IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
December 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GUSTAVO GONZALES TAFOLLA, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM027444)
The opinion of the court was delivered by: Raye , P. J.
P. v. Tafolia
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 2007 the body of Myndee Rosado was found in an irrigation canal. An information charged defendant Gustavo Gonzales Tafolla with murder. (Pen. Code, § 187, subd. (a).) A jury convicted defendant, and the court sentenced him to 25 years to life in state prison.
We reversed defendant's conviction and remanded the matter for the trial court to conduct a hearing on defendant's motion for appointment of new counsel. The trial court conducted a Marsden hearing, denied the motion, and reinstated the judgment.*fn1 Defendant appeals, arguing the trial court erred in denying the motion. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from our nonpublished opinion in People v. Tafolla (Mar. 8, 2010, C059642).
Rosado's former boyfriend, Michael Tancreto, loaned her his car the month of the murder. She failed to return the car and he never saw her again. The morning after Rosado disappeared, the car was found burning in a field.
The evening Rosado disappeared, she and defendant met at a friend's house. The pair discussed tattoos, and defendant showed her a booklet about tattoos from his backpack. They left the house together in Tancreto's car, and no one reported seeing Rosado alive after that time.
The morning after Rosado disappeared, a ranch worker discovered evidence of a crime at the ranch that employed him. He found blood on a piece of equipment, a backpack containing a tattoo magazine, a bathing suit, women's underwear, and a pink blanket. After the worker reported his find to his supervisor, he returned to find the backpack gone and the other items moved. The worker later identified a backpack found in defendant's bedroom as the backpack he found at the ranch. The blood at the ranch was Rosado's.
A few days later a ditch tender found Rosado's unclothed body in a canal about 28 miles from the ranch. An autopsy revealed 13 stab wounds. The number and placement of the wounds indicated it took between five and fifteen or more minutes to inflict the wounds. Rosado had methamphetamine, cocaine, and marijuana in her system when she died.
A search of defendant's room revealed the backpack, which contained tattoo magazines. Officers also found two knives, one of which was broken.
When questioned by the police, defendant acknowledged being with Rosado the night she vanished. He, Rosado, and another man drove to the ranch. The other man left the car while Rosado and defendant engaged in a sex act. Rosado and the other man then dropped defendant off at his home.
Over the course of questioning, defendant changed his story. The other man disappeared, and defendant told officers that he and Rosado went alone to the ranch, engaged in sex acts, and then Rosado drove him home. He ultimately admitted returning to the ranch to retrieve the backpack. Defendant denied harming Rosado.
At the beginning of the interview, defendant said that he remembered everything from the night in question, but later, when he was confronted with the inconsistencies in his account, he claimed he could not remember because he was "under the influence" or "drugged out."
An information charged defendant with murder. (Pen. Code, § 187, subd. (a).) The prosecution argued to the jury that the murder was in the first degree because it was premeditated, deliberate, and committed by torture. The jury found defendant guilty of first degree murder. The trial court sentenced defendant to 25 years to life in state prison.
Defendant appealed. We remanded the case to the trial court for a Marsden hearing. This second appeal followed.
Defendant now challenges the trial court's denial of his Marsden motion. According to defendant, the trial court "failed to perform an actual weighing of the evidence presented, instead of relying on a superficial evaluation of appellant's proffered evidence." Defendant contends the record demonstrates that trial counsel made no effort to investigate the validity of defendant's information pertaining to third party involvement.
In response to our order, the trial court conducted a Marsden hearing. Both defendant and his trial counsel testified.
Defendant noted several instances of trial counsel's ineffectiveness. Defendant wanted to testify, but counsel advised him against it because it "wasn't appropriate" for his case.
Defendant also noted there were pictures in his file that were detrimental to his case. However, trial counsel failed to present any positive images of defendant with his family.
In addition, defendant argued he was entitled to a private investigator to probe certain matters. Defendant referred to a letter from an inmate, the victim's husband, who claimed a drug dealer had threatened to hurt the victim because the dealer believed she had tried to steal drugs and money from him.
Trial Counsel's Testimony
Trial counsel related his experience as a criminal defense attorney. During his defense of defendant, counsel had the assistance of an investigator.
Through a Spanish-speaking interpreter, counsel and defendant discussed several times the prospect of defendant's testifying. Defendant made the decision not to testify.
In addition, defendant's status as a Mexican national and the possibility of invocation of the death penalty resulted in the participation of the Mexican consulate. The consulate provided funds and legal consultation from attorneys, who visited defendant in jail. Trial counsel believed that he, defendant, and the other attorneys thoroughly discussed the case during the trial.
As for the dearth of family photos, trial counsel believed there were no grounds for admissibility based on relevance. Counsel considered introducing such photos, but "could not find a legal basis on which to have it presented to the jury."
Defendant gave counsel a handwritten letter dated November 18, 2007, purportedly written by Cliff Clayton Rhoads. The letter stated Rhoads was in a cell adjacent to defendant and discovered defendant was charged with Rosado's murder. Rhoads stated he met Rosado a year earlier at a drug house after he was released from prison. Rhoads said Rosado was "up for anything" and offered to perform a sex act with him for drugs. He knew Rosado and her family because they were from the same town and were around the same age. Rhoads also said he was willing to testify. Trial counsel testified he did not believe the letter could produce any leads for a private investigator to follow up on.
A second handwritten letter was introduced at the hearing. Defendant dictated the letter to another inmate, who wrote it for him. It contained a statement by Rick Soleno, whom defendant had met in jail. Soleno said he had been Rosado's boyfriend three or four months prior to her death. He broke up with Rosado because she had been robbing people of drugs and money to fund her drug habit. After the couple split up, a "Mexican Dude" accused Soleno of being with Rosado when she robbed him. The "Mexican Dude" was angry and looking for Rosado to get his "dope" or money back. According to Soleno, the "Mexican Dude" "Had a Very Bad attitude about the whole thing."
Trial counsel testified he did not believe there was sufficient information in the second letter to enable his investigator to follow up. Counsel stated: "Basically there was not enough in terms of information in that letter that I could give to my investigator to follow-up [sic], as far as identifying someone different, that I could, with credibility, argue to a jury that was involved as far as the homicide in which Ms. Rosado was the victim."
Defendant testified he told trial counsel that Soleno had been taken to Tracy and asked that someone be sent to investigate. Counsel told him it was not necessary.
The consulate attorneys simply told him to take 15 years to life as a deal. Defendant told the consulate attorneys he would not take the deal because he had done nothing.
Defendant did not testify because counsel visited him in jail and told him it was not in his best interest.
Trial Court's Ruling
The court denied the Marsden motion. The court determined defendant made the final decision not to testify. The family photos defendant sought to have admitted were irrelevant. Such photos would garner juror sympathy, which would be improper. In addition, counsel employed an investigator, negating defendant's claim about the lack of an investigator.
As for the letters offered by defendant, the trial court found they contained hearsay, speculation, and information about Rosado's character that would have been inadmissible at trial. According to the court, any other attorney would have proceeded as trial counsel did in representing defendant. Trial counsel acted "within the realm of competency" and had not performed ineffectively. The court also denied defendant's motion to substitute counsel.
Defendant filed a timely notice of appeal.
Defendant contends the court abused its discretion in denying his Marsden motion. The court, defendant argues, failed to actually weigh the evidence presented but instead performed a superficial evaluation of that evidence.
In reviewing a Marsden motion, the court must allow the defendant to explain the basis for his request for new counsel and to relate specific instances of inadequate performance. The court must grant the motion if the record clearly shows that the appointed counsel is not providing adequate representation or that the relationship between the defendant and counsel rendered ineffective representation likely. (People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).)
When a defendant brings a Marsden motion after trial, the court must conduct a hearing to explore the defendant's claims. If the defendant's claims of inadequacy relate to matters that occurred outside the courtroom and the defendant makes a "colorable claim" of inadequacy of counsel, the court has the discretion to appoint new counsel to assist the defendant in moving for a new trial. (People v. Bolin (1998) 18 Cal.4th 297, 346.)
On appeal, we review the denial of a Marsden motion for an abuse of discretion. Such abuse occurs only if the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. (Taylor, supra, 48 Cal.4th at p. 599.)
Here, we find no such abuse of discretion. The trial court held the required hearing, allowed defendant to present his case, heard defense counsel's explanations, and reviewed each of defendant's claims.
As the court noted, the requested photographs would not have been admissible. The court heard defendant's explanation of why he declined to testify and found defendant made the decision not to do so. Defendant's claim that counsel did not use an investigator was belied by defense counsel's testimony.
Defendant focuses on the two letters he claims should have led to further investigation. According to defendant, the trial court simply reiterated our statements on the subject in our opinion ordering remand.
In our opinion we stated: "Defendant stated that he gave possibly exculpatory evidence to counsel, but counsel did not follow up on it. That claim remains unresolved and could possibly support appointment of new counsel to pursue a motion for new trial. [¶] The allegation, alone, that there was someone in jail who had heard that someone else knew about who killed Rosado was insufficient to support an order granting a new trial. That evidence is inherently incredible, if not inadmissible, considering the levels of hearsay. However, if defendant can show that trial counsel failed to follow up on credible information, the trial court may have cause to grant the Marsden motion."
We do not find the trial court simply parroted our observations. Instead, the court reviewed the correspondence and found it too vague and speculative to require further investigation. Our review of the letters' statements supports the court's conclusion.
In the first letter, Rhoads simply impugns Rosado's character, describing her as willing to trade sex for drugs. Such statements do not implicate anyone else in her death.
In the second letter, Soleno stated a "Mexican Dude" was angry with Rosado for robbing him and had "a Very Bad attitude." Again, nothing in Soleno's statement identifies or alleges a third party was responsible for Rosado's death.
At the end of trial, defendant, in his request for a new trial, stated he had information from a jailhouse informant about who had killed Rosado. We found this assertion "inherently incredible." Neither letter supplied by defendant provided information from which an investigator could have located a potential suspect. Defendant failed to present a "colorable claim" of inadequacy of counsel based on facts outside of the record. The court did not err in denying defendant's Marsden motion.
The judgment is affirmed.
We concur: NICHOLSON , J. MAURO , J.