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The People v. Federico Hernandez

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 14, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FEDERICO HERNANDEZ, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed. (Super. Ct. No. RIF138216)

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

P.

v.

Hernandez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted Federico Hernandez of assault with a firearm (count 2: Pen. Code,*fn1 § 245, subd. (a)(2)) and being a felon in possession of a firearm (count 4: § 12021, subd. (a)(1)). As to count 2, the jury found true allegations that Hernandez personally used a handgun (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)).

The jury also returned a verdict of not guilty on the count 1 attempted murder charge and was unable to reach a verdict on the count 3 criminal threat charge. The court dismissed the criminal threat charge.

In a subsequent bifurcated proceeding, Hernandez admitted, and the court found true, allegations that Hernandez had served three prior prison terms within the meaning of section 667.5, subdivision (b).

The court sentenced Hernandez to a total state prison term of 17 years eight months, consisting of the upper term of four years on the count 2 assault with a firearm conviction, a consecutive eight-month term (one-third the midterm) on the count 4 felon in possession of a firearm conviction, a 10-year enhancement for the use of a firearm (§ 12022.5, subd. (a)) to run consecutive to sentence imposed in count 2, and a consecutive one-year term for each of the three prior prison term enhancements (§ 667.5, subd. (b)).

Hernandez appeals, contending (1) the prosecution used peremptory challenges in a discriminatory manner to strike two Hispanic males from the jury, thereby violating his state and federal constitutional rights and requiring reversal of his convictions; and (2) the court erred in denying his six requests for new appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), thereby necessitating reversal of his convictions. We affirm.

FACTUAL BACKGROUND

A. The People's Case

The victim in this case, Naresh Patel, owned a smoke shop business in the City of Riverside. In late 2006 Patel hired Violet Mejia, who worked at a dry cleaning business next door to his smoke shop, as a cashier.

After she started working for Patel, Mejia asked him for money to buy a car. Patel loaned her $7,000. Although Mejia was supposed to make payments on the loan, she never made a payment. Patel fired Mejia a few days before the June 17, 2007 shooting incident at issue in this case.

On June 17, 2007, Patel drove to Mejia's apartment in Moreno Valley to talk to her about the money she owed him. His intention in going to Mejia's apartment was to either get the money she owed him or to get the pink slip to the car she purchased with the money. Mejia's brother, Benjamin Rizo, who worked for Patel, accompanied Patel to Mejia's apartment.

When Patel arrived with Rizo, Patel began a conversation about the car with Mejia in the parking lot. The car was not there.

While Patel was talking to Mejia in the parking lot, Hernandez, who was Mejia's boyfriend, drove up in the car. Patel recognized Hernandez, whom he had met a couple times at Patel's store.

After Hernandez parked the car, and referring to the car, Patel asked him, "what are [you guys] gonna do about this?" Hernandez told Patel he was not going to give him anything.

Patel then said to Mejia, "[W]hy are you guys doing this to me? I helped you. I gave you [a] job when you said that [you were] not making enough money." He reminded her that he helped her to buy the car and she told him she would pay him back. Although Patel was speaking to Mejia, Hernandez replied and again told Patel he was not going to give him anything. Hernandez then got in the car and turned on the engine. As Hernandez was getting ready to drive away, Patel, who was upset, kicked the front bumper of the car.

Hernandez got out of the car, told Patel, "I'm going to kill you," and then shot Patel once in the left leg. Hernandez got back in the car and drove away. At trial, Patel identified Hernandez as the person who shot him.

When Riverside County Deputy Sheriff Mario Moreno arrived at the scene, he saw Rizo in the parking lot holding Patel up and using his body to support Patel. Patel was transported to the Riverside County Hospital for emergency treatment.

Deputy Moreno testified that he spoke with Mejia at the scene about the shooting. Mejia told him that she had been dating Hernandez for about five months, but that she did not know his last name. Deputy Moreno noticed a tattoo on the back of Mejia's neck that said "Freddy," the name that was listed for Mejia's boyfriend.

Mejia told Deputy Moreno that she used to work for Patel at a smoke shop in Riverside, Patel had loaned her money to purchase a car, and she had not paid back the loan. Deputy Moreno also testified that Mejia told him Patel had come to the apartment to collect either the money that she owed him or the pink slip to the car she purchased with the money Patel loaned her.

Mejia also told Deputy Moreno that she was in front of the apartment with her brother (Rizo) and Patel when Hernandez arrived a short time later in the car. Mejia said Patel demanded the pink slip and Hernandez refused to give it to him. Mejia also told Deputy Moreno that, as she was putting her son into the back seat of the car, Hernandez told her to turn around. She turned around and then heard a gunshot. Mejia grabbed her child and ran to the apartment.

Riverside County Deputy Sheriff Steven Leone also arrived at the scene on June 17, 2007, after the shooting. He testified that Mejia's brother, Rizo, "seemed to be comforting" Patel. Deputy Leone spent about half an hour searching the surrounding area, but found no gun.

Deputy Leone testified that he interviewed Rizo as part of his investigation. He stated that Rizo was cooperative, answered the questions and was not evasive, and, when Deputy Leone asked him what happened, Rizo told him "the whole story."

Mejia testified that in June 2007 she and Hernandez, whom she called "Freddy," had been dating for about a year. She stated that Patel gave her money, but denied the money was a loan. She admitted that Patel gave her money to buy a car, and she had not paid him back. She denied that Patel had come to her apartment to collect the money or the car and said he never demanded the pink slip to the car. Mejia stated that the purpose of Patel's visit was to offer her back her job. She claimed she did not know who fired the gun. She also testified that she did not hear Hernandez threaten to kill Patel.

On cross-examination, when defense counsel asked Mejia whether her brother Rizo, rather than Hernandez, shot Patel, she stated her brother did not shoot Patel. She indicated that Hernandez was present when the shooting occurred.

B. The Defense

Hernandez testified on his own behalf. He indicated he worked for the company that did maintenance in the same strip mall in which Patel's smoke shop was located. He met Mejia when she worked at the dry cleaning business located in the same strip mall. They dated for about a year. Hernandez stated that he "dumped" Mejia because the relationship was not "solid." He also stated that he knew Mejia's brother, Rizo.

Hernandez testified he did not shoot Patel, he did not have a gun on June 17, 2007, and he did not threaten Patel on that date. When asked where he was on the date of the shooting, Hernandez stated he "could have been three places," but he did not have a specific recollection of where he was that day.

Hernandez admitted he had been convicted of five felonies: (1) in 1994, possession of cocaine base for sale; (2) in 1995, unlawful taking or driving a vehicle; (3) in 2000, assault by means of force likely to produce great bodily injury; (4) in 2002, grand theft auto; and (5) in 2006, petty theft with a prior conviction.

DISCUSSION

I. DENIAL OF HERNANDEZ'S BATSON/WHEELER MOTIONS

Hernandez contends the prosecution used peremptory challenges in a discriminatory manner to strike two Hispanic males from the jury, thereby violating his state and federal constitutional rights and requiring reversal of his convictions. We reject this contention.

A. Applicable Legal Principles

The use of peremptory challenges to excuse prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U. S. 79, 89 (Batson).)

There are three steps in establishing a Batson/Wheeler claim. A defendant must make a prima facie case by showing that the totality of the relevant facts gives rise to a discriminatory inference. (Johnson v. California (2005) 545 U.S. 162, 168; see also People v. Alvarez (1996) 14 Cal.4th 155, 193 (Alvarez) [a prosecutor is presumed to have exercised peremptory challenges in a constitutional manner, and the defendant bears the burden of making an initial prima facie showing of purposeful discrimination].) If the defendant meets his burden of making such a prima facie showing, the People must show race-neutral reasons for the challenge. (Johnson, supra, at p. 168.) If the People meet this burden, the trial court must then decide whether the defendant has proven purposeful discrimination. (Ibid.)

The California Supreme Court has explained that "[t]he proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge." (People v. Reynoso (2003) 31 Cal.4th 903, 924, italics omitted.) "All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory." (Ibid.)

The prosecutor's explanation need not rise to a level that justifies the exercise of a challenge for cause. (People v. Williams (1997) 16 Cal.4th 635, 664.) "[A]dequate justification by the prosecutor may be no more than a 'hunch' about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as 'a mask for race prejudice' [citation]." (Ibid.)

1. Standard of review

When a trial court denies a Batson/Wheeler motion based on its finding that no prima facie case of group bias was established, the reviewing court considers the record of the voir dire and affirms the ruling if it is supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 993 (Jenkins).) The reviewing court "accord[s] particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand." (Id. at pp. 993-994.)

C. Analysis

Hernandez, who is Hispanic, claims the prosecutor used peremptory challenges in a discriminatory manner to excuse two prospective Hispanic jurors in violation of his constitutional rights. Specifically, he asserts the court "committed reversible error when it concluded that a prima facie showing of discriminatory exclusion on the basis of race had not occurred." He also claims the exclusion of these jurors "resulted in the improper removal of two Hispanic males suitable to serve," and "[s]uch removal violated [his] right to a fair trial under the state and federal constitutions and to a trial by a jury drawn from a representative cross-section of the community." We reject these claims.

As Hernandez points out, in the first panel of prospective jurors, three were excused for cause and 10 others, including juror No. 10, were excused by peremptory challenge. In the second panel, three more were excused for cause and four others, including juror No. 1, were excused by peremptory challenge. Thus, of the total of 20 potential jurors excused either for cause or by peremptory challenge, only two Hispanics were excused by the prosecution. As we shall discuss, the court expressly found "we do have Hispanic jurors still on the panel."

1. Valadez

a. Background

After the prosecutor excused juror No. 10 from the first panel (hereafter juror No. 10), defense counsel objected by making an oral Batson/Wheeler motion, citing Hernandez's constitutional right to a jury drawn from a representative cross-section of the community. The court invited the prosecutor to make a record, but stated, "I can see reasons why the person would have been excused" because "[he] previously had a DUI, he has a brother who is convicted of various charges such as domestic violence, rape, [and] robbery," and "those reasons alone . . . would be sufficient." The court then stated, "I don't find a prima facie showing."

The prosecutor argued that, "[a]s long as that's the Court's ruling, I just want to make that clear for the record, that there's no prima facie [showing], that there's no inference . . . ." He then stated, "Yes, he had tattoos on his arm. He said the court is all about money. He said the [district attorney is] worried about his record. He's living with a woman with a child and unmarried. And I can probably go on from there. There are numerous reasons to [excuse] him."

The court then ruled that the defense had failed to make the requisite prima facie showing, finding "there [were] numerous reasons to excuse this juror if you're a prosecutor. I . . . don't see a prima facie showing."

b. Analysis

According particular deference to the trial court as the fact finder, as we must (Jenkins, supra, 22 Cal.4th at pp. 993-994), we conclude that substantial evidence supports the court's ruling. The record shows the court asked prospective jurors, "[I]s there anybody here who just really does not want to be on this case?" Juror No. 10 was one of the prospective jurors who raised his hand to indicate he did not want to be on the case. His unwillingness to serve on the jury in this matter was a legitimate, race-neutral reason that supports both the prosecutor's exercise of a peremptory challenge to exclude him from the jury and the court's finding that the defense failed to make the requisite prima facie showing of purposeful discrimination. (See Alvarez, supra, 14 Cal.4th at p. 193.)

In addition, during the court's examination of juror No. 10, Valadez indicated he had been convicted of driving under the influence. A prior arrest is a race-neutral reason for excluding a prospective juror. (Wheeler, supra, 22 Cal.3d at p. 275.) Thus, the juror's prior arrest for, and conviction of, driving under the influence was a legitimate, race-neutral reason for his exclusion.

Juror No. 10 also stated during the court's examination that his brother was "sentenced to prison about a year and a half ago" based on his convictions for "rape, domestic violence, robbery, [and] kidnapping." When the court asked whether the juror's brother was "treated fairly by the justice system," his response suggested he harbored a lack of respect for the judicial system: "If I didn't get him a lawyer, probably he wouldn't have because they're trying to give him 40-to-life. And I meant─I guess the Court was all about money." (Italics added.) Juror No. 10's negative attitude about the judicial system─demonstrated by his statement, "I guess the Court was all about money"─was a legitimate, race-neutral reason that supports both the prosecutor's exercise of a peremptory challenge to excuse him and the court's finding that the defense failed to make the requisite prima facie showing of purposeful discrimination.

When the court asked juror No. 10 whether there was "anything about that experience that's going to prevent you here from being able to be a fair juror," his response suggested he harbored a lack of respect for the district attorney: "Not really. But I think the DA was just worried about his record. He wanted to give my brother pretty much the max what he could give him." (Italics added.) The juror's negative attitude about the prosecution in his brother's case was also a legitimate, race-neutral reason that supports both the prosecutor's exercise of a peremptory challenge to exclude him from the jury and the court's finding that the defense failed to make the requisite prima facie showing of purposeful discrimination.

For the foregoing reasons, we conclude the court properly found that Hernandez, through his counsel, failed to meet his burden of making the requisite prima facie showing.

2. Castro

a. Background

After the prosecutor excused juror No. 1 from the second panel (hereafter juror No. 1), defense counsel objected by making an oral Batson/Wheeler motion, stating that this juror was "the second Hispanic male kicked off of the jury by the . . . prosecution." Counsel added, "I think that I have shown a pattern of . . . discriminatory peremptory challenges by the People. [Juror No. 1] is also . . . a Hispanic male. And so I see a pattern of excluding those individuals from the jury."

The court stated it "[did] not find a prima facie showing [of purposeful discrimination]" and added that, "of course, we do have Hispanic jurors still on the panel."

The court again invited the prosecutor to make a record. The prosecutor stated, "I'd like to confirm that there is no finding of a pattern whatsoever." The prosecutor then gave his reasons for excusing juror No. 1, stating, "He indicated that he had some family with some violent past. [Section] 245 was mentioned. [Section] 459, as well. He had his arms crossed during the questioning."

The court replied, "All right. And I do recall that [juror No. 1] indicated that he did have some gang issues in the past with family members. And there may be evidence, of course, in this trial as to one of the witnesses in this case that may be gang-related. I don't know if that's going to come out or not. It certainly won't as to Mr. Hernandez. But it may as to one of the People's witnesses. So that certainly is an appropriate reason. But in any event, the Court did not find a prima facie showing."

b. Analysis

We conclude substantial evidence supports the court's ruling with respect to the prosecutor's exercise of a peremptory challenge to exclude juror No. 1 from the jury. When the court asked about "[a]ny scenario in which either you or anyone you know may have been arrested, charged with, or convicted of any sort of a crime," juror No. 1 replied:

"Yes. Very─a lot of numerous family members of mine. Were gang-related, domestic violence. I'm trying to think what else. Shooting people. They've been arrested. A few of them were illegal, and they were rushed back to Mexico."

When the court asked him whether "[a]nything about those experiences cause you any concerns here in your ability to be a fair juror," juror No. 1 replied: "No. I'm a little bit over that, so─." (Italics added.)

The fact that "numerous" members of the juror's family had been arrested for involvement in gang-related activity, domestic violence, and "[s]hooting people" is a legitimate, race-neutral reason that supports both the prosecutor's exercise of a peremptory challenge to exclude him from the jury and the court's finding that the defense failed to make the requisite prima facie showing of purposeful discrimination, particularly in light of the juror's admission that he was only "a little bit over" those experiences.

We note it is undisputed that Hispanics remained on the jury after the prosecutor used peremptory challenges to excuse juror No. 10 and juror No. 1. The court expressly found "we do have Hispanic jurors still on the panel."

For the foregoing reasons, we conclude the court properly found that Hernandez, through his counsel, failed to meet his burden of making the requisite prima facie showing regarding his Batson/Wheeler motion challenging the exclusion of juror No. 1 from the jury. Based on the record presented, we also conclude that Hernandez's claim that juror No. 1's exclusion from the jury violated Hernandez's constitutional rights is without merit.

II. MARSDEN

Hernandez also contends the court erred in denying his requests for new appointed counsel under Marsden, supra, 2 Cal.3d 118, thereby necessitating reversal of his convictions. We reject this contention.

A. Applicable Legal Principles

In People v. Ortiz (1990) 51 Cal.3d 975, our high state court explained both the limited nature of an indigent criminal defendant's right to appointed counsel as delineated in its prior decision in Marsden, supra, 2 Cal.3d 118, and the scope of the burden an accused must carry in bringing a Marsden motion to substitute one appointed counsel for another: "In [Marsden], we held that a defendant is deprived of his constitutional right to the effective assistance of counsel when a trial court denies his motion to substitute one appointed counsel for another without giving him an opportunity to state the reasons for his request. A defendant must make a sufficient showing that denial of substitution would substantially impair his constitutional right to the assistance of counsel [citation], whether because of his attorney's incompetence or lack of diligence [citations], or because of an irreconcilable conflict [citations]. We require such proof because a defendant's right to appointed counsel does not include the right to demand appointment of more than one counsel, and because the matter is generally within the discretion of the trial court." (People v. Ortiz, supra, 51 Cal.3d at p. 980, fn. 1, italics added.)

A trial court's denial of a Marsden motion does not constitute an abuse of discretion unless it is shown the failure to replace counsel substantially impaired the defendant's right to effective assistance of counsel. (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)

In order to establish ineffective assistance based on an alleged failure to investigate, a defendant "must prove that counsel failed to make particular investigations and that the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense." (In re Sixto (1989) 48 Cal.3d 1247, 1257.)

B. Analysis

Hernandez made six Marsden motions for new appointed counsel, three of which he made pretrial on February 27, 2009,*fn2 March 9, and April 7; two of which he made during trial on May 4 and May 12; and the last of which he made on the date of sentencing, June 19.

Having reviewed all six Marsden proceedings in light of the record as a whole, we conclude for reasons we shall explain that Hernandez has failed to meet his burden of showing that the court's denial of his six requests for new appointed counsel substantially impaired his constitutional right to effective assistance of counsel. On the contrary, the record shows that defense counsel Dittman provided competent and reasonably diligent assistance.

1. Pretrial Marsden motions:

a. February 27 Marsden motion

i. Background

Hernandez brought his first Marsden motion on February 27. He complained that his counsel, William Dittman, failed to consult with him prior to trial, failed to provide him with discovery, failed to conduct a pretrial investigation, and failed to interview potential defense witnesses, including percipient witnesses Mejia, who was his "ex-girlfriend," and Mejia's brother, Rizo. Hernandez also complained that Dittman failed to interview the owner of the pizza parlor located next to the smoke shop, who was later identified as Sherif Khafaga and also failed to prepare a diagram of the crime scene. Hernandez denied he was at the crime scene on the day of the shooting and indicated a diagram of the scene would help him "make a mental reconstruction and be better prepared for trial."

Dittman responded that he had been unable to return Hernandez's phone calls recently because he was in trial, but prior to that he had met with Hernandez a couple of times in jail and had discussed the case with him. He indicated his investigator tried to interview Patel, who did not want to make a statement, and the investigator was unable to locate Mejia and Rizo. Noting that Hernandez was indicating he was not at the crime scene on the day of the shooting, Dittman explained that the defense theory "would be that Mr. Patel and those witnesses are lying," and he (Dittman) could prepare a diagram of the crime scene. Dittman also expressed doubt about the wisdom of calling Mejia as a defense witness, stating that it "might not be good to have Ms. Mejia as a witness in that she does identify Mr. Hernandez as being at the scene."

ii. Ruling

The court denied Hernandez's February 27 Marsden motion, finding "it really has no merit in it." Instructing Hernandez's counsel to talk to Hernandez, the court also stated: "[Y]ou make a note what Mr. Hernandez wants, I would ask you to do. So if he wants you to find [Mejia], you find her. [¶] You explain [to Hernandez that] if he finds her, and she doesn't like him, and the district attorney wouldn't have found her, and now she burns him at the stake when they come to trial, that is a risk he runs. But if he wants to run that risk, that is his choice."

iii. Analysis

As the court expressly found, Hernandez's February 27 Marsden motion lacked merit. Although Hernandez complained that Dittman failed to consult pretrial with him, Dittman explained that he had been in trial recently and thus had been unable to return Hernandez's phone calls, but he had previously met with Hernandez a couple of times to discuss the case. He also indicated his investigator also talked with Hernandez to determine whether there were any defense issues in addition to the ones Dittman found. Dittman indicated he was going to meet with Hernandez again to prepare for the trial. The record thus shows Dittman did consult pretrial with Hernandez.

Hernandez also complained that Dittman had failed to interview potential defense witness Mejia and Rizo. However, Dittman indicated that his investigator had not yet been able to locate them, but he was continuing to try to find them. This complaint thus lacked merit.

Although Hernandez also complained that Dittman had failed to prepare a diagram of the crime scene, Dittman informed the court he could have such a diagram prepared. This complaint thus did not warrant appointment of new counsel.

The foregoing record does not show that Hernandez's constitutional right to effective assistance of counsel was substantially impaired by the court's denial of his first Marsden motion. We thus conclude the court did not abuse its discretion in denying that motion.

b. March 9 Marsden motion

i. Background

Hernandez brought his second Marsden motion on March 9. He complained again that defense counsel Dittman failed to obtain certain discovery in the case from the prosecution and also failed to conduct an adequate review of the available evidence. Hernandez specifically complained that Dittman failed to obtain records of text messages between Mejia and Patel, which would prove the charges were false and that they were blaming the incident on him because Patel was jealous of the relationship between Mejia and Hernandez.

Hernandez indicated he wanted to present an alibi defense, asserting he may have been in Los Angeles, San Fernando, or San Gabriel on the day of the shooting. Hernandez indicated he wanted Dittman to talk to Hernandez's civil lawsuit attorney about his "injuries" because he had been Tasered seven times in the face and the back of the head, and he was "losing short term memory of certain things."

The court then asked Hernandez, "You want the jury to know you were Tasered seven times, and that's why your memory isn't good, and that's why you don't remember where you were on [June 17, 2007]?" Hernandez replied, "Yes." The court told Hernandez, "[L]et me just say, if you use the defense that you don't have good short-term memory because you were Tasered seven times, [the jury is] going to think you were Tasered seven times because you were not cooperative with the police on several different occasions. That would reflect badly on you, and then you say you can't remember where you were anyway. So it's not much of a defense."

Dittman responded he had obtained a copy of the taped interview of the victim, Patel, and digital photos of the injuries, and he agreed to request pictures of the crime scene and to subpoena Patel's medical records. When the court stated, "If I were your lawyer, I would probably not subpoena them, because I would be happy with not making a big deal about [Patel's] injuries," Hernandez replied, "Okay." The court responded, "Because I would say, 'You know, ladies and gentlemen, they're charging my client with attempted murder here. We don't have any medical reports. We don't have anything to suggest this was anything other than a scratch. The person walked through it. And if you're trying to kill somebody[,] why are you shooting them in the leg anyway? . . .' So that's a real close tactical call."

Regarding Patel's and Mejia's text messages, Dittman said he could reissue subpoenas for the records. The court asked Dittman to do so, "[e]specially if part of the defense is going to be this was a conspiracy between [Patel] and [Mejia] to name [Hernandez] to get him out of the way, then you would want to have these conversations." Dittman informed the court he had met twice with Hernandez to discuss Hernandez's possible defenses and indicated Hernandez told him he wanted to present the defense that he was not at the scene on the day of the shooting. Hernandez then told the court, "I'm not going to say I was there, because if I say I was there and they cross-examine me, I wouldn't know what to say." The court then questioned Hernandez's need for Patel's medical records in light of Hernandez's defense that he was not at the shooting scene.

ii. Ruling

The court denied Hernandez's March 9 Marsden motion, noting that Dittman was going to obtain the pictures and medical records, and stating, "[I]t's clear [Dittman has] spent a lot of time working on the case." Addressing Hernandez, the court added that Dittman "may, in fact, be spending more time than is justified just trying to appease what may be unreasonable requests by you."

iii. Analysis

The court did not abuse its discretion in denying Hernandez's March 9 Marsden motion. As already noted, Hernandez complained that Dittman had not obtained records of text messages between Patel and Mejia, which Hernandez claimed would support his defense theory that Patel was jealous of his (Hernandez's) relationship with Mejia and that Patel and Mejia conspired to identify Hernandez as the shooter. However, Dittman informed the court he would reissue subpoenas for those records.

Regarding Hernandez's complaints that (1) he wanted to provide an alibi defense that on the day of the shooting he may have been in Los Angeles, San Fernando, or San Gabriel, but he could not remember where he was because he was losing short-term memory as a result of having been Tasered seven times in the face and the back of the head, and (2) he wanted Dittman to talk to Hernandez's civil lawsuit attorney about his injuries, the court properly indicated this was "not much of a defense" because if the jurors heard that Hernandez had been Tasered seven times, they would infer he was not cooperative with police and it would reflect badly on him.

In any event, a conflict over the tactical decisions or the trial strategy to pursue does not constitute the type of "irreconcilable conflict" that demonstrates counsel's representation has become inadequate. (People v. Welch (1999) 20 Cal.4th 701, 728-729 (Welch), overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 90-91.) Here, the record indicates that Hernandez's complaint involves a conflict over whether he should present a Taser/loss of memory alibi defense. Such a conflict does not establish that Dittman's representation was inadequate. (Welch, supra, at pp. 728-729.) Accordingly, we conclude Hernandez has failed to show his constitutional right to effective assistance of counsel was substantially impaired by the court's denial of his second Marsden motion.

c. April 7 Marsden motion

i. Background

Hernandez brought his third Marsden motion, in writing, on April 7. In his three-page handwritten motion, Hernandez asserted six specific complaints against his appointed counsel, Dittman: (1) failure to "diligently prepare for trial," resulting in failure to "protect [Hernandez's] right to a speedy trial"; (2) failure to obtain digital photographs of the victim's (i.e., Patel's) injuries; (3) "refus[al] to interview potential impeachment witnesses for trial," and "claim[ing] they cannot be located"; (4) failure to obtain "information of material evidence" about the "victim's car," which may have had "exculpatory value"; (5) "refus[al] to obtain rent receipts" showing that Patel paid Mejia's rent; and (6) failure to obtain Mejia's and Patel's phone and text message records.

Dittman responded to these six complaints. First, regarding his preparation for trial, Dittman explained that he succeeded in obtaining dismissal of the "great bodily injury enhancement, and the gun enhancement for causing great bodily injury" and informed the court that "[t]he only life sentence charge that is left against Mr. Hernandez is the attempted murder with premeditation."

Second, regarding the photos of Patel's injuries, Dittman indicated he obtained the photos and showed them to Hernandez in the jail. Hernandez acknowledged he had seen the photos of Patel's wounds. Dittman elaborated that "[t]here [are] two sets of photographs. There is a set of three or four photographs of the actual injury itself. And there is also a set of crime scene photographs that also depict Mr. Patel lying on the sidewalk with his injuries. I showed both sets of photographs to Mr. Hernandez in the evening jail visit." When the court asked Hernandez whether he had seen both sets of photographs, Hernandez replied, "He showed me─he had them in his hand like this, and he showed them to me . . . ."

Third, regarding the potential impeachment witnesses, Dittman informed the court he had attempted to find Mejia and Rizo, but could not locate them.

Fourth, regarding the car, Dittman informed the court that he had obtained the DMV records, which showed "the car had been essentially sold to a pick and pull type of business establishment" and thus salvaged. Hernandez complained that Dittman should have obtained the car because it was "used in the crime scene." When the court asked Hernandez to explain, Hernandez replied, "Basically the way it was stated on the [police] report was the suspects pulled out, stopped, got out of the car, shot Mr. Patel and got in the car and fled away." The court asked him, "What does the car prove?" Hernandez responded, "[F]or . . . gun residue if the car was actually used in the crime scene." The court stated, "It seems to me that is highly speculative. That if the car is the victim's car you would need a court order anyway. And by the time this is brought to anybody's attention any residue would . . . certainly have been long gone. And, finally, apparently Mr. Dittman has found out for you that the car has now been salvaged . . . ."

Fifth, regarding rent receipts, Dittman explained that he had subpoenaed the rent receipts from Town Gate Apartments, and he asked the property manager to deliver the records directly to the court. Addressing Hernandez, the court stated, "I assume this is to show that the witness Mejia is being financially compensated to testify against you." Hernandez replied, "Testify against me."

Last, regarding the phone and text message records, Dittman indicated he had subpoenaed those records from the phone company.

ii. Ruling

The court denied Hernandez's April 7 Marsden motion, stating, "I've had a lot of cases where Marsden motions have been made where there has been a lot stronger showing of the attorney's lack of care, attention, or knowledge about the case than this case. It sure seems to me that Mr. Dittman is probably putting out a 150 percent effort on your case compared to other cases. I would be surprised if he can give this kind of attention to all of his cases." The court found that "literally no stone has been left unturned. The witnesses you want impeached are being sought. The photographs have been secured. The rent receipt is being secured. [Dittman] has contacted the phone companies all at your particular request. And he has even tracked down the car. So I really think that you are being unreasonable in your expectation and complaints about Mr. Dittman." (Italics added.)

iii. Analysis

As the foregoing record shows, Hernandez increased the number of his complaints against his appointed counsel in his three-page April 7 Marsden motion, which raised six complaints that the court characterized as "unreasonable." We conclude the court did not abuse its discretion in denying this Marsden motion.

Hernandez's first complaint that Dittman failed to diligently prepare for trial lacked merit. As already noted, Dittman explained that he succeeded in obtaining dismissal of the great bodily injury enhancement allegation and the gun enhancement allegation for causing great bodily injury and informed the court that "[t]he only life sentence charge that is left against Mr. Hernandez is the attempted murder with premeditation." As will appear, Dittman was continuing to pursue his investigation in preparation for trial.

Hernandez's second complaint that Dittman had failed to obtain digital photographs of the victim's (i.e., Patel's) injuries also lacked merit. Dittman informed the court he had obtained photos of those injuries and had shown them to Hernandez in the jail. Hernandez admitted during the hearing that he had seen the photos of Patel's wounds.

Hernandez's complaint that Dittman was refusing to interview Mejia and Rizo similarly lacked merit. Dittman explained his investigator could not locate them.

Although Hernandez next complained that Dittman failed to obtain "information of material evidence" about the car Mejia bought with the money she obtained from Patel, Dittman informed the court he had obtained the DMV records for that car, which showed "the car had been essentially sold to a pick and pull type of business establishment," indicating it had been dismantled for salvage. The record thus shows Dittman did try to obtain forensic evidence related to the car.

Hernandez also complained that Dittman was refusing to obtain rent receipts that he claimed would show Patel was paying Mejia's rent and would thereby support his defense theory that they were conspiring against him. However, Dittman informed the court he had subpoenaed the rent receipts from Town Gate Apartments, and he asked the property manager to deliver the records directly to the court. The record thus shows Hernandez's claim that Dittman was refusing to obtain rent receipts is unsubstantiated.

Last, although Hernandez again complained that Dittman had failed to obtain Mejia's and Patel's phone and text message records, Dittman informed the court he had subpoenaed those records from the phone company.

In sum, the record shows that all of Hernandez's complaints about Dittman's representation were unsubstantiated and, as the court found, "unreasonable." We conclude Hernandez has failed to show his constitutional right to effective assistance of counsel was substantially impaired by the court's denial of his third Marsden motion.

2. Marsden motions at trial

a. May 4 Marsden motion

i. Background

Hernandez brought his fourth Marsden motion on May 4 during the jury selection process, asserting three specific complaints against Dittman: (1) failure to secure Khafaga as an impeachment witness; (2) failure to obtain the records of text messages between Patel and Mejia; and (3) insisting that Hernandez plead guilty.

Dittman responded to these complaints. First, regarding Khafaga, Dittman indicated that Khafaga had been subpoenaed to appear in the morning on this date, and Khafaga failed to appear. Dittman said, "I'm going to ask for the Court to issue a warrant based on the Court's order, but hold it for 24 hours so I can get in contact with him." Addressing Hernandez, the court said, "[A]pparently, Sir, [Khafaga's] under subpoena. And the fact he didn't show obviously isn't your attorney's fault. And assuming [Khafaga's] been properly served, I'll go ahead and issue and hold a warrant." Dittman added, "[Khafaga's] essentially an impeachment witness. . . . I'll call him if he becomes relevant. Right now, I don't think he's relevant. But I've got him under subpoena because I know that Mr. Hernandez has asked me to do that."

Second, regarding the text message records, Dittman informed the court he had subpoenaed the records from the company that does the handling for the phone company, and indicated he had not received the records. Dittman added that he had received a letter from that company informing him it was no longer doing business in California and indicated it was thus unlikely he would receive the records. Dittman also added, "I let Mr. Hernandez know that. And we went forward with the trial with that knowledge."

Last, regarding Hernandez's complaint that Dittman was insisting that he plead guilty, the court told Hernandez that Dittman, "obviously, has an obligation to let you know what he thinks may be the result of the case. Mr. Dittman's tried a lot of cases. In fact, he's tried cases in this court before. And he has an obligation, under his ethical obligations, to advise you as to what he thinks the outcome of the case may be. [¶] So the fact that you believe that you're innocent─and he's not necessarily saying that you're guilty, just that you may have a more favorable disposition, is part of his obligation as an attorney to give you advice."

ii. Ruling

The court denied Hernandez's May 4 Marsden motion, stating, "[the] Court finds insufficient basis to relieve Mr. Dittman at this time." The court added that, "[i]t appears to me that [Dittman is] certainly on top of the case and is prepared to represent you to the fullest . . . ."

iii. Analysis

We conclude the court did not abuse its discretion in denying Hernandez's May 4 Marsden motion. Although Hernandez complained that Dittman failed to secure Khafaga as a witness, as already noted, Dittman explained that Khafaga had been subpoenaed to appear in the morning on this date, but Khafaga failed to appear. Because the record shows Dittman then asked the court to issue a warrant but hold it for 24 hours so I can get in contact with him," we conclude the court properly found that the fact Khafaga did not appear was not Dittman's fault.

Hernandez's complaint that Dittman had not obtained records of the text messages between Patel and Mejia did not warrant appointment of new counsel. Dittman informed the court he had subpoenaed the records from the company that does the handling for the phone company and indicated he had not received the records. The record thus shows Dittman was attempting to obtain those records.

Last, although Hernandez complained about Dittman's advice that he plead guilty, the court properly indicated to Hernandez that Dittman was fulfilling his ethical obligation as defense counsel to advise Hernandez.

In sum, the record shows Hernandez's complaints about Dittman's representation were unsubstantiated. Accordingly, we conclude Hernandez has failed to show his constitutional right to effective assistance of counsel was substantially impaired by the court's denial of his fourth Marsden motion.

b. May 12 Marsden motion

i. Background

Hernandez brought his fifth Marsden motion on May 12, after the defense rested its case on May 11. Hernandez made three specific complaints against Dittman: (1) failure to present evidence about what happened to the car Mejia bought with the money she received from Patel; (2) failure to obtain forensic evidence from the car, such as fingerprints and gun residue; and (3) failure to call Mejia's brother, Rizo, as a defense witness.

Regarding the car and forensic evidence, the court stated that this case "boils down to" whether the jury believed Hernandez was at the scene at the time of the shooting and found that whether the car was later sold for salvage or destroyed was "irrelevant."

Regarding Rizo, Dittman explained that he was not planning on calling Rizo as a defense witness because "the police report is indicating that [Hernandez] is the person that did the shooting." (Italics added.) Dittman added, "I think that the prosecutor has the burden of proof. They have to prove the case beyond a reasonable doubt. Not presenting Mr. Rizo is a big hole in the case, which I will take advantage of during the closing argument." In response, the court stated that, "[u]nless [Rizo] wants to fess up to an attempted murder charge, the best you will get" is Rizo's denying he told the police that Hernandez was the shooter or his saying he did not see who did the shooting. Noting that the prosecutor would then bring in the original police report to show Rizo's original statement that Hernandez was the shooter, the court told Hernandez, "There would be another witness against you. I can see a reason why Mr. Dittman would not call him. It may be better not to have [Rizo] here at all and then argue."

ii. Ruling

The court denied Hernandez's May 12 Marsden motion on the ground there was an "insufficient basis to remove Mr. Dittman at this time," finding that Dittman "is doing what he can given the factual scenario in the case and the evidence that has been presented."

iii. Analysis

We conclude the court did not abuse its discretion in denying Hernandez's May 12 Marsden motion. Hernandez's complaints that (1) Dittman failed to present evidence about what happened to the car Mejia bought with the money she received from Patel, and (2) Dittman failed to obtain forensic evidence from that car, did not warrant appointment of new counsel. The court had previously addressed the forensic evidence issue in connection with Hernandez's April 7 Marsden motion (discussed, ante) and properly denied that motion on that ground. With respect to Hernandez's claim he was entitled to new appointed counsel because Dittman failed to present evidence about what happened to the car, the court properly found that whether the car was sold for salvage or destroyed was not relevant to the key issue of whether Hernandez was at the scene at the time of the shooting.

Regarding Hernandez's complaint that Dittman failed to call Rizo as a defense witness, the record shows Dittman explained he made a tactical decision to not call Rizo as a defense witness because the police reports indicated that Rizo had identified Hernandez as the shooter, and thus having Rizo testify would not assist the defense. As already discussed, a conflict over tactical decisions does not constitute the type of "irreconcilable conflict" that demonstrates counsel's representation has become inadequate. (Welch, supra, 20 Cal.4th at pp. 728-729.)

As the record shows Hernandez's complaints about Dittman's representation were unsubstantiated, we conclude he has failed to show his constitutional right to effective assistance of counsel was substantially impaired by the court's denial of his fifth Marsden motion.

3. Marsden motion at sentencing

a. June 19 Marsden motion

i. Background

Hernandez brought his sixth, and last, Marsden motion on June 19, the date of the sentencing hearing. Hernandez complained that Dittman was "unprepared" for the sentencing hearing.

Dittman explained that he had been out of the office for two days and had just received the probation report that morning. However, he indicated he had read the report and told the court, "If the Court wants to go forward with the sentencing today, I'll go forward with the sentencing today. I can make the appropriate objections concerning the report." He added, "I'll be prepared."

The court then told Hernandez that his attorney "[is] saying . . . he's ready to go forward today. It's just he wants to address some of the issues in [the report]. [¶] If you don't want to waive time any further and you want to proceed, your attorney's indicating he's prepared to proceed. And we'll do the sentencing today. So I have no problem with that."

Hernandez replied, "I'm prepared. I'm prepared to go forward for my sentencing."

ii. Ruling

Stating that it had heard from Hernandez, the court denied his June 19 Marsden motion.

iii. Analysis

We conclude Hernandez has failed to show his constitutional right to effective assistance of counsel was not substantially impaired by the court's denial of his June 19 Marsden motion. Although Hernandez complained that Dittman was unprepared for the upcoming sentencing hearing that day, Dittman indicated he had read the June 17 probation report and was prepared, the court gave Hernandez the opportunity to waive time and continue the sentencing to another date, and Hernandez elected to proceed with his sentencing. We thus conclude Hernandez has failed to show his constitutional right to effective assistance of counsel was substantially impaired by the court's denial of his sixth and last Marsden motion.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

McCONNELL, P. J.

IRION, J.


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