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People v. Jackson

California Court of Appeals, Fourth District, Third Division

February 27, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL JAMES JACKSON, Defendant and Appellant.

         Appeal from a judgment of the Superior Court of Orange County No. 13NF3826, James E. Rogan and Scott A. Steiner, Judges. Affirmed.

          Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala 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 Respondent.

          OPINION

          BEDSWORTH, ACTING P. J.

         The 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.

         Appellant 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 judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Appellant 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.

         At the 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.

         Testifying 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.)[1]

         Following 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.[2]

         Judge 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.

         Appellant 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.

         Appellant 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 confessed ...


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