People v. Vital

• Decision Date: 30 December 2014
• Docket Number: H039160
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DAVID VITAL, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. DAVID VITAL, Defendant and Appellant.

H039160

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

December 30, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Monterey County Super. Ct. No. SS110805A)

Following a jury trial, David Vital was found guilty of forcible sodomy (Pen. Code, § 286, subd. (c)(2)(A))¹ (count one) and sodomy while confined in state prison (§ 286, subd. (e)) (count three) based upon a single act of sodomy upon a cellmate. The jury also found true three strike allegations (§ 1170.12, subd. (c)(2)) for prior convictions of mayhem with use of a deadly weapon (§§ 203, 12022, subd. (b)), attempted voluntary manslaughter with use of a deadly weapon (§§ 192, subd. (a), 664, 12022, subd. (b)), and torture with the use of a deadly weapon (§§ 206, 12022, subd. (b)). The trial court sentenced defendant to 25 years to life on count one under the Three Strikes law and it imposed the same sentence on count two but stayed execution of that sentence pursuant to section 654.

On appeal, defendant raises a number of contentions, none of which we find meritorious.

Discussion

A. Marsden Motion

Defendant asserts that the judgment must be reversed because the trial court abused its discretion by not substituting counsel following his November 5, 2012 Marsden motion and hearing (see People v. Marsden (1970) 2 Cal.3d 118 (Marsden)). Defendant contends (1) the trial court failed to conduct an adequate Marsden inquiry and (2) the breakdown in communications between himself and defense counsel compelled a substitution of counsel.

1. Background

On July 18, 2012, Judge Julie Culver heard and denied a Marsden motion brought by defendant.

At a hearing before Judge Mark E. Hood on August 8, 2012, the court continued the case to September 5, 2012 for trial setting. Defendant told the court that he could no longer communicate with his attorney. The court told defendant that "we'll be back on September 5th and your attorney will have an opportunity to meet with you."

During the hearing before Judge Culver on September 5, 2012, the court urged defendant to speak with defense counsel and let him know of any problems. Defendant responded, "I don't trust him, period." The court explained defendant's refusal to speak with his counsel was an insufficient basis for relieving counsel. Defendant threatened that, if defense counsel came near, defendant would "snatch him," "[t]ear his ass up," and "assault him, period."²

On November 5, 2012, the day scheduled for trial, defendant appeared with defense counsel before Judge Hood. In light of what had occurred at the September 5,2012 hearing, the trial court inquired whether, at that time, defendant was asking the court to relieve counsel and appoint another attorney. Defendant indicated he was asking for his counsel to be removed. After a closed hearing, Judge Hood denied defendant's Marsden motion.

2. Governing Law

"[A]t any time during criminal proceedings, if a defendant requests substitute counsel, the trial court is obligated, pursuant to [the Supreme Court's] holding in Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney. (Marsden, supra, 2 Cal.3d at p. 126.) In turn, if the defendant makes a showing during a Marsden hearing that his right to counsel has been ' " 'substantially impaired' " ' (Marsden, supra, at p. 123), substitute counsel must be appointed as attorney of record for all purposes. ([People v. Smith (1993)] 6 Cal.4th 684, 695-696.)" (People v. Sanchez (2011) 53 Cal.4th 80, 90.)

"[A] trial court cannot discharge its duty [under Marsden] without hearing the reasons for the defendant's belief that his or her attorney has not afforded adequate representation. (Id. at pp. 123-124.)" (People v. Martinez (2009) 47 Cal.4th 399, 417-418.) Rather, it must "listen to [a] defendant's reasons for requesting different counsel." (Marsden, supra, 2 Cal.3d at p. 126.) The court must give a defendant "an opportunity to present argument or evidence . . . . [Citation.]" (Id. at p. 124.)

"A trial court is required to substitute counsel ' "in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused." ' [Citation.] Alternatively the trial court must substitute counsel where it is demonstrated that counsel and defendant are embroiled in an irreconcilable conflict. (People v. Abilez (2007) 41 Cal.4th 472, 488 . . . .) The decision to substitute counsel is within the discretion of the trial court; this court will not find an abuse of discretion unless the trial court's failure to substitute counsel would ' " 'substantially impair' thedefendant's right to effective assistance of counsel." ' (Ibid.)" (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)

3. Adequate Inquiry by the Court

Defendant asserts that "the trial court failed to discharge its duty to inquire into the nature of, or reasons for, the communication breakdown or to take other steps to ease [his] concerns."

On November 5, 2012, defendant indicated that he had not communicated with his defense counsel in six months. He represented that he had told the judge who heard his prior Marsden motion, which was denied on July 18, 2012, that he had given defense counsel the real names and CDC numbers of witnesses but his counsel had falsely stated that defendant had provided only their nicknames and counsel had been required to search for their real names. Defendant said, "[W]hen he lied in court, that was the clencher right there. There is no reason for that."

Defendant also complained that he had told defense counsel that this was a "fraudulent case" and he was not making a "deal" in this case. Nevertheless, his counsel had presented a plea deal to him.

The court recapped that defendant believed that defense counsel had not spent enough time communicating with him about the case and he had not "followed up on suggested witnesses."

Defendant brought up that he had told his defense counsel that they needed to get his medical file, which would show that he had a problem with his right foot and the foot had required surgery; defendant asserted that it was impossible for him to have lifted "the plaintiff." Defendant also mentioned that "the plaintiff" had two other similar prison cases in which "the plaintiff" was supposedly the victim. Defendant indicated that "a lid" had been put on "the medical records of the plaintiff."

The court asked defense counsel to describe his legal background. Defense counsel mentioned, among other things, that he had been a police officer before going to law school.

As to the lack of communication, defense counsel indicated that he had twice tried to see defendant at the CTF³ without success. Counsel had written a letter to defendant after his first attempt to see defendant. Counsel had tried to see defendant again. Counsel was told by a correctional officer that defendant was refusing to attend his attorney visit. Counsel acknowledged that defendant and he had been out of contact for awhile but he asserted that it was not because he had not tried.

In response to questioning by the court, defense counsel indicated that he had followed up with witnesses or potential witnesses. As to the victim's medical file, defense counsel had attempted to get that information.

When the court asked defendant whether there was anything else, defendant indicated that he would like Judge Hood to rehear his prior Marsden motion. Defendant also complained that defense counsel was dealing with too many cases. In addition, he declared that he never would have accepted defense counsel to begin with if he had known that counsel had been a police officer.

The trial court gave defendant ample opportunity to disclose and elaborate upon his grievances with defense counsel. Defendant spoke at length and defense counsel was allowed to respond. The court ascertained the nature of the defendant's dissatisfaction with his counsel; its inquiry was sufficient.

4. November 5, 2012 Marsden Motion Properly Denied

Defendant argues that the trial court abused its discretion by not substituting counsel because there had been "a complete breakdown in communication [betweendefense counsel and him], for an extended period, at a critical juncture . . . ." He does not claim that his defense counsel had performed incompetently prior to the motion.

"A defendant 'cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney.' [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 918.) "[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. [Citation.]" (People v. Smith, supra, 6 Cal.4th at pp. 696-697.) "A ' " 'lack of trust in, or inability to get along with, an appointed attorney' " ' is an inadequate basis on which to substitute counsel. [Citations.]" (People v. Clark, supra, at p. 918.) "If a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law. [Citations.]" (People v. Jones (2003) 29 Cal.4th 1229, 1246.) Moreover, " '[a] trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel . . . .' [Citation.]" (People v. Clark, supra, at p. 913.)

A defendant's complaint that his appointed cou...