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Andrew Wright Gill v. Michael Martel

May 24, 2011

ANDREW WRIGHT GILL, PETITIONER,
v.
MICHAEL MARTEL, RESPONDENTS.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

Petitioner, Andrew Wright Gill, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of sixty-four years and eight months to life imprisonment after being convicted by a jury of numerous crimes including: (1) kidnapping to commit spousal rape, rape by a foreign object and forcible oral copulation; (2) spousal rape; (3) rape by a foreign object; (4) forcible oral copulation; (5) making criminal threats; (6) attempted rape by a foreign object; (7) infliction of corporal injury on a spouse; (8) cutting a utility line; and (9) residential burglary. Petitioner raises four claims in his amended federal habeas petition; specifically: (1) the trial court erred when it denied Petitioner's motion to disqualify the district attorney ("Claim I"); prosecutorial misconduct ("Claim II"); (3) the trial court erred in allowing Petitioner's statement to police to be admitted into evidence ("Claim III"); and (4) Petitioner's preliminary examination was held in violation of California Penal Code § 859(b) which violated Petitioner's Constitutional rights ("Claim IV"). For the following reasons, Petitioner's amended federal habeas petition should be denied.

II. FACTUAL BACKGROUND*fn1

Mark Gantt had lived next door to the Gills for several years and saw them every day or so. On the morning of January 31, 2004, he met defendant for breakfast at Denny's restaurant around 9:00 a.m. Defendant was "very agitated" and told Gannt that T.G. [Petitioners' wife] would not let him back in the house. Gantt tried to calm defendant and advised him to stay away from the house to avoid causing more problems.

Gannt met defendant later that morning at the Home Depot at T.G.'s request. T.G. had given Gantt a suitcase, $50 and a note to deliver to defendant. The gist of the note was "get a job, be accountable, and talk to me." Gantt collected a set of house keys from defendant and returned them to T.G.

Between noon and 1:00 p.m, Gantt observed that defendant had parked his car in front of the house. Gantt spoke with T.G. on the phone. She told him that she was afraid of what defendant might do. Gantt went outside and spoke with defendant for 15 or 20 minutes. According to Gantt, defendant was very upset. Gantt spoke with defendant a second time an hour later, describing defendant as "very, very upset."

At that point, Gantt advised T.G. to call the police and called the police himself. The police officers arrived around 4:00 p.m. and spoke with both defendant and T.G. T.G. asked for an emergency protective order, but the request was denied. The officers suggested to defendant and T.G. that one of them leave in order to avoid any further problems. Defendant responded that it was unfair for him to leave. He told the officers that he intended to wait in his car until T.G. allowed him back into the house.

Defendant telephoned his house around dinnertime in an attempt to resolve things with T.G., but she did not answer. Defendant left a message indicating that, "there was going to be trouble" if T.G. did not speak to him.

Gantt met with defendant in front of the house for a third time later that evening. He urged defendant to leave, but gave him a blanket in case he decided to stay. Defendant indicated that he planned to stay at a friend's house. Gantt checked around 11:00 p.m. and defendant's car was gone.

The Assault and Kidnap of T.G.:

Just after 1:00 a.m., T.G. heard a loud bang on the front door. [FN 2] She ran to the room of her 10-year-old son D.G., to look out the front of the house. T.G. ran back to her bedroom and heard another loud crash that sounded like glass breaking. She tried to telephone Gantt but the line was dead. [FN 2] T.G's account of the events is taken from her trial testimony, her interview with police detectives on February 1, 2004, and her interview with the deputy district attorneys on February 10, 2004.

A few seconds later, defendant walked into the bedroom, turned on the lights, and said, "[S]urprise." T.G. testified that defendant was "really angry," cursing and calling her a "f -ing bitch." Defendant grabbed T.G. by the hair and slapped her across the mouth. He hit her again when she tried to get a Kleenex to wipe her bloody lip. Defendant pulled T.G. around the room by her hair and kicked her in the side when she fell to the ground. He dragged T.G. to a futon couch near the window and told her that she had "made the biggest mistake of [her] life," and was going to "pay tonight," and was going to "die tonight."

T.G. testified that it was like defendant had "snapped" and it was not the first time it had happened. She could recall three incidents where he yelled and hit her.

Defendant dragged T.G. from the bedroom to the garage. Once there, defendant forced T.G. to lie face down on the floor and take off all of her clothes. He put a rag in T.G.'s mouth and taped it in place by wrapping duct tape around her head. Defendant threatened to cut off T.G.'s right arm with a chainsaw.

Defendant proceeded to sexually abuse T.G. in the garage. First, defendant put his fist up her vagina. He then inserted a flashlight in T.G.'s vagina and tried to insert it in her anus. Next, defendant raped T.G. by inserting his penis in her vagina, but he stopped before ejaculating.

Defendant took T.G. back into the house and continued to threaten T.G., stating, "you're going to pay for what you did to me," and "You're dying tonight." Defendant asked T.G. if she wanted to say goodbye to anyone.

Defendant put T.G. in the backseat of the family car, face down, completely naked. He bound her feet together at the ankles and tied her feet to her wrists with rope. Defendant drove toward Sacramento.

Eventually, defendant reached back and removed the duct tape from T.G.'s head and the gag from her mouth, tearing out pieces of hair in the process. As they got closer to a snowy area, defendant pulled off the road and got in the back seat with T.G. He forced her to orally copulate him. He ejaculated in T.G.'s mouth and told her to swallow it. T.G. cooperated because she was "scared to death for [her] life." At that point, defendant allowed T.G. to get dressed and join him in the front seat of the car. However, he tied her hands and feet together to prevent her from doing "something stupid up front."

Now that T.G. was sitting upright in the seat, she saw that they were close to Lake Tahoe. It was after 5:00 a.m. As they drove toward Emerald Bay, defendant said, "I'm obviously going to have to end my life today." He told T.G. that she would have to give something up, like a finger or a hand, so that she would "always remember what [she had done] to [defendant]." When they reached an area called Sugar Pine Camp, defendant parked the car and unsuccessfully tried to kill himself with a hunting bow.

Around daylight, defendant drove out of the campground to a small market. He left T.G. in the car while he brought a pack of disposable razors and a banana and bottle of water for T.G. Defendant told T.G. that he was going to take her home, but changed his mind and drove back to the campground. He said, "I can't go home, I'll go to jail . . . there's a warrant for me, I can't wait for that."

Defendant and T.G. sat in the campground while defendant tried to kill himself with a disposable razor. He also placed a plastic bag over his head. These attempts at suicide also failed. According to T.G., defendant appeared to realize that he did not want to kill himself. He started toward home again and T.G. encouraged him. As they were driving, defendant cried and apologized to T.G. for causing her so much pain over the years.

Defendant Turns Himself In:

Back in Stockton, D.G, one of defendant's and T.G's sons, knocked at Gantt's door between 7:30 and 8:00 a.m. He told Gantt that his mother was gone. Gantt and his adult son hurried to the Gill residence. Finding parts of the house in disarray, signs of forced entry, the family car missing, the outside telephone jack removed, and defendant's car parked around the corner, Gantt and his son called the police.

Detective Robert Molthen questioned the children, D.G. and C.G., about what had happened the night before. D.G. told Molthen that he had heard a commotion or arguing in the middle of the night.

During the interview with D.G., Molten [sic] also learned about a prior incident of abuse. D.G. told the detective that when he was five, he had seen defendant push T.G. onto a couch and throw things at her.

Defendant phoned home while Detective Molthen was at the Gill residence. Molthen told defendant to go to the nearest police station. Defendant allowed Molthen to speak with T.G. Molthen asked T.G. if she was okay and she responded, "I don't think so." Molthen then asked T.G. if she was being held against her will, and she said, "[N]o."

A few minutes later, defendant arrived at the police station in Jackson. Defendant was still talking with Detective Molthen on the cell phone when he told Jackson Police Officer Curt Campbell that the Stockton police were looking for him. Molthen talked with Campbell on defendant's cell phone and told Campbell to detain defendant and T.G. Molthen, his partner Detective Eduardo Rodriguez, and two other officers headed for Jackson.

Meanwhile, Officer Campbell instructed defendant to sit on a bench outside the police station. Campbell noticed fresh and dried blood on defendant's neck. When he asked defendant how the injury occurred, defendant did not respond. Campbell also spoke with T.G., who was sitting in the front passenger seat of the car.

T.G. told Campbell that defendant cut his neck with the blade from a Bic razor. Campbell also noticed that T.G. had a bloody lip.

T.G. told him that defendant had hit her. Campbell retrieved a plastic bag from the car that contained the razor blade and duct tape with brown hair attached to it.

Paramedics arrived and began to treat defendant's and T.G.'s injuries. T.G. stated to the paramedics or Campbell that defendant had raped her.

After the Stockton police officers arrived in Jackson, Campbell gave the plastic bag to Detective Mark Reynolds. The bag contained a 12-foot length of rope in addition to the razor blade and duct tape. Reynolds and another officer transported defendant back to Stockton in their car. They did not question defendant during that trip.

T.G.'s Pretrial Statements:

Detective Molthen interviewed T.G. for approximately 30 minutes in the back seat of his police car before they left Jackson. He and Detective Rodriguez continued to interview her during the drive from Jackson to the emergency room at San Joaquin County General Hospital in Stockton.

At the hospital, Rodriguez went through the Adult/Adolescent

Sexual Assault Examination questionnaire with T.G., writing down her responses. At no time did T.G. indicate that she had consented to the sexual acts she listed on the form. Under the section marked "assault history," T.G. indicated that she had been assaulted that day by defendant. In the section marked "methods employed by assailants," T.G. indicated that defendant had: (1) used a flashlight as a weapon during the sexual assault; (2) threatened to kill her; (3) punched and kicked her; (4) grabbed, held, and pinched her; (5) physically restrained her with tape; and (6) caused her injuries including a fat lip, a bruised left arm, a bruised right knee, a bruised left eye and overall body pain. In the section of the form marked "acts described by patient," T.G. responded that defendant had penetrated her vagina with his penis, his finger and a flashlight. She also stated that defendant had tried to penetrate her anus with the flashlight.. T.G. responded that she had orally copulated defendant and he had ejaculated in her mouth.

Later in the evening, T.G. met for five hours with Susan Sixkiller, a victim advocate with the San Joaquin County District Attorney's Office. T.G. told Sixkiller that defendant had abducted her from the house the night before, thrown her into a car, and raped her.

T.G. never stated or implied that the acts were committed with her consent. She also told Sixkiller that defendant had bound her with duct tape around her wrists, head and hair. T.G. described defendant as having a glazed-over, evil look in his eyes that she had never seen before.

Ten days after the incident, T.G. spoke with Deputy District Attorney Michael Mulvihill about the case. T.G. agreed to a taped interview although she was under no obligation to do so. T.G. told Mulvihill that defendant had started abusing her physically in March 1993, a month after they were married. At no time during the interview did T.G. tell Mulvihill that she had consented to any of the sexual acts that occurred on the morning of February 1, 2004.

Defendant's Pretrial Statements:

After they returned from the hospital, Detectives Molthen and Rodriguez interviewed defendant at the police station. At the start of the interview, defendant told the detectives that they could ask him any question they wanted, but he was "not going to be very forthcoming." He admitted that he "flipped out" when T.G. asked him to leave the house and that he "did her wrong." However, defendant stated multiple times that it was unfair for her to kick him out of the house. Defendant indicated that he had wanted to resolve things with T.G. that night and "couldn't handle it" when she stopped answering the telephone.

Defendant stated that he would not talk about the specifics of what happened because he did not want "to put it together" for the police. Defendant told Molthen and Rodriguez that he "left a really wide trail" that night and admitted that he "was one hundred percent wrong." He continued, "[Y]ou guys got the story and anything I add to it is just going to screw me even more." Later, defendant added, "The whole picture is there, you know it as well as I do."

The detectives continued to question defendant about specifics. When Rodriguez suggested that defendant's silence about the details of what happened might cause people to think that he was trying to get away with his crimes, defendant responded that he would, "be happy to corroborate [T.G.'s] deposition so that the kids [would not] have to participate." Defendant told Molthen and Rodriguez that "[T.G.] [was] an honest person . . . and uh . . . she gives it straight up."

Eventually, defendant described details of the events of the night before. He told the detectives about: (1) parking his car down the street from the house so that T.G. and the neighbors would not know he was there; (2) borrowing a screwdriver from a friend's house so that he could open the telephone box; (3) disconnecting the telephone and calling from a nearby pay phone to make sure the line was dead; (4) returning to the house and trying to break down the front door; (5) removing the screen and entering through a window on the side of the house; (6) screaming at T.G., saying "this is what [you] get;" (7) pushing T.G. around and hitting her in the bedroom; (8) dragging T.G. by her arm or hair into the garage; (9) tying her up; (10) forcing her to have sex and sticking the flashlight into her vagina; (11) threatening to cut off her body parts; (12) putting a gag in her mouth; (13) using the computer while T.G. lay face down on the carpet; (14) putting T.G. face down in the back seat of the car, hog-tying her, and driving away to get out of the county; and (15) having T.G. orally copulate him. At the end of the interview, defendant stated, "I've been honest with you, straight up." He was comfortable with the fact that he had corroborated T.G.'s description of what had happened.

Defendant's Testimony:

At trial defendant testified that he never forced T.G. to have sex against her will. He explained that he and T.G. "Had an agreement that [they] would try anything." According to defendant, they trusted each other not to hurt the other and if T.G. ever said "uhuh" or "stop," defendant would immediately stop what he was doing. Defendant testified that the sex acts that occurred on February 1, 2004, were "the same sexual things" that they had "always done." He stated that he and T.G. often inserted objects into each other, took joy rides, had sex in different places, ripped clothes off each other, and had sex out in the warm sun. Defendant testified that they engaged in acts of bondage in the garage and the rope found in the Volvo was purchased for that purpose.

Defendant acknowledged that he was angry and yelled at T.G. when he found her trying to make a phone call from their bedroom early on the morning of February 1, 2004. He cried after striking her and they exchanged "forgiveness." Defendant testified that while he and T.G. were talking, she started touching him in a sexual manner. According to defendant, they went to the garage to engage in a typical sexual game. Defendant stated that T.G. did a striptease for him, and consented to being gagged and tied up. He maintained that she consented to the subsequent sexual acts and to leaving the house with him for a "joy ride."

When questioned about his statements to police, defendant testified that he "just told [the detectives] what they wanted to hear" because he was frustrated, tired, hungry, and "just wanted it to be over." He denied coercing T.G. into testifying in a certain way.

T.G.'s Testimony:

T.G. testified for the defense, stating that defendant did not force her to go anywhere with him, did not force her to have sex against her will, and did not threaten her in anyway on February 1, 2004.

(Slip Op. at p. 3-15.)

III. PROCEDURAL HISTORY

After a jury trial, Petitioner was convicted of the charges outlined in supra Part I. Petitioner appealed to the California Court of Appeal, Third Appellate District. Petitioner raised several claims to the California Court of Appeal, including Claim I-III that he raises in his amended federal habeas petition. The California Court of Appeal affirmed the judgment on January 22, 2008 in a written opinion. Petitioner filed a petition for review to the California Supreme Court which included Claims I-III that he raises in his amended federal habeas petition.

The California Supreme Court summarily denied the petition for review on April 30, 2008.

Subsequently, Petitioner filed a state habeas petition in the Superior Court of California, County of San Joaquin in which he raised Claim IV that he raises in his amended federal habeas petition. The Superior Court denied the state habeas petition on April 27, 2009 in a written decision. Petitioner's state habeas petitions to the California Court of Appeal and the California Supreme Court which also raised Claim IV were each summarily denied.

Petitioner filed a federal habeas petition on March 18, 2009. He subsequently filed an amended federal habeas petition on December 28, 2009. Respondent answered the amended federal habeas petition on June 9, 2010. On July 2, 2010, Petitioner filed his traverse.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).

Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. at 71-72 (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005).

When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

V. ANALYSIS OF PETITIONER'S CLAIMS

A. Claim I

In Claim I, Petitioner argues that the trial court violated his due process and fair trial rights when it denied a defense motion to disqualify the district attorney from prosecuting this case. Petitioner argues that the district attorney's office had a personal bias towards him. The last reasoned decision on this Claim was from the California Court of Appeal on direct appeal which stated the following:

Before trial, defendant moved to disqualify the entire San Joaquin County District Attorney's Office from prosecuting his case and to appoint the Attorney General to assume prosecutorial duties in its stead. [FN 3] Defendant argued that two deputy district attorneys

-- Michael Mulvihill and Kristine Reed -- "ha[d] taken a personal interest in the case and ha[d] made a concerted effort to influence the testimony of the alleged victim." Defendant maintained that after T.G. informed them that she consented to the acts charged, Mulvihill and Reed "responded . . . by threatening her, demeaning defense counsel and making other inappropriate statements." Citing this conduct, defendant asserted that a conflict of interest existed which made it unlikely "that [he would] receive a fair trial." The court denied the motion. On appeal, defendant contends that "Deputy District Attorneys Mulvihill and Reed conducted a pretrial interview of [T.G] in which she was misled as to what was in her best interests and that of her family, resulting in a conflict of interest that makes it unlikely that [defendant] received a fair trial." There is no merit in defendant's contention. [FN 3] Defendant acknowledged that although he sought recusal of the entire San Joaquin County District Attorney's Office in his motion in the trial court, his argument on appeal "focuses on the actions of the two deputies and compels the conclusion that they should have been recused from the case, requiring reversal.

A. T.G's Pretrial Interview At The District Attorney's Office:

Defendant's claim of conflict arises from Mulvihill's and Reed's meeting with T.G. and her father at the district attorney's offices on February 10, 2004. [FN 4] Mulvihill testified that he spoke with T.G. informally before he and Reed conducted the recorded interview that the prosecution played for the jury at trial. Mulvihill stated at the start of the recorded interview, "[W]e talked for about an hour with you and your dad downstairs, just about, not about the facts or anything right? We were just talking about general . . . . [¶] . . . [¶] [p]rocedures and what's going on in the case right now. It's my understanding that you're up here today of your own free will and you don't . . . you [sic] freely volunteering to talk to . . . us. We're not forcing you to, is that right?" T.G. responded, "That's correct." [FN 4] Defendant also separately argues, after the fact, that the manner in which District Attorney Reed questioned him at trial "revealed a deep personal bias against [defendant] that reinforced the fact that the trial court should have disqualified both her and Mulvihill prior to trial." We address this issue post.

Defendant filed T.G's handwritten notes about the informal meeting as an exhibit in support of his motion to disqualify, T.G.'s notes read:

"*I was advised not to speak with the public defender "*I was told public defender may show up at my door calling himself PD -- I need to be careful "*I was told the public defender will 'twist my words' in court "*I was told I had no rights as [defendant's] wife to do anything regarding this case "*I was told that I had better hope that [defendant] takes the D.A.'s first offer because they would just keep adding time if he did not "*I stated that I do not want our boys [D.G. and C.G.] to be put on the [witness] stand -- Mr. Mulvihill told me that if they had to, they would double [defendant's] time "*I stated I did not want the [criminal protective order"

Mulvihill also prepared a memorandum of his informal meeting with T.G. and her father on February 10, 2004, which differed from T.G.'s account. Mulvihill indicated that he "explained the criminal procedure process (arraignment, preliminary hearing, arraignment on the information, pre-trial conference, readiness conference and trial)." He also "explained [their] offers and how they are arrived at and how they go up usually after each appearance." After T.G. stated she wanted to help defendant, Mulvihill spoke at length emphasizing that it was the District Attorney's Office, and not her, that filed charges against defendant, but they wanted to hear whatever she had to say.

Mulvihill testified that he told T.G. that "she [had] the right to speak with and not speak with whoever [sic] she [wanted]," and that his office was "only interested in the truth." He told her that she could talk to the defense attorney or his investigator but did not have to talk with them. Mulvihill "informed her they have different interests and in [his] experience often twist the statements of witnesses to suit their needs." However, Mulvihill assured T.G. that he would not hold it against her if she chose to speak with the defense team.

When T.G. asked that the criminal protective order be lifted, Mulvihill explained his opposition. He also informed T.G. that she could attend at the next court appearance and explain her position to the judge.

Section 1424 governs motions to disqualify the prosecution, and states in pertinent part that, "[t]he motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (§ 1424, subd. (a)(1).) The statute replaces the earlier rule announced in People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266, 267, 269, which authorized recusal based on the mere appearance of conflict. (People v. Breaux (1991) 1 Cal.4th 281, 294; People v. Lopez (1984) 155 Cal.App.3d 813, 824.) Section 1424 differs from the rule in Greer "in that it does not specify whether the disqualifying conflict must be 'actual' or 'apparent' but requires that it be 'of such gravity as to render it unlikely that defendant will receive a fair trial unless recusal is ordered.'" Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 199 (Millsap), quoting People v. Connor (1983) 34 Cal.3d 141, 147 (Connor).) In other words, section 1424 "does not allow disqualification because participation of the prosecutor would be unseemly, appear improper, or even reduce public confidence in the criminal justice system. An actual likelihood of prejudice to defendant must be shown. [Citation.]" (Millsap, supra, at p. 200.) To prevail in a motion to disqualify the prosecution, defendant must satisfy a two-part test: (1) whether a conflict of interest exists; and (2) whether the conflict is "so grave as to render it unlikely that defendant will receive fair treatment. [Citation.]" (People v. Eubanks (1996) 14 Cal.4th 580, 594 (Eubanks).) The burden of persuasion is on the party seeking recusal. (See People v. Hamilton (1988) 46 Cal.3d 123, 140.)

"Our review involves both the substantial evidence test and examination for abuse of discretion. Factual issues are resolved under the substantial evidence test; whether there is substantial evidence to support factual determinations reached by the trial court. [Citations.] Once the pertinent factual issues are settled, the question whether the trial court's ruling should be upheld is determined under the deferential abuse of discretion test. [Citations.]" (Millsap, supra, 70 Cal.App.4th at p. 200.)

B. Analysis

Here, the trial court made no findings on questions of evidentiary fact -- that is, whether there was a conflict of interest and whether defendant was unlikely to receive a fair trial. (Eubanks, supra, 14 Cal.4th at p. 594.) The accounts offered by T.G. and Mulvihill differed in the details of what was said in their informal meeting. We will not reweigh the court's implicit determination that defendant failed to sustain his burden of persuasion on the two-part test. Mulvihill's description of the informal meeting with T.G. supports a conclusion that he was simply informing T.G. about the criminal process and did not demonstrate a conflict of interest or bias. ...


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