IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GAUDENCIO MOZO, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F12135)
The opinion of the court was delivered by: Robie ,j.
P. v. Mozo
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Gaudencio Mozo guilty of sexual intercourse or sodomy with P. R., a child 10 years of age or younger; lewd and lascivious acts with A. B., a child under the age of 14 years; two counts of lewd and lascivious acts with P. R.; and two counts of lewd and lascivious acts with L. M. In connection with each count, the jury found a multiple-victim enhancement to be true.
Sentenced to state prison for an aggregate term of 85 years to life, defendant appeals. He contends the trial court abused its discretion in applying the Marsden*fn1 standard to, and refusing to rule on, his motion to discharge retained counsel. In the alternative, he claims that he was denied legal representation at a critical stage of the proceedings. We reject these contentions. Defendant also contends, and the People concede, that the true finding for the multiple-victim allegation attached to the count alleging sexual intercourse or sodomy must be stricken as contrary to the plain language of Penal Code*fn2 section 667.61. We accept the concession and vacate the true finding.
Defendant sodomized and, using his fingers, touched the vaginal area of six-year-old P. R. Defendant put his hand inside A. B.'s underwear when she was three or four years old and inappropriately touched six-year-old L. M. on two occasions. When interviewed by the police, defendant admitted sodomizing P. R. but claimed she provoked him and initiated the conduct. Defendant also admitted inappropriately touching L. M. on two occasions.
Dismissal Of Defendant's Attorney
Defendant contends his convictions must be reversed because the trial court abused its discretion in refusing to rule on his motion to discharge his retained attorney. Alternatively, he claims his convictions must be reversed because he was unrepresented during the hearing on his request to discharge retained counsel. We conclude that although the trial court heard defendant's concerns in camera, as with a Marsden motion, the trial court recognized that defendant's attorney was retained and that Marsden did not apply and informed defendant he could discharge his counsel. The trial court deferred ruling on defendant's request to do so and defendant thereafter chose to proceed to trial with retained counsel. We conclude defendant abandoned his request to discharge counsel and have counsel appointed for him. We also conclude that retained counsel did not violate his duty of loyalty or abdicate his obligation to provide effective assistance at the in camera hearing.
The First Request
On January 11, 2010, the second day of trial, defendant's retained counsel, Lawrence Cobb, informed the court that defendant had expressed a desire for a "Marsden motion." Cobb stated that he had explained to defendant that Marsden "applies to appointed counsel, but it is interchangeable with the fact that he wants to have a new lawyer." Cobb told the court that he preferred an in camera "preliminary discussion." The prosecutor had no objection to leaving the courtroom even though the court explained, "Obviously we don't have a Marsden motion, and the defendant is in a position to fire his counsel at any time and hire his own counsel."
After the prosecutor left the courtroom, defendant stated that he wanted to "change [his] attorney." The following exchange then occurred:
"THE COURT: Mr. Cobb, your status is that you are retained; is that correct?
"MR. COBB: That's correct.
"THE COURT: Mr. Mozo, you have the right to have counsel of your choice. I know Mr. Cobb has been involved in your case now for, what, at least a year, Mr. Cobb?
"MR. COBB: Yes. Year and a half perhaps. It's been a considerable period of time.
"THE COURT: And I've had actually the opportunity to speak to Mr. Cobb. I have reviewed his pleadings, his paperwork that relate[s] to this case. And it appears that Mr. Cobb is doing a good job.
"Is there something that you're upset about with respect to Mr. Cobb that I may be able to address? I mean, if in fact there is some -- I know that you may not be happy with the status of the plea negotiations in the case, but you should also understand that Mr. Cobb doesn't have the ability to control that.
"That's something controlled primarily by the District Attorney's Office. But if you wanted to address me, I'm certainly willing to hear what it is that concerns you about Mr. Cobb.
"THE DEFENDANT: Yes. What I would want is to change to see if you can give me an attorney because I have felt bad because I have always thought that when someone is working with another person that you have to have good communications, and we have not had that, good communication.
"To be begin with I never received any paper like the papers like they give to people like what they call the discovery papers. Ever since I've been here, I haven't received not one piece of paper.
"THE COURT: Mr. Mozo, you were initially represented by the Public Defender's Office, were you not?
"THE DEFENDANT: Yes.
"THE COURT: Didn't the Public Defender give you the discovery in the case?
"THE DEFENDANT: At no time. I've been here for two years and they have never given me any paper at all."
The public defender represented defendant at the preliminary hearing which was held on May 23, 2008. The court noted that that office's practice was to provide discovery to a defendant prior to the preliminary hearing. The court asked Cobb whether he had ever provided defendant with discovery in the case. Cobb never provided defendant with copies of the reports but stated that he had reviewed the reports with defendant and discussed trial tactics including those related to defendant's statements to the police. Defendant confirmed for the court that Cobb had kept him apprised of plea negotiations.
The following discourse then ensued:
"THE COURT: Mr. Cobb has come down to the jail to see you, correct?
"THE DEFENDANT: Well, I didn't write them down but from the time that I have been here in jail, it would have been let's say three, four times, something like that. And just like anyone, I have wanted to speak to my attorney about what's going on.
"THE COURT: When was the last time you saw Mr. Cobb?
"THE DEFENDANT: I saw him this Sunday.
"THE COURT: Did you have a chance to speak with Mr. Cobb?
"THE DEFENDANT: Yes. I talked to him with the interpreter that he say, and little did I know attorney and his client, they should be like one in the same. But the gentleman he arrived, and he was angry.
"And I know I have this problem that I have here, and instead of a person trying to help me and support me he is angry.
"It is not something easy that they are telling me. They want to damage me and they want to destroy me and my family.
"THE COURT: Who wants to damage you and who wants to destroy your family?
"THE DEFENDANT: I'm saying that because, listen, I tried in the best way possible. Nobody came to arrest me at my house or in the street. I went specifically. If I would have done something terrible, I had a month opportunity had I done something bad.
"THE COURT: All right. Mr. Mozo, I'm a little confused because I'm not -- I understand that you had contact with law enforcement. I had the general idea of what took place in terms of your interaction with law enforcement leading up to the arrest.
"But what I'm trying to focus on is your relationship between you and Mr. Cobb. And that's, I mean, you're going over an area that really is not relevant to what I'm trying to determine, and that is whether or not there was adequate representation.
"So what is it about -- you said there was this breakdown in communication and that Mr. Cobb was upset the other day. You should also recognize that during the course of a case of this nature, and I -- I have in the past, I've been a defense attorney like Mr. Cobb so I know that these cases can be stressful for everyone involved, including both you as well as Mr. Cobb.
"And there will be moments or times during that representation when tempers oftentimes can flare. But that doesn't mean that there has been a breakdown in the attorney-client relationship."
Cobb interjected and offered his perspective. Cobb had also spoken with defendant on the previous Thursday, January 7:
"With the interpreter, we were down there for about an hour. [Defendant] indicated that he wished for me to speak with his wife Olga and that his wife would speak to me. But he wanted me to talk to her first.
"I have a young woman who works for me who translates Spanish into English, vice versa. And Friday after I got out of Court we spoke with his wife by telephone, and I conveyed to her an explanation and what the state of the plea negotiations were.
"She was upset. The agreement was that she would go see Mr. Mozo and indicate to me -- indicate what they had agreed to.
"Saturday night at 10:00 o'clock I was waiting for actually a text message from this young woman who works for me. I never did hear from his wife. She made frequent calls to the number and spoke to his daughter . . . who made various statements about where his wife was.
"I couldn't take a chance because this was the drop-dead day for acceptance or rejection of the plea agreement. So at 9:00 o'clock in the morning yesterday [w]e left to go to the jail, the interpreter and I, and spoke with him.
"My bedside manner as it were was not the greatest. I may have appeared irritated, and I probably was because I don't like to have somebody telling me when things are of such urgency and they say they are going to call and they never call. She was up late. I was up late. We weren't at the same location waiting for this very important telephone call.
"I'm sure that I expressed my irritation to him and was somewhat short with him. I can't read his mind but I would hope that he would not ever believe that just because I didn't think that his rejection of the plea offer was in his best interest that that would effect my representation at trial. It never would even if I thought it was a poor choice.
"And that's -- that's what I would add to it."
The court then stated:
"Mr. Mozo, you understand this process obviously is very difficult for everyone. It is very stressful for you, and it is also stressful for Mr. Cobb as well.
"I mean, the communication obviously is something that is a two-way street. It sounds like there was also some failure or inability on the part of the people [who] were helping you to adequately communicate with Mr. Cobb as well, and that obviously created a very stressful point for both of you.
"But I haven't heard anything at this stage to cause me to believe that Mr. Cobb is not doing a good job representing you here. He's filed a number of motions that has raised all of the issues that I think that if I was in the same position as Mr. Cobb I would have raised as well, including the motion that we are about to hear this morning.
"The only thing that I would ask at this point is that you think about what it is that you want this Court to do. And sometime later today have Mr. Cobb report back to me how you want to proceed. I would indicate to you that this trial has been delayed a number of times. It's been pending for almost two years, if not over two years now.
"And so I'm reluctant to do anything that's going to jeopardize the trial date. Actually, we are in the middle of a trial, and I can only get a sense that this is dilatory on your part. If there has been a break down of communication issue, that would have existed a week ago. If anything, there appears to have been more contact within the last several days between you and Mr. Cobb than there has been on other periods of time.
"But I do get the sense that Mr. Cobb is involved in your case. He's knowledgeable about the facts and circumstances of your case as well as the law. So at this point I'm not going to take any additional action because I want you and Mr. Cobb to further discuss what the issues are between the two of you.
"And if you want me to consider something, I'll do so at your request whether or not it is to -- I would indicate to you that there is probably no way that another attorney is going to be able to come in and start this trial today.
"And so I have to weigh all those facts, but there is absolutely nothing from what you've indicated to me to cause me to believe that Mr. Cobb is not adequately representing you other than the fact that you may be dissatisfied with the status of the plea negotiations, that everything that I have seen thus far including the communications between Mr. Cobb and the Court verbally indicate that he is aware of the facts and circumstances of the case.
"Has identified the issues that he needs to raise not only at trial but pretrial to put your case in its best light for the purposes of proceeding to trial. And there is nothing to cause me to believe that he would not adequately represent you in this.
"So at this point, Mr. Mozo, I'm not going [to] take any action. Sometime later today if you want me to consider specific requests including appointing counsel for you or something else then I would entertain that request.
"I'm not indicating I would grant it, but I would entertain the request because I do believe that Mr. Cobb is doing a good job. And I'm not in a position at this point to grant any continuance for you to investigate some other aspects of your case. But you are entitled to be represented by the attorney of your choosing.
"You've hired Mr. Cobb. If you wanted to retain another attorney and bring them in that's something that I'm not even involved in. You could bring that attorney in.
"In the event that you want me to appoint counsel for you in lieu of Mr. Cobb, then that's something that I would consider.
"But I want to hear from you later today if that's something you desire for me to consider that. Then I'll determine whether or not that's something I'm prepared to do.
"Given the fact that Mr. Cobb is present, we are in the middle of the trial, and all sides are prepared to proceed."
When the prosecutor returned to the courtroom, the court explained: "[A]t this point I'm not taking any action. I think we should proceed as previously planned. [¶] And in the event that Mr. Mozo or Mr. Cobb wants me to entertain any specific motion as it relates to a continuance or counsel, I will give them the opportunity to do that sometime today." The court arraigned defendant on the amended information and then conducted an evidentiary hearing on defendant's motion to exclude his statements. The court denied the motions and recessed for lunch.
The court commenced the afternoon session by asking whether defendant intended to request appointment of counsel to replace Cobb. Cobb informed the court that he had spoken with defendant prior to the lunch hour and asked defendant whether there was anything else he wished to tell the court. Defendant told Cobb that he did not have anything to add. Defendant also asked Cobb questions involving a "matter of confidence," and Cobb answered those questions. Cobb informed the court, "I can't speak for [defendant] but I think that he's ready to go forward with the trial."
The court queried: "Mr. Mozo, is that correct? At this point whatever concerns you had with respect to Mr[.] Cobb that we discussed earlier in the in camera hearing have been resolved, and you're prepared to proceed with Mr. Cobb as your attorney of record?" Defendant answered, "Yes."
Defendant had appointed counsel for the preliminary hearing. He retained counsel thereafter. Defendant's colloquy with the trial court and his counsel occurred on the second day of trial and after the prosecution's offer of 40 years or 25 years to life expired. Defendant was upset because Cobb was angry when he visited defendant in the jail. Cobb admitted he was upset because of the lack of communication with defendant's spouse who defendant wanted Cobb to speak to about the prosecution's offer. The court recognized that Cobb was retained and informed defendant that he could discharge his attorney. On this record, the trial court could reasonably conclude that defendant's statement that he was prepared to proceed to trial with retained counsel constituted an abandonment or waiver of his previous request to discharge him.
The Second Request
Defendant did not bring up his request again until after the prosecution presented its case and during a discussion outside the jury's presence concerning admission of the prosecution's exhibits, which defendant asked to "waive the one who is representing me," that he was not being "well represented legally," and asked "if somebody else could represent" him. Again, although noting that Marsden did not apply, the court conducted another in camera hearing before reopening the courtroom for the prosecutor's comment and denying the request to discharge counsel and for appointment of counsel as untimely, noting that the defense was prepared to rest and it was about to instruct and have argument.
There Was No Abuse Of Discretion
Defendant argues there was an abuse of discretion when the trial court applied the Marsden standard to a motion to discharge retained counsel. The trial court did not do so.
As for the first request, the court advised defendant at the end of the in camera discussion that it was not taking any action on defendant's request to discharge retained counsel and have counsel appointed but would consider defendant's request later that day.
We reject defendant's claim that the trial court was required to rule and abused its discretion by delaying its ruling to later that day. Defendant cites no authority requiring an immediate ruling.
Later that day, Cobb informed the court that he and defendant had spoken and that defendant seemed ready to proceed with trial. The court asked defendant, "Mr. Mozo, is that correct? At this point whatever concerns you had with respect to Mr. Cobb that we discussed earlier in the in camera hearing have been resolved, and you're prepared to proceed with Mr[.] Cobb as your attorney of record?" Defendant answered, "Yes."
"[A] defendant can abandon his request to substitute another counsel." (People v. Vera (2004) 122 Cal.App.4th 970, 982.) We conclude that defendant can likewise abandon his request to discharge retained counsel and to have counsel appointed and did so here by expressly deciding to proceed to trial with retained counsel.
Defendant cites King v. Superior Court (2003) 107 Cal.App.4th 929 in support of his other argument that a hearing on his request to discharge retained counsel is a critical stage and that Cobb abandoned his obligation to defendant, did nothing to advocate for him, and instead, argued against his interests at the in camera hearing. We reject this claim as well.
In King, the trial court determined that the defendant had forfeited his right to counsel after four appointed counsel had withdrawn based on the defendant's assaults and threats towards them. In reversing, King found that the defendant's due process rights and right to counsel were violated in that appointed counsel, instead of arguing in defendant's favor at the forfeiture hearing, argued in favor of forfeiture and presented evidence against the defendant. (King v. Superior Court, supra, 107 Cal.App.4th at pp. 934-950.) King is distinguishable. Here, Cobb simply put into context defendant's dissatisfaction and did not argue against defendant.
Defendant claims that "Cobb's actions stand in stark contrast to the advocacy of the trial counsel in People v. Munoz [(2006) 138 Cal.App.4th 860]." In Munoz, when the trial court expressed doubt that defendant had shown inadequate representation to discharge counsel, the defendant's attorney stated, "'I'm retained counsel in this case and it's always been my understanding that a person can terminate the services of retained counsel at any time on any quantum of proof that he wants to. . . . I don't think anybody should be required to have me as their attorney if they don't want me." (Id. at p. 865.)
We reject defendant's claim that Cobb advocated against defendant's interests. "The right of a non-indigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state [citations] . . . ." (People v. Ortiz (1990) 51 Cal.3d 975, 983.)
"A non-indigent defendant's right to discharge his retained counsel, however, is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in 'significant prejudice' to the defendant [citation], or if it is not timely, i.e., if it will result in 'disruption of the orderly processes of justice' [citations]." (People v. Ortiz, supra, 51 Cal.3d at p. 983.)
The defendant's second request to discharge his counsel after the prosecution presented its case was denied as untimely. Defendant does not challenge that ruling.
Multiple Victim Enhancement
Defendant contends and the People concede that the true finding for the multiple-victim allegation attached to count one must be stricken as contrary to the plain language of section 667.61. We agree. Section 667.61 enumerates the offenses to which 15 years to life applies under certain circumstances, here, multiple victims. Count one, sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)) is not among the enumerated offenses in section 667.61 and with reason. Section 288.7, subdivision (a) provides its own sentencing scheme -- 25 years to life. It was error to allege an enhancement under section 667.61 in connection with count one. We will strike the jury's true finding on the allegation. The court sentenced defendant to 25 years to life on count one in accordance with section 288.7, subdivision (a). Defendant's aggregate sentence of 85 years to life is not affected.
The judgment is modified, vacating the jury's true finding and dismissing the allegation under section 667.61 in connection with count one. As modified, the judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.