrial, presentence Marsden hearing]; cf. People v. Hernandez (2012) 53 Cal.4th 1095, 1102 [a trial court's order can violate defendant's Sixth Amendment right to effective assistance of counsel].)
"Marsden does not establish a rule of per se reversible error. [Citations.] Where there is Marsden error, we must reverse unless the record shows beyond a reasonable doubt that the defendant was not prejudiced." (Knight, supra, 239 Cal.App.4th at p. 9.)
The People, not defendant, bear the burden to make this showing. (See People v. Reese (2017) 2 Cal.5th 660, 671 ["Federal constitutional errors subject to harmless error review are reviewed under Chapman [v. California (1967) 386 U.S. 18], which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt"].) The burden is a "heavy" one. (People v. Guzman (2000) 80 Cal.App.4th 1283, 1290.)
The People appear to attempt to shift the burden onto defendant, arguing that he "never establishes what the phone records would have allegedly shown, or how the admitted texts were altered." --------
In Knight, the Fourth District Court of Appeal, Division One, faced with a trial court's Marsden error at a posttrial, presentence hearing, explained that "the silent record" before it, "with respect to what the defendant might have offered, had the required inquiries been made, made it impossible to conclude . . . the trial court's error was harmless." (Knight, supra, 239 Cal.App.4th at p. 9.) This was so because the court could not "conclude beyond a reasonable doubt that . . . if [defendant's Marsden motion] was successful, new counsel would have failed in prosecuting a motion for a new trial." (Ibid.)
We are in a similar position as the court in Knight, as we have an underdeveloped record because of trial court error. And, to paraphrase the trial court's analysis during the Marsden hearing, if there were evidence showing that "the critical witness had falsified information to be brought before a jury," it is plausible that a new trial motion would be granted. (Cf. People v. Callahan (2004) 124 Cal.App.4th 198, 213-214 [affirming grant of new trial motion due to IAC of trial counsel, who "failed to sufficiently impeach" trial witnesses].) This is so especially in light of the prosecutor's repeated emphasis in closing argument that text messages were consistent only with defendant's ex-girlfriend's version of events. (Cf. People v. Flores (2016) 2 Cal.App.5th 855, 881 [citing People v. Aguilar (1997) 16 Cal.4th 1023, 1036, for the proposition that courts should consider closing argument to evaluate harmless error].)
Thus, the People have not carried their burden to demonstrate that the Marsden error was harmless beyond a reasonable doubt.
III. DISPOSITION
The trial court's decision denying defendant's Marsden motion is reversed and the sentence imposed in the matter is vacated. The matter is remanded with directions to the trial court to appoint new counsel and conduct further proceedings as necessary in light of that appointment and not inconsistent with this opinion.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
MURRAY, J.