Opinion
B161494
10-20-2003
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ZABUSKI, Defendant and Appellant.
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Zabuski appeals from the judgment entered after his conviction by jury of two counts of forcible oral copulation (counts 6 and 8), two counts of forcible rape (counts 7 and 9), forcible sodomy (count 10), and attempted forcible sodomy (count 11). (Pen. Code, §§ 288a, subd. (c)(2); 261, subd. (a)(2); 286, subd. (c)(2); all further undesignated section references are to the Penal Code.) The jury could not reach verdicts on counts 1-5, splitting 6 to 6, which later were dismissed.
In a bifurcated postverdict hearing, Zabuski admitted two prior strike and one serious felony convictions: 1991 convictions in one case for forcible oral copulation and assault with intent to rape (§ 220). In the same hearing, the trial court denied Zabuskis motions for new trial, to substitute retained counsel, and to set aside prior convictions.
Zabuski received an aggregate 80 years-to-life sentence: consecutive 25 years-to-life terms on counts 6, 8, and 11, and a consecutive 5-year prior serious felony enhancement.
Zabuski contends: (I) the trial court erred in prohibiting introduction of one of the victims postcrime statements under Evidence Code sections 782, 1103, subdivision (c)(1), and 352; (II) insufficient evidence supports the verdicts on all counts; (III) the prosecutor committed misconduct in argument, and the trial courts admonition was inadequate to cure the harm; (IV) trial counsel was incompetent in failing to request a pinpoint instruction on the victims alleged evidence suppression; (V) Evidence Code section 1108, under which the trial court admitted evidence of Zabuskis prior sexual crimes, is unconstitutional; and (VI) the trial court violated Zabuskis right to counsel by refusing to relieve his retained attorney for his postverdict motions.
We reject Zabuskis contentions and affirm the judgment. Because of our conclusion, we need not address Zabuskis claim that cumulative error compels reversal.
FACTS
The charged counts involved four victims: Gena (counts 1-5), Jo (counts 6-7), Karen (counts 8-10), and Vanita (count 11). All four victims met Zabuski through the internet during discussions of the dominate-submissive sexual subculture. All four victims then arranged voluntary in-person meetings with Zabuski, but testified they never agreed to engage in the charged sex acts and Zabuski forced them to do so. Although Zabuski did not testify, the defense theory was that all four women consented to the charged acts as part of their willing participation in that subculture.
Karen defined a dominate-submissive relationship (D/S) as one in which the parties agree on mutually-defined behavior, including sexual behavior. Once the relationship is established, the submissive participant agrees to obey the dominant participants orders, and to be punished for disobedience. Jo and Vanita agreed with this general description. If the parties agreed, the submissive participant considered herself owned, or "`collared," by the dominant participant.
Karen, Jo, and Vanita all met Zabuski on the internet between September 1999 and March 2000. All three women had posted internet information expressing interest in the D/S subculture. All three women had multiple internet or telephone conversations with Zabuski before agreeing to meet him in person, during which Zabuski asked them about their sexual preferences and told them about his, particularly his interest in urinating on his submissive partner, called "golden showers." When they agreed to meet him, all three women complied with Zabuskis demands about what clothing to wear and how to wear their hair. Vanita agreed before meeting Zabuski that if they liked each other, Zabuski could spank her buttocks. All three women denied agreeing before the meeting to engage in the charged sexual acts. Zabuski told Karen and Jo he was a member of, or worked for, the Dodgers.
While all three women admitted an interest in the D/S subculture, Karen claimed she was only learning about it, although, unknown to her family, she had participated in other D/S relationships. Jo claimed not to be a submissive, while Vanita admitted being one.
Karens in-person meeting with Zabuski occurred on October 1, 1999; Jos meeting occurred on March 15, 2000; and Vanita met Zabuski on March 20, 2000. Karen and Vanita went to Zabuskis apartment, and both brought changes of clothing at Zabuskis request. Both Karen and Vanita wore no underwear as Zabuski instructed them. In Jos case, she agreed to meet Zabuski at her house.
Karen arrived at Zabuskis apartment at 3:05 p.m., a few minutes late. Zabuski admitted Karen and showed her where she could leave her purse. Zabuski asked Karen if she knew the time. When Karen glanced at her watch, Zabuski punched her in the stomach, saying that was her punishment for being late. Zabuski ordered Karen to kneel down and orally copulate him. Karen complied out of fear. After a few minutes, Zabuski ordered Karen to stop. He led her to the couch by pulling her hair. Zabuski said he punched her because she was late. Karen falsely told him she was late because she stopped to make a "safe call" to a friend who would know where she was. Zabuski then punched her in the stomach again, ordered Karen to kneel, pulled up her skirt, and sodomized her. Karen yelled for him to stop, but he continued, repeatedly slapping the back of Karens head.
Zabuski stopped and ordered Karen to go into the bedroom. Karen half-walked and was half-dragged into the bedroom. Zabuski ordered Karen to get on the bed, repeatedly calling her a b_ _ _ _. Karen complied, and Zabuski raped and sodomized her. Karen then complied with Zabuskis orders to enter the bathroom and kneel in the tub. Zabuski repeatedly rubbed his penis in Karens hair, leaving and returning a few times. He threatened to urinate on Karen, but did not. After finally allowing Karen to sit in the tub, Zabuski told her to leave. Karen put her clothes on, left, and drove to work. Karen claimed she told a co-worker she had been raped.
Karen continued to have internet conversations with Zabuski after her visit to his apartment, telling him she had enjoyed the incident although he hurt her, saying she was collared by him, and saying she wanted to see him again. She also referred another submissive woman to Zabuski. Karen also continued her internet interest in the D/S subculture. Karen claimed these statements to Zabuski were lies to allow her to avoid further meetings.
Jo agreed by telephone to have Zabuski come to her home. When she tried to delay the visit to run an errand, Zabuski told her that if she did so, she would receive "golden showers" as a consequence. When Zabuski arrived, he told Jo to shut the door, kneel down, and orally copulate him. Jo complied out of fear. When she tried to stop, Zabuski threatened to hit her if she did so. Zabuski ordered Jo to undress and go into the bedroom. She did so, and orally copulated Zabuski again. He again threatened to hit her when she tried to stop. Zabuski ordered Jo to lie on the bed with her legs up, and he raped her. After speaking pleasantly to her for awhile, Zabuski left.
Jo was unemployed, but denied looking for a man to support her in exchange for sex. Jo later downloaded an internet form agreement to have sex without any relationship.
Vanita went to Zabuskis apartment. As noted, she had agreed that Zabuski could spank her if they liked each other. When she arrived, Zabuski immediately ordered her to kneel and orally copulate him. Vanita went along, although they had not agreed to do so. Zabuski then ordered her to remove her dress and crawl to the couch, where he spanked her. He then ordered Vanita to crawl into the bedroom. She did so while he pulled her by the hair, although he did not do so forcefully. She complied with Zabuskis order to bend over the bed. Zabuski tried to sodomize her, but she yelled for him to stop. He told her to shut up and unsuccessfully continued to attempt sodomy, once accidentally entering her vagina. Eventually, Zabuski masturbated to a climax. Zabuski thereafter spoke nicely to her, but asked if she was going to turn him in. Vanita did not respond, left, and claimed she told an internet friend what happened.
None of the three women contacted the police until April 2000 when they learned about Zabuski through law enforcement announcements on television or the internet. All three women tried to or did delete information from their computers about their participation in the D/S subculture and/or their contacts with Zabuski. They explained their actions as inadvertent or based on embarrassment.
Two earlier victims testified that in June and August 1990, respectively, they were both recent high school graduates. Zabuski contacted them, posing as a talent agent, and claimed he could get them movie roles. Each agreed to meet him, dressed as he instructed, at a restaurant for an interview. Zabuski then duped each of them into his car in a secluded parking lot. Zabuski punched one victim several times while trying to force her into sex acts, but she escaped. Zabuski forced the second victim to orally copulate him.
In defense, a computer expert confirmed that Karen, Jo, and Vanita had accessed much D/S information on their computers and then deleted it. Some of the material had been accessed repeatedly, contradicting claims that it had been received inadvertently.
DISCUSSION
I
Abuse of Discretion
Before trial, Zabuski filed a written motion seeking to cross-examine and admit prior sexual conduct evidence against Gena, Karen, and Jo under Evidence Code sections 782 and 1103. The trial court admitted and the jury heard most of this evidence. However, the trial court excluded inquiry into and evidence of "[a]n instant message conversation between Jo . . . and an unidentified female in which [Jo] inquires as to how to get a `sugar daddy, expresses a desire to obtain a `sugar daddy and expresses an openness to any type of sexual encounter in order to obtain one."
Zabuskis offer of proof regarding this evidence stated: "This evidence and line of questioning would be used to impeach testimony by [Jo] that her invitation to [Zabuski] to come over to her residence did not include the direct or implicit promise of sex and to impeach [Jos] credibility as to whether she anticipated sexual intercourse with [Zabuski] when she invited him over. [¶] . . . The prosecution will also introduce [evidence] at trial from [Jo] and others that during internet contacts [Zabuski] represented himself as a member of the L.A. Dodgers organization or a player for the Dodgers. The evidence of [Jos] desire to find a `sugar daddy[,] which involves the exchange of sexual favors for monetary support, and her self-proclaimed openness to sexual encounters would be used by the defense to establish [Jos] motive in engaging in sex with [Zabuski], and to explain her subsequent feeling of betrayal and desire for revenge which led her to make false charges of sexual assault once she learned via the television news and/or internet e-mail of [Zabuski]s true identity and past history."
Zabuski elaborated on his admissibility theory: "The defense also seeks to introduce evidence that [Jo] had . . . an internet communication with another person in which [Jo] expresses a desire to find a `sugar daddy, asks how to go about it, and expresses her openness to sexual activities as a means to obtain such a person. This evidence, when viewed in the context of this case, establishes that [Jos] desire to meet with [Zabuski] arose out of a desire for a `sugar daddy, an[d] further explains her willingness to engage in sex with [Zabuski] as a means to an end. The sexually explicit images, including acts of oral copulation, sexual activity and nudity, confirms her statement she was open to sexual activity in exchange for a `sugar daddy."
After an extensive colloquy with the parties, the trial court excluded the evidence, stating:
"I dont think theres enough to bring this in. If there is other evidence talking about money or support, maybe. On top of that, this is generated three months after she came forward."
Despite this ruling, Zabuski later cross-examined Jo without objection as follows:
"Q [By Zabuskis counsel.] At that time [when she met Zabuski in person] were you working, maam?
"A No, I wasnt.
"Q You were unemployed; correct?
"A Thats correct.
"Q And one of the things that you were also looking for was a man to support you, wasnt it?
"A Absolutely not.
"Q You werent looking for a sugar daddy at that time, were you?
"A Absolutely not. I had supported myself and my son up until that point as well.
"Q Well, you had been unemployed for at least two months before this incident; correct?
"A Thats correct. But there is unemployment.
"Q So you had no interest in meeting a man during that period of time, up through even in the months following that, meeting a man who would take care of you monetarily in exchange for sexual favors?
"A Absolutely not."
During this period, Jo and her four-year-old son were living in a house Jos parents owned.
Zabuski later renewed his motion to admit the evidence of Jos "sugar daddy" e-mail correspondence on the same grounds. The trial court reiterated its earlier denial, stating: "There is no evidence that money was in any way mentioned, discussed or involved in [Jos] incident."
Zabuski contends the trial court erred in denying his pretrial motion to admit Jos "sugar daddy" e-mail, and erred again in denying his renewed motion after the quoted cross-examination. Zabuski contends the court abused its discretion under Evidence Code sections 782, 1103, subdivision (c)(1), and 352 because the evidence should have been admitted to rebut Jos claim of lack of consent. He also argues that, in any event, the evidence should have been admitted after Jos denials during cross-examination to impeach her denial. We disagree.
Evidence Code section 782 states:
"(a) In any prosecution under Section 261, 262, 264.1, 286, 288, 288a, 288.5, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit any crime defined in any of those sections, . . . if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:
"(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.
"(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
"(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
"(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
"(b) As used in this section, "complaining witness" means the alleged victim of the crime charged, the prosecution of which is subject to this section."
As relevant, Evidence Code section 1103 states:
"(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
"(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.
"(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).
"(b) . . . .
"(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code or under Sections 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, . . . opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness.
"(2) Notwithstanding paragraph (3), evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record. For the purposes of this paragraph, "manner of dress" does not include the condition of the victims clothing before, during, or after the commission of the offense.
"(3) Paragraph (1) shall not be applicable to evidence of the complaining witness sexual conduct with the defendant.
"(4) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness.
"(5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.
"(6) As used in this section, complaining witness means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision."
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
We review the trial courts Evidence Code section 352 ruling for an abuse of discretion. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
"Appellant first assigns error to the trial courts exclusion of specific instances of the victims past sexual behavior. Statutes enacted in 1974 specify when and under what circumstances evidence of a victims prior sexual behavior can be admitted in a trial of sexual assault charges. The statutory scheme actually consists of two statutes, Evidence Code sections 1103, subdivision (c), and 782. Section 1103, subdivision (c), provides that a defendant cannot introduce opinion evidence, reputation evidence, and evidence of specific instances of the alleged victims previous sexual conduct with persons other than the defendant to prove the victim consented to the sexual acts alleged. In adopting this section the Legislature recognized that evidence of the alleged victims consensual sexual activities with others has little relevance to whether consent was given in a particular instance. [Citation.]
"While strictly precluding admission of the victims past sexual conduct for purposes of proving consent, Evidence Code section 1103, subdivision (c)(4), allows the admission of evidence of prior sexual history relevant to the credibility of the victim. Because the victims credibility is almost always at issue in sexual assault cases, Evidence Code section 782 specifies a procedure requiring an in camera review of the proffered evidence to diminish the potential abuse of section 1103, subdivision (c)(4). The defense may offer evidence of the victims sexual conduct to attack the victims credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence.
"By narrowly exercising the discretion conferred upon the trial court in this screening process, California courts have not allowed the credibility exception in the rape shield statutes to result in an undermining of the legislative intent to limit public exposure of the victims prior sexual history. [Citations.] Thus, the credibility exception has been utilized sparingly, most often in cases where the victims prior sexual history is one of prostitution. [Citations.] Evidence the victim participated in a form of prostitution is conduct involving moral turpitude which is admissible for impeachment purposes. [Citation.] Prostitution is a crime of moral turpitude. [Citation.] [¶] . . . .
"A trial courts ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion. [Citation.]" (People v. Chandler (1997) 56 Cal.App.4th 703, 707-709, 711, fns. omitted.)
Applying these rules to our facts, we conclude the trial court properly exercised its discretion in excluding the evidence. First, Jo sent her "sugar daddy" e-mail over three months after her encounter with Zabuski. Jo insisted she and Zabuski never discussed financial support or payment of money for sex acts. There was no contrary evidence. Thus, even if the e-mail reflected Jos mental state when sent, no evidence supported an inference that she had so acted during the sex acts with Zabuski. That being the case, the e-mail had essentially no probative value, but was highly prejudicial to a fair evaluation of Jos credibility, particularly since e-mail correspondence often is deliberately exaggerated.
Moreover, given the trial courts ruling and our analysis, Zabuski should not have been permitted to cross-examine Jo on this topic, wrongly creating a need to introduce the evidence to impeach her denial. Introduction of the e-mail from over three months after the incident shed no light on Jos motives for her earlier meeting with Zabuski. As the trial court held, Jos denial of seeking a "sugar daddy" when Zabuski attacked her was not logically contradicted by a statement of her intentions over three months later, particularly when there was no evidence that she and Zabuski ever discussed, let alone agreed, to exchange sex for money.
Constitutional Violation
Because the trial court properly excluded the evidence, it did not violate Zabuskis confrontation and cross-examination rights.
Evidence Code section 765, subdivision (a) states: "The court shall exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment." Moreover, Evidence Code section 352, quoted and discussed above, permits a court to exclude evidence, presentation of which involves undue time consumption or a danger of undue prejudice, confusing the issues, or misleading the jury.
A court may violate due process if it precludes cross-examination of significant probative value to the defense, but does not do so if the proposed examination is repetitive or only marginally relevant. A trial court may properly exclude such cross-examination if it has only slight relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679; People v. Babbitt (1988) 45 Cal.3d 660, 684-685; People v. Rodriguez (1986) 42 Cal.3d 730, 750-752.)
A trial court violates the confrontation clause by completely precluding cross-examination of a prosecution witness about an immunity agreement, for example. However, even such an error is not reversible per se, but is governed by the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 22-24. (Delaware v. Van Arsdall, supra, 475 U.S. at pp. 680-684.)
For all these reasons, our review of the trial court ruling calls for no relief for defendant.
II
Zabuski contends insufficient evidence supports his conviction on all counts. Zabuski argues that because Karen, Jo, and Vanita were participants in the D/S subculture, they must have consented to the charged acts, and their denials should be rejected as insubstantial as a matter of law. Zabuski supports his argument by noting that none of the women immediately reported the attacks to the police, had any marks or bruises, or stopped their interest in the D/S subculture after the attacks. Zabuskis contention lacks merit.
"`The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
"`Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 849.)
"The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) "The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]" (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.)
All three victims testified that even willing participants in the D/S subculture agree on acceptable and forbidden conduct, including acceptable and unacceptable sex acts, and those agreed-upon limits are enforced by the parties. All three women said they never agreed to engage in any sex acts during their in-person meetings with Zabuski, who sexually attacked all three women immediately upon their arrival. Humiliation and embarrassment caused all three victims to delay reporting the crimes, and to be reluctant to turn over their computers which recorded their contacts with Zabuski. The jury heard all the information supporting and attacking the victims accounts, and chose to believe the victims. That decision is supported by substantial evidence. The victims accounts are not inherently incredible. Zabuskis contention amounts to nothing more than a request that we reweigh the evidence and substitute our analysis of it for the jurys. We cannot do so. Substantial evidence supports the verdicts.
III
During her rebuttal argument, the prosecutor said: "Also, even a rapist learns dont pick sympathetic victims. . . . Pick someone, pick a woman that no one is going to believe, or he thought that. Pick a woman, a vulnerable victim who is lonesome and maybe has an alternative lifestyle, like two of our victims. Pick them and no one will believe them. Thats what he thought. But we believe them. You heard their testimony."
The trial court sustained Zabuskis objection. Zabuski requested a curative instruction. The trial court stated the comments could be interpreted as an expression of personal belief. The prosecutor then said, ". . . I mean the People believe them." Zabuski again objected. The trial court instructed the jury,
"I think the jury understands that the attorneys personal opinions about the evidence is not relevant, that these closing arguments could be objective.
"Each attorney gives you an objective argument as to what the evidence has been. You shouldnt take into account the attorneys personal input."
Zabuski contends this colloquy constituted prosecutorial misconduct that was so prejudicial that the courts admonition did not cure the harm, and that the comments deprived him of due process and an impartial jury. The contention lacks merit.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841, internal quotes omitted.)
There was no constitutional violation here. This single colloquy, likely a simple misstatement, does not show a pattern of egregious conduct in a lengthy, hotly contested trial and argument.
Assuming without deciding that this single, isolated colloquy in a long argument was misconduct, the courts admonition to the jury to disregard the comment cured any harm. We presume the jury followed the instruction.
In any event, any conceivable error was harmless. The jury deadlocked on counts 1-5, which later were dismissed, and deliberated for over 16 hours over 4 days. The jury was not influenced by any improper comments.
IV
Zabuski contends his trial counsel was incompetent in not requesting a jury instruction that the jury could draw an adverse inference against the victims if it found they willfully suppressed material evidence. Zabuski concedes the trial court was not required to so instruct sua sponte. However, he contends his counsel was incompetent in not requesting an instruction based on BAJI 2.03 and Evidence Code section 413:
"If you find that a party willfully suppressed evidence in order to prevent its being presented in this trial, you may consider that fact in determining what inferences to draw from the evidence." (BAJI No. 2.03 (9th ed. 2002).)
"In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the partys failure to explain or to deny by his testimony such evidence or facts in the case against him, or the willful suppression of evidence relating thereto . . . ." (Evid. Code § 413.)
The contention lacks merit.
"[T]he burden of proving a claim of inadequate trial assistance is on the appellant. [Citation.] Thus, appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsels acts or omissions resulted in the withdrawal of a potentially meritorious defense." (People v. Pope (1979) 23 Cal.3d 412, 425. "`It is established that reversal for ineffective assistance of counsel is generally unwarranted unless the defendant shows counsels alleged failings prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 693-694 . . . ; People v. Pope[, supra,] 23 Cal.3d [at p.] 425 . . . ; [citation.]) [Citation.]" (People v. Wright (1990) 52 Cal.3d 367, 404.)
"A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington, supra, 466 U.S. at 687.) "The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
Moreover, where the record is silent regarding why trial counsel failed to act as demanded on appeal, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Mendoza-Tello (1997) 15 Cal.4th 264, 266.)
Here, as the Attorney General argues, the quoted authority, and the cases interpreting it, all apply to evidence suppression by a party. The victims were not parties, and Zabuski cites no authority supporting its extension to nonparties. Thus, Zabuski was not entitled to the instruction. It follows that Zabuskis counsel could not be incompetent for failing to request instructions to which he was not entitled.
Second, the jury already was extensively instructed on the factors to consider in determining credibility.
Finally, the issues of the victims deliberate or inadvertent destruction of the computer data, their explanations, and how the explanations reflect on credibility, all were subject to extensive cross-examination and argument. Thus, there was no prejudice.
V
Zabuski contends Evidence Code section 1108, under which the evidence of his prior sexual crimes was introduced, is unconstitutional. Zabuski concedes his argument was rejected in People v. Falsetta (1999) 21 Cal.4th 903, but repeats it to preserve it for possible federal court review. We reject the contention, as we must, under Falsetta.
VI
Retained counsel James Barnes represented Zabuski at trial. The jury returned its verdicts on February 11, 2002. The court continued trial on the prior convictions and sentencing once. Barnes filed a new trial motion on April 26, 2002, arguing insufficient evidence supported the counts in which Jo and Vanita were the victims, introduction of evidence of Zabuskis prior sex crimes prejudiced him, and Evidence Code section 1103 was unconstitutional. On the same day, new retained counsel Joseph Shemaria substituted in for Barnes. The court granted Zabuskis request to continue all pending proceedings.
On August 26, 2002, Shemaria filed an additional new trial motion, arguing evidentiary insufficiency as to the remaining counts.
At the August 27, 2002, hearing for his new trial motions, priors trial, and sentencing, Zabuski told the court he had a major conflict with Shemaria. The trial court stated it knew Shemaria was retained, but wanted to conduct a Marsden-like hearing to investigate Zabuskis claim.
Zabuski and his wife said they had paid Shemaria $10,000 so far to conduct the remaining motions and also to seek a new trial based on Barnes alleged failure to call additional witnesses. Zabuskis wife said Shemaria also would handle the appeal and charge a total of $50,000. Zabuski complained that Shemaria had not raised Barnes incompetence and had not adequately prepared. Shemaria replied he did not agree to raise Barnes incompetence and was adequately prepared.
The trial court asked Zabuski what he would do about counsel if the court agreed to let Zabuski fire Shemaria. Zabuski replied he did not know. The court reviewed the chronology since the verdicts, the passage of several months since, and the need for another lengthy delay should new counsel enter the case. The court denied the motion to relieve Shemaria.
Zabuski contends the court abused its discretion. Zabuski argues the court confused his desire to fire retained counsel with a request for new appointed counsel. Zabuski concludes the court wrongly denied the motion because any delay was minimal. The contention lacks merit.
"The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state [citations], and is governed by Code of Civil Procedure section 284, subdivision 2 [citations]. The right to discharge retained counsel is based on necessity in view both of the delicate and confidential nature of the relation between [attorney and client], and of the evil engendered by friction or distrust. [Citation.] In order to ensure effective assistance of counsel, a nonindigent defendant is accorded the right to discharge his retained attorney . . . . [Citation.] Thus, we conclude that the right to counsel of choice reflects not only a defendants choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain.
"A nonindigent defendants right to discharge his retained counsel, however, is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in `significant prejudice to the defendant [citation] or if it is not timely, i.e., if it will result in disruption of the orderly processes of justice [citations]. As the court stated in Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613, the `fair opportunity to secure counsel of choice provided by the Sixth Amendment is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of assembling the witnesses, lawyers, and jurors at the same place at the same time. The trial court, however, must exercise its discretion reasonably . . . . [Citation.]" (People v. Ortiz (1990) 51 Cal.3d 975, 983-984, fn. and some internal quotations omitted.)
"The right to discharge retained counsel is not absolute, however, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is `unjustifiably dilatory or . . . arbitrarily desires to substitute counsel at the time of trial. [Citations.]" (People v. Lara (2001) 86 Cal.App.4th 139, 153.)
The trial court properly exercised its discretion. The motion was untimely, the case already had been continued for six months while Zabuski substituted a second for his first attorney, Zabuski had no plans for new counsel if Shemaria was fired, and another lengthy delay would have been necessary for any new attorney to become prepared. The trial court did not err in denying the motion.
DISPOSITION
We affirm the judgment.
We concur: SPENCER, P.J., MALLANO, J. --------------- Notes: Because counts 1-5 were dismissed, their relevant facts will not be included in this section. Facts about counts 1-5 will only be discussed as relevant to the issues raised.