(Super. Ct. No. 07F12135)
The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 COURT: Didn't the Public Defender give you the ...