United States District Court, C.D. California, Western Division
FINAL REPORT AND RECOMMENDATION OF UNITED STATES
SAGAR UNITED STATES MAGISTRATE JUDGE.
Final Report and Recommendation is submitted to the Honorable
Christina A. Snyder, United States District Judge, pursuant
to 28 U.S.C. § 636 and General Order 01-13 of the United
States District Court for the Central District of California.
September 22, 2006, Payman Borhan (“Petitioner”),
a California state prisoner who is represented by counsel,
filed a Petition for Writ of Habeas
Corpus(“Petition”) pursuant to 28 U.S.C. §
2254 in the United States District Court for the Southern
District of California. (Docket Entry No. 1). The Petition
was subsequently transferred to this Court. (Docket Entry No.
October 15, 2014, (following an evidentiary hearing and the
consideration of various briefs filed by the parties,
including Respondent's Return to the Petition
(“Return”); see Docket Entry No. 174),
the Court found that Petitioner was entitled to equitable
tolling of the statute of limitations and that the Petition
should not be dismissed as untimely filed. See
Amended Findings and Conclusion; Docket Entry No. 180. The
Court incorporates the “proceedings” section of
the Amended Findings and Conclusion, setting forth the
procedural history of this action. Id.
November 13, 2014, Respondent filed Objections to the Amended
Findings and Conclusion. (Docket Entry No. 183).
January 5, 2015, Petitioner filed a Reply in Support of the
Amended Findings and Conclusion Granting Equitable Tolling
(Docket Entry No. 187), and a Traverse. (Docket Entry No.
Traverse, Petitioner discussed the merits of three of the
five claims alleged in the Petition and requested that the
brief he had filed in support of the Petition
(“Brief”) on November 13, 2006 (see
Docket Entry No. 8), be deemed filed nunc pro tunc
on the day the Petition was filed. Alternatively, Petitioner
requested that the Court grant his Motion to Amend the
Petition, which had been filed on July 6, 2007 (seven months
after the Court advised Petitioner about filing an amended
petition), and the proposed First Amended Petition and Brief
in Support of the First Amended Petition, which was also
lodged on July 6, 2007 (see Docket Entry No.
Petitioner's requests concerned his desire to pursue the
claim that his trial counsel was ineffective for failing to
request a lesser-included offense instruction. (See
Traverse at 2-3 n.1, 7-8, 24-28).
January 7, 2015, the Court ordered Respondent to file a
Response addressing Petitioner's requests, and noted that
Respondent's Objections to the Amended Findings and
Conclusion did not cause the Court to change its finding
regarding Petitioner's entitlement to equitable tolling.
(Docket Entry No. 189). The Court incorporates the Amended
Findings and Conclusion Following Evidentiary Hearing,
including former Magistrate Judge Hillman's credibility
findings in this Report and Recommendation.
February 24, 2015, Respondent filed a Response to the
Traverse. (Docket Entry No. 195).
March 2, 2015, Petitioner filed an Application for Leave to
File a Reply to the Traverse. (Docket Entry No. 197).
March 4, 2015, the Court granted Petitioner's Application
for Leave to File a Reply to the Traverse, and ordered
Petitioner to specify which new claim(s) he now wishes to
pursue and the exact page and lines of the California Supreme
Court pleadings on which the new claim(s) were alleged.
(Docket Entry Nos. 197-198). On March 6, 2015, the Court
ordered Petitioner to also address the following in his Reply
to the Traverse: (1) whether the cumulative impact of
counsel's deficiencies is being alleged as a stand-alone
claim, and if so, the exact page and lines of the California
Supreme Court pleadings on which such claim was alleged; and
(2) if Petitioner is not alleging that this is a standalone
claim, the authority supporting the Court's ability to
address this claim. (Docket Entry No. 199).
March 25, 2015, Petitioner filed a Reply in Support of his
Traverse (“Supporting Reply”). (Docket Entry No.
13, 2015, Respondent filed a Response to the Supporting
Reply. (Docket Entry No. 210).
March 28, 2017, the Court issued a Report and Recommendation,
recommending the denial of the Petition on the merits.
(Docket Entry No. 14).
2, 2017, Petitioner filed Objections to the Report and
Recommendation (“Objections”). (Docket Entry No.
Court now issues this Final Report and Recommendation to
address the Objections. For the reasons discussed below, it
is recommended that the Petition be DENIED and that this
action be DISMISSED with prejudice.
December 10, 2002, a Los Angeles County Superior Court jury
found Petitioner guilty of two counts of committing a lewd
act upon a child under the age of fourteen years in violation
of California Penal Code [“P.C.”] §
288(a). In addition, the jury found true the
special allegations that Petitioner had committed the
offenses on more than one victim at the same time and in the
same course of conduct (P.C. §§ 1203.066(a)(7),
667.61(b)). (See Clerk's Transcript
[“CT”] 149-53; 4 Reporter's Transcript
[“RT”] 1204-06). On March 11, 2003, after denying
Petitioner's motion for a new trial, the trial court
sentenced Petitioner to state prison for concurrent terms of
15 years to life. (See CT 187-88, 193-94; 4 RT
Court incorporates the statements from the “Procedural
History” section of the Amended Findings and
is not challenging the sufficiency of the evidence to support
his conviction. The following summary is taken from the
“Factual Background” section of the California
Court of Appeal's Opinion on direct appeal.
(Respondent's July 24, 2007 Notice of Lodging
[“July 24, 2007 Lodgment”] No. 8 at
. . .
On approximately March 1, 2000, Valene L. and Gelesia M. were
10 years old. Valene and Gelesia were cousins. Defendant
installed a water filtration system at Valene's
father's home that day. Defendant told Valene: “You
are a beautiful young lady. Would you like to be in a
commercial?” Valene responded affirmatively. Defendant
later came to Valene's mother's home for an interview
and “audition.” Defendant demonstrated dance
steps for Valene to use in the alleged commercial. After
about 10 minutes, Valene's mother left to do laundry.
However, Valene's 16-year-old sister, Vanessa was
present. Valene's brother was also present for part of
the time. At one point, defendant had Valene sit on his lap
and say, “I love you, Daddy.” Defendant
instructed Valene to do a “cheerleading kind of
routine.” Thereafter, defendant danced with Valene. As
they danced, defendant placed his leg between her legs. The
top of defendant's knee touched Valene's vaginal area
for approximately seven seconds. Valene believed defendant
intentionally touched her. Valene became uncomfortable and
scared because she knew she should not be touched there.
thereafter, Valene saw Gelesia arrive. Valene called Gelesia
into the kitchen. Defendant told Valene and Gelesia to stand
straight. Defendant told the two girls they were not standing
up straight. Thereafter, defendant placed his open hands,
palm up underneath Valene's breasts and pushed upwards
for six or seven seconds. Valene was very uncomfortable.
Valene also believed defendant intentionally touched her
breasts. Valene also believed defendant intentionally touched
Gelesia's breasts. Defendant also placed one hand on
Valene's upper breast area and his other hand on her back
shoulder blade to straighten her posture. Valene testified as
to what happened next, “I told him that I wanted to go
and tell my mother something.” Valene then testified,
“I went outside and told my mother.” Valene's
mother told defendant they had to go somewhere. Thereafter,
Valene's mother telephoned the police.
recalled being present from the beginning of Valene's
audition. Valene's mother encouraged Galesia to join in
the “audition.” Gelesia saw defendant touch
Valene inappropriately with his leg. Gelesia also saw
defendant place both of his hands underneath Valene's
breasts and lift up. Defendant was smiling at the time.
Gelesia thought Valene appeared uncomfortable. During the
skit, defendant had Valene repeatedly say, “Oh,
Daddy.” Defendant simultaneously placed his leg between
Valene's legs and touched her “private parts”
or vaginal area with his knee. Valene looked very
uncomfortable again. Defendant also told Gelesia to stand up
straight and placed his hands underneath her breasts and
lifted up. Gelesia felt “very weird” and
uncomfortable that someone unknown to her had touched her.
Gelesia knew that what defendant was doing was wrong. Gelesia
believed defendant's acts were intentional. Gelesia did
not say anything because she was scared and nervous.
L. is Valene's sister. Vanessa saw defendant place his
hand underneath Valene's breast for approximately five
seconds. Defendant looked happy at the time. Vanessa also saw
defendant place his leg between Valene's legs. It
appeared to Vanessa that defendant's knee area touched
Valene's private area for five or six seconds. Valene
looked very serious and uncomfortable. Vanessa was not
present during the entire time defendant was auditioning her
Gonzalez was the president of Continental Water Softener
Company in March 2000. Defendant was a subcontractor for Mr.
Gonzalez's company at that time selling water
purification systems. The company was not in the process of
making any commercials or advertisements at that time.
was not authorized to audition anyone for commercials or
1998, Cynthia T. was 23 years old. Defendant drove by Ms.
T's home. Defendant told her he was a talent scout for
the Ford Modeling Agency looking for models for commercials.
Defendant gave Ms. T. his business card. Defendant later
auditioned Ms. T. at her home. Defendant showed Ms. T. a
portfolio of photos of different “girls” with
whom he worked. Defendant had Ms. T. read a few lines and
walk back and forth. Defendant got behind her. Defendant
moved his hands up and down Ms. T.'s body and instructed
her how to move. Defendant cupped Ms. T.'s breasts then
moved his hands up and down her chest and waist area. Ms. T.
was uncomfortable. Defendant also touched Ms. T.'s breast
as he ostensibly tried to straighten her posture. Later,
defendant had Ms. T. do a love scene where she was to kiss
him. Defendant repeatedly told Ms. T. to kiss him. Defendant
kissed Ms. T. and placed his tongue in her mouth. Ms. T.
backed off in surprise. Ms. T.'s mother entered the room.
Ms. T.'s mother screamed at defendant and told him to
August 1998, Song L. was approached by defendant as he drove
in her neighborhood. Defendant stopped Ms. L. as she was on
the sidewalk. Defendant said he owned a water business and
was looking for actresses for a commercial. Ms. L. was 21
years old. Defendant went to Ms. L.'s apartment to
audition her. Defendant told her he was going to do a dance
routine with her because that would be used in a commercial
for a water company. After a few dance spins and dips,
defendant stood behind Ms. L. and placed one hand over her
chest and inside her bra. Defendant placed his other hand on
her groin area. When Ms. L. asked what he was doing,
defendant responded: “Oh, it's okay. It's
okay.” Ms. L. managed to free herself from that
position. Ms. L. told defendant she no longer wanted to
participate in the “audition.” Ms. L. believed
defendant grabbed her breast intentionally as he restrained
her. Defendant had also asked her to rehearse kissing him.
Ms. L. did not want to do so. Ms. L. also believed defendant
intentionally pressed down hard on her pubic area. Defendant
had also attempted to straighten Ms. L.'s posture.
during August 1998, defendant went to the home of Brenda C.
for an audition for commercials. Ms. C. met defendant through
her sister, whom he had initially approached. Ms. C.'s
parents were present when defendant arrived at 9 p.m.
Following instructions, defendant asked Ms. C.'s parents
to leave the room so they would not influence the audition.
Defendant had a photo portfolio with pictures of other young
women. Defendant showed Ms. C. how to walk and stand up
straight by using his hand behind her back. Defendant used
his other hand to lift her breast. Defendant lifted her
breast up several times. Initially, Ms. C. did not feel
anything was “weird.” Defendant also showed Ms.
C. how to tango. As he held her back he placed his leg
between her legs. At another time during the dancing,
defendant's hand slipped into her shirt under her bra.
Defendant's hand touched Ms. C.'s right breast. Ms.
C. felt uncomfortable but thought it was
“procedure.” Ms. C. believed defendant
intentionally put his hand under her bra and grabbed her. Ms.
C. pushed defendant away. Defendant then had Ms. C. to act
excited about having won a car, run up to him, and then hug
him. After repeating that several times, defendant told Ms.
C. to tell him how much she loved him and hold his face next
to hers. When Ms. C. did so, he grabbed her face and stuck
his tongue in her mouth. Ms. C. was “disgusted”
and pushed him away. When Ms. C. refused to repeat that
“move, ” defendant told her she had passed the
raises the following claims for federal habeas relief:
Ground One: The trial court's denial of Petitioner's
motion for a continuance to retain counsel and motion for
substitute retained counsel violated Petitioner's Sixth
Amendment rights. (Petition at 5; Traverse at 32-38).
Ground Two: The trial court's admission of propensity
evidence under California Evidence Code § 1108 violated
Petitioner's rights to due process and a fair trial.
(Petition at 5).
Ground Three: Petitioner received ineffective assistance of
counsel based on (A) his trial counsel's failure to
interview and/or call witnesses; and (B) his trial
counsel's advising Petitioner not to testify. (Petition
at 6; Traverse at 4-24).
Ground Four: The trial court's failure to sua
sponte instruct the jury on the lesser-included offense
of annoying or molesting a child violated Petitioner's
rights to due process and a fair trial. (Petition at 6).
Ground Five: Petitioner's sentence constituted cruel and
unusual punishment under the Eighth Amendment. (Petition at
6; Traverse at 38-42).
STANDARD OF REVIEW
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may not grant habeas
relief on a claim adjudicated on its merits in state court
unless that adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States, ” or “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
“This is a ‘difficult to meet' and
‘highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt[.]'” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (citations
term “clearly established Federal law” means
“the governing legal principle or principles set forth
by the Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003); see also Cullen v. Pinholster, 563
U.S. at 182; Williams v. Taylor, 529 U.S. 362, 412
(2000)(“clearly established Federal law” consists
of holdings, not dicta, of Supreme Court decisions “as
of the time of the relevant state-court decision”).
However, federal circuit law may still be persuasive
authority in identifying “clearly established”
Supreme Court law or in deciding when a state court
unreasonably applied Supreme Court law. See Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Tran v.
Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000).
court decision is “contrary to” clearly
established federal law if the decision applies a rule that
contradicts the governing Supreme Court law or reaches a
result that differs from a result the Supreme Court reached
on “materially indistinguishable” facts.
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam);
Williams, 529 U.S. at 405-06; see also Cullen v.
Pinholster, supra (“To determine whether
a particular decision is ‘contrary to'
then-established law, a federal court must consider whether
the decision ‘applies a rule that contradicts [such]
law' and how the decision ‘confronts [the] set of
facts' that were before the state court.”). When a
state court decision adjudicating a claim is contrary to
controlling Supreme Court law, the reviewing federal habeas
court is “unconstrained by § 2254(d)(1).”
Williams, 529 U.S. at 406. However, the state court
need not cite the controlling Supreme Court cases, “so
long as neither the reasoning nor the result of the
state-court decision contradicts them.” Early,
court decision involves an “unreasonable
application” of clearly established federal law
“if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.”
Williams, 529 U.S. at 407; Cullen v.
Pinholster, supra; Woodford v.
Visciotti, 537 U.S. 19, 24-27 (2002)(per curiam);
Moore v. Helling, 763 F.3d 1011, 1016 (9th Cir.
2014)(courts may extend Supreme Court rulings to new sets of
facts on habeas review “only if it is ‘beyond
doubt' that the ruling apply to the new situation or set
of facts.”), cert. denied, 135 S.Ct. 2361
(2015). A federal habeas court may not overrule a state court
decision based on the federal court's independent
determination that the state court's application of
governing law was incorrect, erroneous or even “clear
error.” Lockyer, 538 U.S. at 75;
Harrington v. Richter, 562 U.S. 86, 101
(2011)(“A state court's determination that a claim
lacks merit precludes federal relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”).
Rather, a decision may be rejected only if the state
court's application of Supreme Court law was
“objectively unreasonable.” Lockyer,
supra; Woodford, supra;
Williams, 529 U.S. at 409; see also Taylor v.
Maddox, 366 F.3d 992, 999-1000 (9th Cir.
2004)(“objectively unreasonable” standard also
applies to state court factual determinations).
state court decision is found to be contrary to or an
unreasonable application of clearly established Supreme Court
law, a federal habeas court “must then resolve the
[constitutional] claim without the deference AEDPA otherwise
requires.” Panetti v. Quarterman, 551 U.S.
930, 953 (2007). In other words, if a § 2254(d)(1) error
occurs, the constitutional claim raised must be considered
de novo. Frantz v. Hazey, 513 F.3d 1002,
1012-15 (9th Cir. 2008); see also Rompilla v. Beard,
545 U.S. 374, 390 (2005). De Novo review is also
required when a claim is rejected by the state court on
procedural rather than substantive grounds, see Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002), and when it
is clear that the state court has not decided an issue.
Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir.
the state court has not provided a reasoned explanation for
its denial of the Petitioner's claims, a federal court
has no basis other than the record for knowing whether the
state court correctly identified the governing legal
principle or was extending the principle into a new context.
See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.
2000). Thus, “[f]ederal habeas review is not de
novo when the state court does not supply reasoning for
its decision, but an independent review of the record is
required to determine whether the state court clearly erred
in its application of controlling federal law. . . . Only by
that examination may we determine whether the state
court's decision was objectively reasonable.”
Id. at 982.
raised the claims raised in Ground One, Ground Two, and
Ground Five in his October 7, 2004 habeas petition to the
California Supreme Court (Case No. S128321) (see
July 24, 2007 Lodgment No. 15), and Ground Three (A) and (B)
in his July 19, 2004 habeas petition to the California
Supreme Court (Case No. S126391) (see July 24, 2007
Lodgment No. 13), which denied these claims without citation
to authority on June 8, 2005 (see July 24, 2007
Lodgment Nos. 14, 16). The Court “looks through”
the California Supreme Court's silent denial to the last
reasoned decision as the basis for the state court's
judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991) (“Where there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim rest upon
the same ground.”); Cannedy v. Adams, 706 F.3d
1148, 1159 (9th Cir. 2013) (“[W]e conclude that
Richter does not change our practice of
‘looking through' summary denials to the last
reasoned decision - whether those denials are on the merits
or denials of discretionary review.”; footnote
omitted), as amended, 733 F.3d 794 (9th Cir. 2013).
Therefore, in addressing Grounds One, Two and Three (A) and
(B), the Court will consider the California Court of
Appeal's reasoned opinion on direct appeal (see
Lodgment No. 8). See Berghuis v. Thompkins, 560 U.S.
370, 380 (2010).
California Court of Appeal denied Ground Two on procedural
grounds. (See July 24, 2007 Lodgment No. 8).
Petitioner raised the claims in Ground Three (C) and Ground
Four in his July 9, 2007 habeas petition to the California
Supreme Court (Case No. 154266) (see July 24, 2007
Lodgment Nos. 23-24), which, on January 3, 2008, denied the
claims with citations to In re Robbins, 18 Cal.4th
770, 780 (1998) and In re Clark, 5 Cal.4th 750,
767-69 (1993) (see Respondent's September 24,
2014 Lodgment No. 5). Accordingly, the Court will conduct a
de novo review of Grounds Two and Four and also
determine, alternatively, whether Grounds Two and Four are
since no state court has provided a reasoned opinion
addressing the merits of Ground Three (C) and Ground Five,
this Court must conduct “an independent review of the
record” to determine whether the California Supreme
Court's ultimate decision to deny these claims was
contrary to, or an unreasonable application of, clearly
established federal law. See Murray v. Schriro, 745
F.3d 984, 996-97 (9th Cir. 2014); Walker v. Martel,
709 F.3d 925, 939 (9th Cir. 2013).
Denials of Motion for a Continuance to Retain Counsel and
Motion for Substitute Counsel
Ground One, Petitioner contends that the trial court denied
his motion for a continuance to retain counsel and his motion
for substitute counsel in violation of his Sixth Amendment
rights. (Petition at 5; Traverse at 32-38).
The Record Below
conclusion of the preliminary hearing on August 12, 2002,
Petitioner's retained counsel made a request to be
relieved. When the court asked whether counsel was retained
for purposes of the preliminary hearing only, counsel
responded that he was retained by the family, and that all he
could say due to attorney-client privilege was that he needed
to be relieved as a result of some conflict. The court denied
counsel's request to be relieved without prejudice, based
on Petitioner's failure to specify the nature of the
conflict. (See CT 3-77).
August 26, 2002 (the date on which the arraignment was
scheduled), a deputy public defender was appointed to
represent Petitioner. At that hearing, Petitioner waived time
for trial and arraignment. (See CT 83).
arraignment on September 4, 2002, Petitioner was represented
by Deputy Public Defender Kenneth Wenzl. Jury trial was
scheduled for October 21, 2002. (See CT 84).
readiness hearing on October 17, 2002, Petitioner was
represented by Mr. Wenzl. Jury trial was continued to
November 19, 2002. (See CT 85).
another readiness hearing on November 15, 2002, Petitioner
was represented by Mr. Wenzl. Petitioner failed to appear,
but he had a sufficient excuse. The jury trial remained
scheduled for November 19, 2002. (See CT 86).
November 19, 2002, Petitioner was present “in lock
up” and represented by Mr. Wenzl. Jury trial was
trailed to November 26, 2002. (See CT 87).
November 26, 2002, Petitioner was present “in lock
up” and represented by Mr. Wenzl. Pursuant to a defense
motion, jury trial was trailed to December 3, 2002.
(See CT 88).
December 3, 2002, Petitioner was present “in lock
up” and represented by Mr. Wenzl. Jury trial was
trailed to December 4, 2002. (See CT 89).
December 4, 2002, Petitioner was present “in lock
up” and represented by Mr. Wenzl. The matter was
transferred to Division 7 for a jury trial. (See CT
afternoon, the case was called for a jury trial. In
Petitioner's presence, a panel of prospective jurors were
given a perjury admonishment. Immediately thereafter,
Petitioner stated he needed to speak to the trial court. The
trial court told Petitioner, “We'll get to that,
” and continued to address the prospective jurors about
procedures. Petitioner interrupted the trial court, stating,
“My family's bringing a private lawyer. I really do
not wish to go to the trial.” The trial court
responded, “This case is going to be tried in this
courtroom and tried today.” Petitioner again spoke out:
“Excuse me. It has -- it has not been communicated --
[¶] [¶] He has not seen me since yesterday. My
public defender has not come to see me sir. I have been
wanting to talk to him since yesterday that I don't want
to go through to trial because last night -- night -- I
talked [to] my family. My mother of my daughter from Mexico
called, and she's bringing -[.]” The trial court
appeared to interrupt, stating, “Sir, we're going
to try this lawsuit in this courtroom. Today. And I don't
want you to say another word now while the jurors are in the
courtroom. Not one more word.” Because Petitioner
continued to interrupt, the trial court asked the prospective
jurors to leave the courtroom. (See CT 91; 2 RT
the prospective jurors' presence, the trial court advised
Petitioner that the trial would go forward. The trial court
then stated: “You happen to be represented by one of
the best public defenders in our district who's been in
my court for years numerous times, and I'm not going to
accept any comments from you on the date of trial about the
ineffective assistance of your lawyer.” The trial court
continued: “[Y]ou are telling me today that on the day
of trial, the last day of trial, that you've got somebody
that's ostensibly bringing in another attorney to
represent you. It's not accepted by me. This matter came
from another department. It -- it was answered ready.
It's going to be tried.” The trial court admonished
Petitioner not to speak out when court was in session, and
that any further misbehavior by Petitioner would result in
his removal from the courtroom. The trial court stated,
“I'm not going to hear anything else about
continuance of this trial on this.” (See 2 RT
Petitioner was given the opportunity to speak, he mentioned a
past manic-depression diagnosis and two past felony
convictions (which he stated could have been two misdemeanor
convictions, but for his refusal to agree to the plea because
of his mental condition), and stated, “Yesterday, okay,
Mr. Wenzl came and brought me the -- . . . I had not seen Mr.
Wenzl since about two months, or two months ago.” After
mentioning that he had received psychiatric treatment and
medication following an attempted suicide, Petitioner stated,
“So yesterday I see Mr. Wenzl after two months, and he
comes and he say, oh, we finally got the doctor report; and
doctor suggests . . . send[ing] you to a [psychiatric]
program. . . . We are going to get you to a program.”
Petitioner stated that Mr. Wenzl told him that it would take
perhaps one year to get Petitioner into a program and that he
would talk to the deputy district attorney about it. However,
when Mr. Wenzl spoke to the deputy district attorney about
the program, he was told that Petitioner would have to face a
trial because of his two prior felony convictions. After
Petitioner stated that there was a conflict of interest
between himself and Mr. Wenzl, the trial court asked the
prosecutor to leave the courtroom in order to conduct a
Marsdenhearing. (See 2 RT 4-7).
hearing, Petitioner claimed there was a conflict of interest
for the following reasons: (1) he had asked Mr. Wenzl to
interview four people, but Mr. Wenzl had only interviewed one
person (who did not provide the answers Petitioner was
looking for); (2) he wanted Mr. Wenzl to have a psychiatrist
testify at trial but Mr. Wenzl did not want this since it
would not help Petitioner's case; and (3) Petitioner
wanted Mr. Wenzl to bring a “95” motion for
dismissal or reduction and Mr. Wenzl refused to do so.
Petitioner moved for the appointment of another public
defender and, alternatively, for permission to ...