California Court of Appeals, Fourth District, Third Division
from a judgment of the Superior Court of Orange County No.
13NF3826, James E. Rogan and Scott A. Steiner, Judges.
Barbara A. Smith, under appointment by the Court of Appeal,
for Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, A. Natasha Cortina and Christine Levingston
Bergman, Deputy Attorneys General, for Plaintiff and
BEDSWORTH, ACTING P. J.
trial judge in this case exercised uncommon common sense in a
ruling that guaranteed defendant would not have to face the
beggar's crossroad of having to choose between revealing
damaging information to the judge about to hear his bench
trial or giving up his chance at a new attorney. This
sagacity is assigned to us as error.
Michael James Jackson was convicted of multiple counts of
sexual misconduct arising from his work as a massage
therapist. His sole claim on appeal is that the trial judge
erred in transferring his motion for a new attorney -
commonly known as a Marsden motion (see People
v. Marsden (1970) 2 Cal.3d 118 (Marsden)) - to
another judge for adjudication. Although Marsden
motions generally should be heard by the judge who is
assigned to the defendant's case, the transfer here was
justified because at the time appellant made his motion, he
was facing a bench trial in front of the very judge to whom
he would have addressed his complaints. We affirm the
AND PROCEDURAL BACKGROUND
was charged with committing sex crimes against four different
women to whom he provided massage services. He was also
charged with one count of possessing child pornography. The
trial judge, James E. Rogan, granted appellant's motion
to sever the pornography charge, and appellant waived his
right to a jury trial on that charge. Then, while that charge
was awaiting resolution, Judge Rogan conducted
appellant's jury trial on the remaining charges.
jury trial, appellant's clients Tina M., Erica V., and
Lisa R. testified appellant touched and/or digitally
penetrated their vaginas while massaging them. Although all
three women objected to this conduct, appellant assured them
he was doing it for therapeutic purposes, i.e., to break up
scar tissue or “work out knots” in their
genitalia. The evidence also indicated appellant had sexual
intercourse with Antoinette Y. against her will during the
course of a massage.
on his own behalf, appellant denied touching Erica or Lisa
inappropriately. He admitted touching Tina's vagina and
having sexual intercourse with Antoinette but claimed those
actions were consensual. The jury acquitted appellant of
raping Antoinette. As to the other three victims, however, it
found appellant guilty of five counts of sexual penetration
by fraud, one count of sexual battery by fraud and three
counts of simple battery. (Pen. Code, §§ 289, subd.
(d)(4); 243.4, subd. (c); 242.)
the verdict, appellant made a Marsden motion to
replace his public defender, Justin Glenn. At the time of the
motion, the bench trial on the remaining charge involving
child pornography was still pending before Judge Rogan. In
light of that pending charge, Glenn requested the motion be
heard by another judge. The basis for Glenn's transfer
request was that he did not want Judge Rogan to hear any
evidentiary matters related to the outstanding count. Judge
Rogan granted the request and transferred the motion to Judge
Scott A. Steiner for hearing and resolution.
Steiner took up the motion that very day. At the outset, he
informed appellant, “Judge Rogan has asked me to hear
this Marsden hearing so you can feel free to speak
freely with me about your concerns without any concern that
it might come back to haunt you at some later stage in these
proceedings[.]” Appellant was not happy with this
arrangement. He said he wanted Judge Rogan to hear the motion
“because the moral turpitude and dishonesty was done in
his court.” However, Judge Steiner told him he did not
have any choice in the matter and proceeded with the hearing.
voiced multiple complaints against Glenn during the hearing.
First he faulted Glenn for failing to impeach Tina and Erica
more vigorously. Appellant asserted Tina was susceptible to
additional impeachment because she made fraudulent
representations in applying for a personal line of credit.
And as to Erica, appellant claimed she filed a false consumer
complaint against him online and then told him she would not
retract the complaint unless he paid her $10, 000. According
to appellant, he alerted Glenn to these issues, but Glenn
never raised them at trial.
also criticized Glenn for neglecting to challenge the
accuracy of certain information the police presented in
seeking a protective order for Tina before trial. The police
alleged appellant had confessed to digitally penetrating Tina
during a covert phone call, but appellant claimed he never