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People v. Martinez

August 13, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL MATTHEW MARTINEZ, DEFENDANT AND APPELLANT.



Alameda County Super. Ct. No. H15696, Judge: Jeffrey W. Horner.

The opinion of the court was delivered by: George, C. J.

Defendant Michael Matthew Martinez appeals from the judgment of death imposed by the Alameda County Superior Court following his conviction of the first degree murder of Lisa White (Pen. Code, § 187)*fn1 and the premeditated, attempted murder of Tara R. (§§ 187, 664, subds. (a), (f).) In connection with the murder charge, the jury found true the allegation that defendant personally used deadly weapons, specifically a hammer and a knife. (§ 12022, subd. (b)(1).) In connection with the attempted murder charge, the jury found true the allegation that defendant inflicted great bodily injury. (§ 12022.7.) The jury found true a special circumstance allegation that the murder occurred while defendant was engaged in the commission, or attempted commission of, or flight after the performance of a lewd act upon a child under the age of 14 years, in violation of section 288. (§ 190.2, subd. (a)(17)(E).) After the penalty phase of the trial, the jury returned a verdict of death and the trial court imposed a sentence of death, also imposing a sentence of life imprisonment for the attempted murder, two one-year terms of imprisonment for the weapons enhancements, and a three-year term for the great-bodily-injury enhancement. Defendant‟s appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety for the reasons set forth below.

I. FACTS

A. Guilt Phase Evidence

1. Prosecution Evidence

The murder victim, Lisa White, resided in Hayward with her daughter Amanda O., then two years of age. White‟s other daughter, Tara R., was 10 years of age at the time of the charged offenses. According to Tara‟s grandmother, Tara, after having been sexually abused by Amanda‟s father, was removed from her mother‟s home by the local child protective services agency and was placed for a period of approximately two years in a residential facility for psychiatric treatment. Tara visited her mother and her sister from time to time on weekends and for holidays.

White occasionally employed Lisa Gamaza as a babysitter. According to Gamaza‟s testimony, White chastised Gamaza for permitting her boyfriend, defendant, to visit while Gamaza tended Tara and Amanda. White explained to Gamaza that Amanda‟s father had sodomized and orally copulated Tara, and that Tara was in residential treatment as a result of that abuse. Gamaza also testified that defendant had drawn a picture for Tara on one occasion, depicting a cross dripping with blood, surrounded by flowers. Defendant ordinarily carried a buck knife on his hip. Gamaza mentioned that White and defendant had engaged in methamphetamine sales with one another. Gamaza‟s relationship with defendant ended in May 1989.

The charged offenses occurred in the early morning hours of December 22, 1990, when Tara was at her mother‟s residence for her Christmas visit. According to the testimony of defendant‟s acquaintance, Ron Casuga, defendant spent the preceding evening of December 21 at defendant‟s residence with Casuga and Casuga‟s girlfriend, Shonette Leite. The group drank beer and smoked marijuana. According to Casuga, they moved to a bar, where they were joined by Jennifer Hartz. At approximately 11:00 p.m., the party returned to defendant‟s residence and consumed more beer and marijuana. Casuga testified that defendant departed with his neighbor, James Dyer, at approximately midnight. Casuga and the other members of the group departed from defendant‟s residence at approximately 3:00 a.m. Casuga testified he left defendant a note explaining that because defendant had not returned, the rest of the group had departed.

Dyer testified that late in the evening of December 21, 1989, defendant requested a ride to a nearby residence, which Dyer identified at trial as White‟s home. According to Dyer, defendant entered the residence, then emerged to direct Dyer not to wait for him, because he would use the occupant‟s vehicle to return home.

Tara testified that in the early morning hours of December 22, 1990, she was sleeping in her mother‟s room with her younger sister, Amanda, when she felt someone lift her up and carry her to her own room. She discovered that she had been transported by defendant, with whom she was acquainted. Tara testified that he ordered her to remove her clothing, then raped and sodomized her and forced her to orally copulate him. Defendant informed Tara he would kill her and her mother if she told anyone what he had done. Tara testified further that defendant struck her on the head and arm with a hammer. She lost consciousness, then awoke to hear her mother slam the door of her automobile and approach the residence. Defendant ran out of Tara‟s room. Tara observed him hiding behind the front door. Tara testified that when her mother entered the residence, Tara screamed a warning and that defendant then struck White on the head repeatedly with a hammer. After White fell to the floor, defendant went to the kitchen and retrieved a knife. He stabbed White in the neck. Tara testified that she ran to a neighbor‟s residence, pursued by defendant.

Tara‟s testimony was marked by hostility to defense counsel, impulsive outbursts, and her refusal to answer questions until ordered to do so by the court. Her testimony contained some inaccuracies, such as her assertion she had encountered defendant in her mother‟s residence, confronted him, and disarmed him two days prior to the commission of the crimes - when Tara actually was in her group home in Sacramento. In closing argument, the prosecutor acknowledged that Tara‟s testimony was inaccurate in some relatively unimportant respects and reflected her psychiatric problems. The prosecutor pointed out, however, that her testimony was consistent in all significant respects with statements she made to police officers and medical examiners immediately following the crimes.

Prosecution witness John Feeny confirmed that in the early morning hours of December 22, 1990, Tara appeared at his residence, which adjoined White‟s, and tapped on his front door. He testified that she was clothed only in sweatpants, was bleeding from the face and chest, and wept uncontrollably. At first Tara informed him that her mother had dropped her off in downtown Hayward and a man had beaten her. Feeny was skeptical because he had observed White leave her home some 25 to 30 minutes prior to Tara‟s arrival. Feeny had spoken to White, who had explained she was going to buy cigarettes. He had assumed there was another adult present at White‟s residence to care for Tara and Amanda during her absence.

Feeny testified that shortly after he heard White‟s vehicle return, he heard loud banging, as if someone were affixing a nail to a wall to hang a picture. Approximately 10 minutes later, Tara arrived at his doorstep.

Feeny testified that when he contacted a police department emergency dispatcher, Tara became distraught and stated that she had been beaten and raped by her mother‟s friend Mike, that Mike had killed her mother by hitting her on the head with a hammer, and that her mother‟s bloody body was lying on the floor of her home. A tape-recording of the 911 call was played for the jury and confirmed Feeny‟s account of Tara‟s statements to the police dispatcher. Feeny‟s testimony also was confirmed by that of his stepdaughter, Kimberly Hoskins, who was present when Tara arrived at Feeny‟s residence.

Casuga, who testified concerning defendant‟s movements on December 21, 1990, also stated that when he visited defendant on the morning of December 22, defendant informed him he had injured someone and thus had blood on his clothing. According to Casuga, defendant instructed him to say defendant had been with Casuga all night if anyone should ask.

Prosecution witness Linda Pedersen testified that defendant contacted her by telephone at approximately 3:00 a.m. on December 22, 1990. Pedersen resided near White‟s residence. Defendant informed her that he was stranded at a gas station located some six blocks from Pedersen‟s home, and he pleaded with her to pick him up in her automobile. She was persuaded by his tone of desperation and drove to the gas station. Following defendant‟s instructions, she parked at the side of the station. Defendant emerged from a bathroom, jumped into her vehicle, and ordered her to drive away. Pedersen noticed a red stain on defendant‟s jeans and testified that he refused to explain his circumstances. Pedersen drove to her residence, where defendant used the telephone, and then drove defendant to his own apartment.

Prosecution witness Dyer testified that in the early morning hours of December 22, 1990, approximately three or four hours after he had driven defendant to White‟s residence, defendant knocked at his door and requested a ride to a grocery store. Dyer testified that defendant appeared nervous, and that he slumped in his seat as Dyer drove. Defendant informed Dyer he had a headache and needed to sleep. Dyer purchased a soporific for him, and then drove defendant back to defendant‟s residence.

Pediatric emergency physician William Hawk testified that when Tara arrived at Children‟s Hospital & Research Center Oakland (Children‟s Hospital) in the early morning hours of December 22, 1990, both bones in her left forearm were broken and she had suffered a laceration to her scalp that almost penetrated to her skull. Her face, chest, and legs were bruised, and her lips were swollen and lacerated. In Hawk‟s opinion, her head wound could have been inflicted by the claw of a hammer.

Hawk testified that during his medical examination, Tara stated that "Michael M." had threatened her and raped her. She also identified her attacker as Michael Martinez and described him as a Hispanic male who was approximately 25 years of age. Hawk testified that Tara informed him defendant had placed his finger and his penis inside her vagina. Although she initially reported that there had been no anal contact, subsequently she informed Hawk that defendant had placed his penis inside her rectum. Tara also informed Hawk that she had been attacked with a hammer. Hawk testified that his medical examination of Tara revealed trauma in the vicinity of the anus, denoting anal penetration, but there was no trauma to the vagina.

Alameda County Deputy Sheriff Claudette Center testified that on December 22, 1990, she responded to Feeny‟s residence, where she observed Tara bleeding profusely from a large head wound. Screaming and weeping, Tara repeatedly declared, "she‟s dead, I saw her fall down dead, he killed her, he fucked me, he hit me - I have to go back."

Center testified that her inspection of the crime scene at White‟s residence revealed a pool of blood on the mattress in Tara‟s bedroom, blood spattered on the walls of the bedroom, and drops of blood on the floor leading to the corner of the room. White‟s body was on the floor in a doorway between the kitchen and the living room of the residence. Her skull and face had been beaten in, and she was impaled to the floor with a knife through her neck. Her body was warm, and steam rose from the surrounding pools of blood. The front door was spattered with blood.

After inspecting the crime scene, Center followed Tara to Children‟s Hospital in Oakland. Center had past experience as a social worker treating sexually abused children. She testified that at the hospital, Tara gave her an anguished account of her experiences that night. She testified that Tara informed her that defendant had carried her from her mother‟s bed to her own bed and, using graphic terms, Tara declared that defendant had raped her, sodomized her, and forced her to orally copulate him. Tara added that defendant warned her not to say anything about what he had done. He left the room and returned, then attacked her with a hammer and used "the sharp part" to strike her head. Center testified Tara informed her she heard her mother return, heard yelling, and after Tara left her bed, witnessed defendant strike her mother on the head multiple times. Tara stated she fled from the house, and then returned briefly with the objective of saving her younger sister, Amanda. She fled when she heard noises inside the residence, and climbed over the fence to reach Feeny‟s residence.

Center testified that Tara displayed extreme emotional turmoil throughout the interview.

Alameda County Deputy Sheriff Dale Toussaint testified that he conducted two tape-recorded interviews of Tara, one on the morning of December 22, 1990, and one on the afternoon of the same date. The recordings were played for the jury. The transcript of the recorded statements reflects that Tara was sleepy, a condition the officer attributed to medication. Tara‟s statements were rambling, and it is difficult to determine whether she was offering a chronological account or merely blurting out each event as it occurred to her. The interview was terminated and recommenced after several hours in order to accommodate Tara‟s need for rest. At one point in her statements, Tara informed Toussaint that defendant was present in the residence before Tara went to bed on the night of the crimes, but subsequently she stated she was unaware of his presence until he woke her. She stated that while she slept, "mommy left and then he watched us, and then he put me in my room and started fucking me." She added that defendant removed her pants and underpants but not her shirt, and raped her and forced her to orally copulate him; that at some point while assaulting her, he retrieved a knife; that he left her room and returned with a hammer, with which he struck her; that she heard her mother enter the residence and heard banging; and that she heard defendant stab her mother and then ran to Feeny‟s residence. She would not acknowledge that she witnessed defendant‟s attack on her mother. She repeatedly sought to terminate the second interview.

Prosecution witness Sharon Smith, an Alameda County Sheriff‟s Office criminalist, testified that rectal, vaginal, and oral swabs taken from Tara on December 22, 1990, tested negative for semen. Semen was present, however, on the exterior and interior of Tara‟s underpants, which had been removed and examined when Tara arrived at the hospital. The underpants also bore blood and possible fecal stains. A sweatshirt removed from Tara‟s bedroom bore stains of semen and either fecal material or saliva on the lower front portion of the shirt. Tara‟s trousers bore bloodstains, but no evidence of semen was discovered on them. Conventional testing for genetic markers indicated that defendant could not be excluded as the source of the semen stains on the underpants, although the result may have been influenced by the admixture of Tara‟s body fluids. Smith also testified that jeans seized from defendant‟s apartment bore bloodstains that were consistent with White‟s blood but not with Tara‟s or defendant‟s blood. Blood collected from the hammer discovered near White‟s body matched White‟s blood, but not defendant‟s or Tara‟s.

Samples from defendant‟s jeans and Tara‟s sweatshirt were submitted for DNA testing. The stains from defendant‟s jeans matched White‟s DNA profile in four of six chromosomal tests; the remaining two tests were inconclusive. The blood found on the hammer did not come from defendant‟s body. The DNA of the semen sample taken from the sweatshirt matched defendant‟s DNA profile in five of six chromosomal tests; the sixth was inconclusive. The frequency with which defendant‟s genetic profile would appear in the population was 1 out of 250 million persons belonging to the southwestern United States Hispanic population, 1 out of 760 million persons belonging to the Black population, 1 out of 890 million persons belonging to the White population, and 1 out of 480 million persons belonging to the southeastern Hispanic population.

White‟s body was examined for evidence of sperm but none was found. The cause of her death was acute trauma to the head, and her injuries were consistent with hammer blows. She also had been stabbed twice in the neck. When her body was discovered on the floor of her home, a knife had penetrated her neck and the floor beneath her. The handle of the hammer that was recovered near her body was split.

Prosecution witnesses Pedersen and Casuga testified they were present in defendant‟s residence on the evening of December 22, 1990, along with two other persons, when the police arrived and knocked on the door. Both witnesses testified that the officers announced several times that they had an arrest warrant. According to the witnesses, defendant directed all those present to remain silent, and then proceeded up the stairs to the second story. The police broke down the door and ejected Pedersen and the other occupants of the room.

Sergeant John Reasoner of the Alameda County Sheriff‟s Office testified that he and his partner went to defendant‟s residence on the evening of December 22, 1990, to serve an arrest warrant. Upon their arrival, they heard voices coming from inside the apartment. The officers identified themselves several times, then effected a forced entry. Reasoner testified that the arresting officers conducted a search for defendant, and that when they announced they would release a police dog and began to ascend the stairs to the second story, defendant surrendered and was placed under arrest.

2. Defense Evidence

Defendant testified in his own defense. He admitted that he killed White, but denied assaulting Tara or, indeed, even having seen her or having had any contact with her on the evening of White‟s death.

Defendant testified he had sold controlled substances to friends for approximately 10 years prior to committing the charged offenses. He testified that on December 21, 1990, he had been under the influence of methamphetamine and unable to sleep for six days. He described further heavy use of this drug at various points during that day. He felt "amped" or "unreal."

Defendant testified that he consumed alcohol and smoked marijuana in his apartment with Casuga and Leite. The party, joined by Hartz, proceeded to a bar.

Defendant consumed two strong alcoholic drinks and ingested methamphetamine. The group returned to defendant‟s residence, where defendant drank two beers and ingested additional methamphetamine. Because White telephoned to say she wished to purchase methamphetamine, defendant secured a ride to her residence from Dyer. Before he reached White‟s residence, he visited Pedersen and ingested methamphetamine. At White‟s residence, defendant requested the use of White‟s automobile. Although they failed to agree on a price for his use of her vehicle, defendant returned to Dyer‟s vehicle to say he would not need a ride. Defendant gave Dyer some methamphetamine, and Dyer departed.

Defendant testified that he and White injected methamphetamine in Tara‟s empty, darkened bedroom. According to him, he and White had sexual intercourse on Tara‟s bed. Defendant testified he ejaculated on the bed. He claimed that he and White argued concerning his use of her vehicle. She demanded a gram of methamphetamine in exchange for his using the vehicle and departed to buy cigarettes, returning after five or 10 minutes. When she returned, the argument continued concerning trading methamphetamine for defendant‟s use of the vehicle. After White hit him in the chest, he pushed her. She then swung at defendant with a hammer. He became angry and struck her in the face. When she fell to the ground, he retrieved the hammer and used it to beat White‟s face and head. Defendant testified that the next thing he remembered was Pedersen arriving to give him a ride to her residence, and then to his own apartment. He did not realize he had killed White. He testified he did not observe Tara or interact with her that evening.

Defendant further testified that when the police arrived at his residence on December 22, 1990, they knocked on the door but failed to identify themselves. According to defendant, because the officers did not respond when he questioned them, he mounted the stairs to reach an upstairs window that could afford a view of the front door. He denied requesting that the other persons present remain silent.

The defense presented the testimony of John Schlim, an expert on the subject of methamphetamine use. He testified concerning the generally deleterious effects of habitual methamphetamine use on the body, including sleeplessness, and on behavior, noting an increased incidence of sudden bursts of paranoia, hostility, and aggression. He also testified that tests of blood and urine samples extracted from White‟s body indicated a high level of methamphetamine intoxication at the time of her death. In Schlim‟s opinion, the tests demonstrated White had ingested a large dose of methamphetamine approximately 10 to 14 hours prior to her death.

B. Penalty Phase Evidence

1. Prosecution Evidence

The prosecution introduced evidence implicating defendant in the uncharged murder of another woman, Christine Parks, whose body was discovered on October 29, 1989, in an alleyway next to an athletic field. The victim‟s dress had been pulled up above her waist. The entire body was smeared with blood and dirt and bore evidence of multiple blunt force traumas. In addition, there were 22 stab wounds, including multiple injuries to the face, neck, chest, arms, and hands. All had been inflicted while the victim was alive. Tire tread marks were evident in the dirt next to the body. Death was caused by the stab wounds and the blunt force injury. The latter was consistent with the victim‟s having been run over by an automobile. An autopsy disclosed that the victim had ingested multiple controlled substances.

In connection with this earlier incident, prosecution witness Denise Alden testified that defendant had borrowed an automobile from her. Early one morning in the autumn of 1989, defendant returned the vehicle in a badly damaged condition. Defendant‟s finger was lacerated, and his clothing bore bloodstains. The front end and one side of the vehicle had been damaged. The exterior had been cleaned but there were puddles of blood on the front passenger seat and on the floor.

Alden testified that defendant informed her he had witnessed a beating and had given aid to the victim, a man. She testified that according to defendant, the victim‟s assailants then attacked defendant. Defendant told her he had driven away, dropping off the victim at the latter‟s request. Alden testified that she witnessed defendant washing blood from a knife.

Alden further testified that she and defendant cleaned the interior of the vehicle at a carwash facility. The victim‟s handbag subsequently was discovered in a dumpster near the facility.

Alden‟s stepfather, Chester O‟Steen, testified that when defendant returned Alden‟s vehicle in damaged condition, O‟Steen directed defendant to show him the location where the purported attack had occurred and the vehicle had been damaged. Defendant did so, but there was no broken glass or evidence of paint or blood at that location to corroborate defendant‟s story.

Prosecution witness Gamaza testified that prior to defendant‟s commission of the presently charged offenses, defendant informed her he had killed a man by running him over with an automobile belonging to his then-girlfriend, Denise Alden. According to Gamaza‟s testimony, defendant explained he was delivering controlled substances when the man approached him and attacked him, cutting defendant‟s finger. Defendant bragged that he had run over the individual several times to make certain that he was dead.

Prosecution witness Erik Eastman testified that in 1996, when he and defendant were prisoners at Santa Rita Jail, defendant struck him twice without provocation.

White‟s mother, Sondra Filson, testified concerning the impact of White‟s death on her. She also described the traumatic effect of the crimes on Tara and Tara‟s sister, Amanda.

2. Defense Evidence

Defendant‟s half brother, Steve Martinez, testified regarding the harsh treatment received by defendant at the hands of their mother when they were children. He recounted episodes of physical abuse inflicted on defendant by his mother. Defendant‟s half brother and his sister, Jessica Marie Hutchinson, testified that defendant‟s mother always blamed defendant for a brain aneurysm that substantially disabled defendant‟s father when defendant was 14 years of age. According to these witnesses, defendant‟s mother believed an incident in which defendant accidentally struck his father‟s head while closing a garage door was the cause of the aneurysm that occurred months later.

II. DISCUSSION

A. Marsden Inquiry

Defendant contends the trial court erred (1) in failing to conduct a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118); (2) in discussing complaints concerning defense counsel‟s representation with counsel in defendant‟s absence; and (3) in failing to intervene to ensure that defense counsel responded adequately to complaints concerning his legal representation of defendant. Defendant claims these errors violated his state and federal constitutional rights to due process of law and a fair trial, to reliable guilt and penalty determinations, and to be personally present at all critical stages of the proceedings. We are not persuaded.

1. Factual Background

When a complaint was filed on December 26, 1990, the Alameda County Public Defender was appointed to represent defendant. Counsel from that office represented defendant during his 1991 preliminary hearing and subsequently filed a motion to suppress evidence. On February 1, 1994, prior to the hearing on the motion to suppress, the office declared a conflict of interest and attorney Lincoln Mintz was appointed. Jury selection commenced on March 18, 1997, and the jury was sworn on May 5, 1997.

Defendant‟s sister, Jessica Hutchinson, wrote four letters to the Superior Court of Alameda County during March, April, and May of 1995, approximately two years prior to the commencement of the trial. These letters complained that Mintz had failed to communicate adequately with defendant subsequent to the attorney‟s initial interview with his client.

The first letter, dated March 28, 1995, addressed to the court administrator, asserted that Hutchinson was writing "on behalf of [her] brother," and stated, "we are requesting" that the defendant be transported to court for the next trial-setting hearing, then scheduled for April 4, 1995. The letter acknowledged that, ordinarily, such requests are made by counsel, but explained that defendant had been unable to communicate in person or by telephone with his attorney for a full year despite defendant‟s efforts to arrange a visit. The letter referred to denial of the "right to an adequate defense" and concluded: "[Defendant] is asking for what he is entitled to and what Mr. Mintz was appointed to give him - a defense. He is asking for a candid, face-to-face discussion with his attorney. Mr. Mintz has excellent recommendations and appears to be supremely qualified and well-respected. However, we are all extremely frustrated with this situation and the lack of interest displayed by Mr. Mintz. We ask that all this be taken into consideration when deciding this basic request to appear in court."

The second letter was dated April 4, 1995, and, like the remaining two letters, was addressed to the Honorable William McGuiness. The letter repeated the earlier letter‟s description of defendant‟s unsuccessful efforts to contact Mintz personally or by telephone. It requested defendant‟s presence at the next trial-setting hearing and added that "[a]n acknowledgement and recognition of this problem and/or any other helpful information, conveyed to my brother, would be greatly appreciated."

The third letter was dated April 26, 1995, and stated Hutchinson was communicating "regarding her brother." The letter noted that no response to the previous letter had been received, but stated the expectation that any response from the court would be made "to [defendant] personally." The letter again asserted defendant had experienced "numerous difficulties" communicating with Mintz. It continued: "I do not believe [defendant] wants to change his attorney further delaying the proceedings. However, you must understand his intense frustration and ours as we have no legal advisor or access to the system at this current time. Not everyone enjoys the privileges of O.J. Simpson, but, regardless, [defendant] is entitled to legal representation. If Mr. Mintz is not willing or able to give this to him, it is the very least his obligation to let [defendant] know about it. We respectfully ask you to intervene, in an appropriate manner, and facilitate some communication between Mr. Mintz and [defendant]. [¶] I apologize for this ordeal which should involve you. However, we are not sure of where to turn either and can not see any reason for what seems to be a continual neglect of [defendant]."

The fourth letter was dated May 10, 1995, and again was characterized as a communication "regarding" defendant. Defendant‟s sister requested "some kind of acknowledgement" from the court. It noted that "to my knowledge, Mr. Mintz has still not consulted with [defendant] at all about his case," and asserted that "[defendant] would simply like to meet and consult with Mr. Mintz prior to going to trial. If it takes judicial intervention to do so, then that is what he is asking."

On June 1, 1995, Judge McGuiness conducted a trial-setting proceeding. Defense counsel waived defendant‟s right to be present at the hearing. The clerk of the court noted in the record that the "[c]court further notes receiving correspondence from Jessica [Hutchinson]. [Counsel] receives copies of said correspondence and states he has ongoing contact with client and will contact family [with] future dates."

The reporter‟s transcript of the hearing reflects the following interchange. "The Court: I would note parenthetically, for the record, the court received communications on May [10] and April 26 from a Jessica [Hutchinson], directed to the court. [¶] I have shared that correspondence, providing a copy with respect to those letters to Mr. Mintz. [¶] Mr. Mintz, did you want to state anything on the record with regard to that?

"[Defense counsel]: Just briefly. [¶] [Defendant] and I are in communication, your honor, contrary to what concerned members of his family have said. [¶] The Court, [defendant] and I have discussed the defense in this case. And what I will do is, previous to the July 13th [trial-setting] date, I will take up the matter of these with [defendant] and his family, and see that the court receives a communication, and close up the matter."

Defendant asserts that there was no further discussion of the matter on the record.

2. Discussion

Defendant contends the letters sent by his sister imposed a duty upon the court to order that he be transported to the court for a hearing at which the court could inquire into the adequacy of the legal representation provided to defendant by Mintz. Defendant places primary reliance upon this court‟s decision in People v. Marsden, supra, 2 Cal.3d 118 (Marsden). In that case, the defendant complained in general terms that his appointed counsel was not providing adequate representation, and the court inferred that he wished to discharge counsel and substitute another appointed attorney. The court conducted a hearing, but erred by refusing to permit defendant to list particular instances in which he felt his counsel had performed inadequately. (Id. at p. 124.)

In Marsden, supra, 2 Cal.3d 118, we explained that although an indigent defendant possesses a right under the Sixth Amendment to the assistance of court-appointed counsel, he or she does not have an unlimited right to require the trial court to discharge appointed counsel and appoint substitute counsel. (Marsden, at p. 123.) The decision whether to substitute counsel at the defendant‟s request rests within the trial court‟s discretion; when ineffective assistance of counsel is alleged by the defendant, the court should grant a request to substitute counsel if there is " " "a sufficient showing... that the right to the assistance of counsel would be substantially impaired... in case the request is not granted...." ‟ " (Ibid.)

In Marsden, supra, 2 Cal.3d 118, we pointed out that a trial court cannot discharge its duty without hearing the reasons for the defendant‟s belief that his or her attorney has not afforded adequate representation. (Id. at pp. 123-124.) We observed that " "the critical factual inquiry ordinarily relates to matters outside the trial record‟ " (id. at p. 123), and concluded that denial of a motion to substitute counsel based upon the court‟s observations in the courtroom - without affording the defendant an opportunity to offer argument or evidence in support of his or her complaint - " "is lacking in all the attributes of a judicial determination.‟ " (Id. at p. 124.)

We also rejected the position taken by the trial court in the Marsden case - that it was prohibited from advising the defendant how to present his request to substitute counsel. We pointed out that, on the contrary, we had commended courts that aided unrepresented persons " "as to the presentation of evidence, the rules of substantive law, and legal procedure.‟ " (Marsden, supra, 2 Cal.3d at p. 126.) Even as to defendants who are represented, we concluded it is within the court‟s authority to assist a defendant who is "groping for the proper manner in which to demonstrate the alleged lack of competence of his attorney...." (Ibid.)

a. Absence of Request to Substitute Counsel

As a threshold matter, defendant‟s claim fails because a review of the record reveals that defendant did not complain concerning counsel, nor did he request substitution of counsel. Although a formal motion is not required, the trial court‟s duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides " "at least some clear indication‟ " that the defendant wishes to substitute counsel. (People v. Dickey (2005) 35 Cal.4th 884, 920; see People v. Valdez (2004) 32 Cal.4th 73, 97; People v. Mendoza (2000) 24 Cal.4th 130, 157.) Because defendant made no assertion whatsoever regarding dissatisfaction with counsel, the trial court‟s duty under Marsden was not triggered.

Moreover, contrary to defendant‟s contention, even if we were to view the letters sent by defendant‟s sister as emanating from defendant, those letters do not contain a "clear indication" from the defendant that he desired substitution of counsel on the ground of counsel‟s deficiencies. In fact, as noted above, one of the letters states that "Mr. Mintz has excellent recommendations and appears to be supremely qualified and well-respected." The letters do not even imply a request to substitute counsel. Rather, they complain of lack of communication between defendant and his counsel, and request the court‟s intervention to improve attorney-client communication. In the absence of a request to discharge appointed counsel, however, differences of opinion between a defendant and his or her appointed counsel regarding the conduct of the defense do not impose a duty upon the court to conduct a Marsden hearing. (People v. Lucky (1988) 45 Cal.3d 259, 281.)

b. Invocation of Defendant's Rights under Marsden by a Third Party

In addition, the circumstance that the letters were sent by a third party renders them an insufficient basis for imposing a duty upon the court to conduct a Marsden hearing. This is so because our decision in Marsden, supra, 2 Cal.3d 118, was intended to afford protection to the defendant‟s right to counsel as guaranteed by the Sixth Amendment, and the constitutional right to counsel is personal to the defendant and ordinarily cannot be asserted vicariously. (People v. Badgett (1995) 10 Cal.4th 330, 343-344; see also People v. Tena (2007) 156 Cal.App.4th 598, 613 [describing the personal nature of the right to present a defense, and to counsel].)*fn2

It would be inappropriate to recognize a third party‟s authority to require the court to conduct a Marsden inquiry, because the defendant‟s right to mount a defense in the manner that he or she, under the direction of defense counsel, deems best requires that counsel‟s independence from third party influence be protected. The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant‟s right to counsel of his choice, nor to compromise the independence of the bar." (Smith v. Superior Court (1968) 68 Cal.2d 547, 559 ["The value in issue... is "the state‟s duty to refrain from unreasonable interference with the individual‟s desire to defend himself in whatever manner he deems best, using every legitimate resource at his command‟ "]; see Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697; see also People v. Jones (2004) 33 Cal.4th 234, 244; Ingraham v. Justice Court (1968) 69 Cal.2d 832, 840.) We would risk encouraging interference with the attorney-client relationship were we to hold that a trial court must conduct a Marsden hearing when a third party complains concerning the representation received by a defendant.*fn3

Practical considerations support the conclusion we reach. A third party does not owe a duty of loyalty to the defendant, whereas a party‟s attorney owes the highest fiduciary duty to his or her client. (1 Witkin, Cal. Procedure, supra, Attorneys, § 90, pp. 125-127; id., § 101, p. 138.) The intervention of a person who is not under such a duty could impair the defendant‟s interests, especially because third parties may have motives that are inimical to the defense position. And when the nonparty is not a lawyer, even a well-intentioned person adversely could impact the defendant‟s position because of ignorance of the law. (See J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 969.) In addition, because communication between attorney and client is confidential and privileged, third parties are unlikely to have complete information concerning the attorney-client relationship. Accordingly, third parties ordinarily lack a reliable basis upon which to allege ineffective assistance of counsel.

Finally, there is no necessity to impose a duty upon the court to entertain Marsden motions made by third parties, because even incarcerated defendants can speak for themselves in various ways. There is no indication on the present record that defendant was unable to communicate with the court except through his sister. Defendant, like his sister, could have mailed a letter to the court. He also could have complained concerning the representation afforded to him at the first opportunity when he ultimately did appear in court.

For all these reasons, we perceive no cause to deviate from principles recognizing the personal nature of the right to counsel and protecting the attorney-client relationship from third-party interference. We decline to impose upon the court a duty to conduct a hearing or respond to criticism of appointed counsel that has been levied by a nonparty.

c. Asserted Obligation to Intervene on the Court's Own Motion

Defendant contends that trial courts are under an obligation to protect the defendant‟s right to effective assistance of counsel through inquiry initiated in the first instance by the court, once the court knows or should know that the adequacy of counsel‟s representation is in question. Defendant claims the court, at the least, should have "acknowledged" his sister‟s letters, permitted defendant to appear before the court, and "follow[ed] up on Mr. Mintz‟s promise to furnish the court with a "communication‟ to "close up the matter.‟ " To the extent defendant claims the court is under an obligation to conduct a Marsden inquiry on its own motion, we are not persuaded. On the contrary, as suggested by the many decisions of this court requiring some indication from the defendant (or defense counsel) (see People v. Carter (2005) 36 Cal.4th 1114, 1194) that the defendant wishes to substitute counsel (People v. Valdez, supra, 32 Cal.4th at p. 96; People v. Dickey, supra, 35 Cal.4th at pp. 920-921), we agree with the decisions of the Courts of Appeal holding specifically that the trial court is not required to conduct a Marsden hearing on its own motion. (People v. Lara (2001) 86 Cal.App.4th 139, 150; People v. Leonard (2000) 78 Cal.App.4th 776, 787; People v. Gay (1990) 221 Cal.App.3d 1065, 1070; see also People v. Monteil (1993) 5 Cal.4th 877, 906.)

To the extent defendant‟s claim is based upon an asserted general duty on the part of the trial court to supervise appointed counsel, any obligation that may rest upon the court to uphold a proper standard of representation by appointed counsel (see McMann v. Richardson (1970) 397 U.S. 759, 771; People v. McKenzie (1983) 34 Cal.3d 616, 630, disapproved on another point in People v. Crayton, supra, 28 Cal.4th at pp. 364-365) is circumscribed and must be understood in light of the countervailing duty of the court to respect the inviolability of the attorney-client relationship and to permit the defendant to present his or her defense in the manner deemed appropriate by counsel in consultation with the defendant. (See Smith v. Superior Court, supra, 68 Cal.2d at pp. 559-561; see also People v. Jones, supra, 33 Cal.4th at pp. 242-244.) Thus, the trial court‟s authority to ...


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