California Court of Appeals, Fourth District, Second Division
from the Superior Court of San Bernardino County No.
FVI1302657. Debra Harris, Judge. Affirmed with directions.
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant.
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Charles C. Ragland and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and
and appellant Philip Raymond Mejia appeals his conviction for
torture, spousal rape, spousal abuse, and criminal threats.
We reject his contention that the court should have conducted
a hearing pursuant to People v. Marsden (1970) 2
Cal.3d 118 (Marsden) based on defendant's
statements during a hearing on his request to represent
himself. We also reject his contentions concerning the
improper admission of evidence. We agree, however, that Penal
Code section 654 requires remand for resentencing.
was charged with one count of torture (§ 206; count 1);
one count of spousal rape with tying and binding
(§§ 262, subd. (a)(1), 667.61, subds. (b), (e)(5);
count 2); one count of infliction of corporal injury on a
spouse (§ 273.5, subd. (a); count 3); and one count of
criminal threats (§ 422; count 4). As to all four
counts, the information alleged that defendant administered
methamphetamine to the victim in the commission of the
returned guilty verdicts on all four counts. It found the
allegation of tying and binding true, but found the
allegation of administration of methamphetamine not true as
to all counts.
trial court imposed the upper term of four years in state
prison on count 3, with a consecutive term of eight months on
count 4. On count 2, the court imposed a term of 15 years to
life, and on count 1, it imposed a term of “seven years
to life” in state prison. Defendant filed a timely
notice of appeal.
and the victim met when she was 15 years old. When she was 18
or 19 years old, they were married. By the time the victim
was 20 years old, she had three children. She and defendant
used methamphetamine together but stopped when the third
child was born. From the beginning, defendant said
“mean things” to the victim and would sometimes
hit her. In approximately March 2013, when defendant lost his
job, his abusiveness slowly got worse. On one occasion,
defendant burned her leg with a methamphetamine pipe when she
said she did not want to smoke the drug. On another occasion,
he hit her all over her body with a wooden flute. Other
times, he hit her on her head with his hands.
victim suspected that defendant had cheated on her, but she
“couldn't question what he was doing.”
Talking back to defendant or not wanting to do what he asked
would “set him off.” In order to start a
conversation about infidelity, she told him, untruthfully,
that she had cheated on him. He was angry and talked about
punishing her. He said there were “consequences.”
On other occasions, defendant would handcuff her to the bed
frame and make her lie on the floor. They had occasionally
used the handcuffs during sex, for “fun purposes,
” but after that, it “wasn't fun
anymore.” Defendant would sometimes leave her
handcuffed to the bed for hours or days at a time. While she
was handcuffed, she was not able to eat or drink water.
Defendant would “sometimes” allow her to go to
the bathroom, but sometimes she was forced to
“go” on herself. The handcuffs sometimes cut or
bruised her wrists.
point, defendant began to video record their sexual activity.
The victim could not remember why it started, but it was
after defendant lost his job. She was “kind of
okay” with it in the beginning, but sometimes she would
get embarrassed and push the cell phone or camera away. At
the beginning, there were no handcuffs or abuse, other than
defendant “being mean” and telling her what to
do. Defendant became increasing abusive, hitting her, using a
Taser on her, keeping her from her children and handcuffing
her. She had “too many [Taser] marks to count” on
her chest and stomach. He “tased” her once while
she was tied to a chair.
taped her to a chair with duct tape and put duct tape over
her mouth, making it hard to breathe. On one occasion, she
was bent across the chair on her stomach, with her head on
the floor. Defendant had intercourse with her while she was
bound. She shook her head to indicate that she did not want
to, but she could not otherwise protest. He also engaged in
anal intercourse with her on some occasions, even though she
said she did not want to, because it hurt. Although she
sometimes engaged willingly in oral sex, there were times
when she did not want to do it, but did anyway so that
defendant would not hit her or handcuff her. Defendant would
sometimes force her. On one occasion, he sodomized her with a
point, defendant cleared the victim's clothes out of the
bedroom closet and put a baby mattress on the floor. He
locked her in the closet with a bucket and told her to stay
there and not move. He said he was going to have other men
come to the house and force her to orally copulate them. He
also threatened to sell the videos on YouTube. He threatened
to wrap her in a rug and set her on fire. He once threw
gasoline on her while she was in the closet. Then he shut her
in the closet and left her there for hours. On one occasion,
he cut the side of her thigh with a small screwdriver.
point, the victim asked defendant to let her kill herself. He
tied a rope around her neck and had her stand on a bucket. He
kicked the bucket away and let her hang while he was holding
the rope. The rope cut her neck.
victim did not have a key to the couple's apartment.
Defendant screwed the front door closed to keep people from
coming in. He also added locks to the door. There was also a
surveillance camera in the living room.
least once, defendant hit the victim so hard that she lost
consciousness. He revived her by throwing ice on her. On one
occasion, he put duct tape on her face, put a wet towel on
her face and over her nose, and poured water on her. She
could not breathe. Defendant had a device he said was used to
strangle a person and threatened to use it on her, to
frighten her. He never used it, however.
August 21, 2013, the victim was late getting the oldest child
ready for school. Defendant smacked her with his hand on the
back of her head. She then got the middle child ready for
school. Defendant took that child to school; the oldest one
stayed home. Before defendant left, he hit the victim on the
back of the head again and said he would “beat the
shit” out of her. However, when he left, he left the
door unlocked. She ran to a neighbor's apartment with the
two children and called the police. The neighbor said that
the victim appeared “petrified.” While she was on
the phone with the police, she could hear defendant shouting
because he could not find her. She had multiple bruises on
her face from prior incidents.
police officer who responded first spoke to the victim and
observed her injuries, including burn marks on her stomach.
He then entered the couple's apartment. He found a Taser
in a drawer in the bedroom, a baggie of methamphetamine in a
tool box, and handcuffs on the bedroom floor. He also
observed a live feed from a camera in the living room, being
shown on a television screen. He saw a toddler bed in the
closet and observed that the closet locked from the outside.
who arrived later spoke to the victim and observed that she
was extremely thin and had multiple cuts, bruises and
abrasions in various stages of healing, and Taser marks on
her stomach. In the couple's apartment, the detectives
found a strangulation device and handcuffs in the bedroom, a
bag of methamphetamine and a methamphetamine pipe, a rope and
a gasoline can. They also found several digital flash drives
containing videos of various sexual acts.
videos were played for the jury. A transcript of the
conversations heard on the videos was provided to the jury
and admitted into evidence.
of the videos, defendant said to the camera, “The
reality of it is, is yes, if she does anything stupid I will
kill her. Number two, she thinks that camera's a joke.
[Its purpose] is to show you, when you fuck with the wrong
person, husband, wife, child... you do the wrong things,
there's a consequence sooner or later in life.”
another point, he said, “[I]t was her choice. She chose
this okay um... she has bruises all over her legs. I did
that. I did that because I tied her ass up, I beat the shit
out of her, I tased her. I fucked her in the ass and I did
everything I fuckin' wanted to do and I could have done
more because she's a bitch.” He told the victim
that he was recording the session for YouTube, but
“[n]ot the rape, not any of that.” He told his
“audience” that the victim “may not
die” that day, “but you will see what a hostage
can and will go through. There's torture, pain, tape,
chains, uh knives, needles, water... a lot of things that...
a person can use to start getting to somebody.” He
later told her that if she continued to lie to him, he would
put her murder on YouTube.
COURT WAS NOT REQUIRED TO HOLD A MARSDEN HEARING
BASED ON STATEMENTS DEFENDANT MADE DURING A
is required to hold a hearing into a defendant's
complaint that his court-appointed attorney is not providing
competent representation whenever the defendant clearly
indicates that he is seeking substitution of counsel.
(Marsden, supra, 2 Cal.3d at p. 123;
People v. Valdez (2004) 32 Cal.4th 73, 97;
People v. Lucky (1988) 45 Cal.3d 259, 281 & fn.
8.) Defendant contends that because he expressed
dissatisfaction with his attorney during a hearing on his
request to represent himself, the trial court was obliged to
conduct a Marsden hearing. As we discuss, however,
defendant made it clear during that hearing that he was not
seeking substitution of counsel but wanted to represent
himself. Accordingly, the court had no duty to conduct a
issue arose as follows: On April 10, 2014, the trial court
commenced a Marsden hearing based on its
understanding that defendant wanted a new attorney. However,
defendant explained to the court that he was not seeking a
new attorney. What he wanted was to have his “conflict
answered.” He did not elaborate as to what that meant.
Because defendant stated unequivocally that he did not want a
new attorney, the court concluded the hearing.
November 21, 2014, the court again convened a
Marsden hearing. The court stated that it had
received a “conflict of interest and complaint
letter.” In the letter, defendant stated that he wanted
his public defender, Michael Mendoza, dismissed for
incompetence. Defendant stated that Mr. Mendoza was not
communicating with him, that he had breached defendant's
direction not to negotiate with the district attorney, that
he had failed to retrieve evidence defendant wanted him to
obtain, that he had failed to file a
Pitchess motion, and that he had failed to
ensure a hearing on the record of a motion, filed by
defendant personally, seeking to set aside the information
pursuant to section 995. The court listened to