Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA100435. Michael L. Schuur, Commissioner.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Appellant was convicted after a jury trial of three counts of committing lewd acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1, 2, & 3), and attempted lewd act with a child (§§ 664/288, subd. (a); count 4). With respect to counts 1–3, the jury found appellant had substantial sexual conduct with the victim. (§ 1203.066, subd. (a)(8).) Appellant was sentenced to a total of seven years in state prison, six years on count 1, and two six-year terms for counts 2 and 3 to be served concurrently with count 1, plus a consecutive one-third the middle term of one year for count 4. He was ordered to pay a restitution fine of $1,000 (§ 1202.4, subd. (b)); register as a sex offender; and submit to AIDS testing. A parole restitution fine of $1,000 was imposed and stayed. (§ 1202.45.)
All further statutory references are to the Penal Code.
Appellant was represented by an attorney throughout the proceedings and contends on appeal that the trial court erred in failing to appoint new counsel for him during the trial due to a conflict of interest with his attorney, and failed to conduct an adequate inquiry into the conflict per People v. Marsden (1970) 2 Cal.3d 118. We find no merit to appellant’s contentions and affirm.
FACTUAL BACKGROUND
Appellant was charged with molesting his 13-year-old stepgranddaughter. The trial testimony disclosed the following.
F.G. testified that in December 2006 she lived in Whittier with her father, her stepmother Priscilla, her sister A.G., and appellant, her stepgrandfather who was Priscilla’s father. Sometime after Christmas she went shopping with appellant and then to a movie theater to see “Happy Feet.” Before entering the theater, appellant took her to the side of the theater and asked her to touch his penis. He was wearing stretchable sweatpants at the time. He guided her hand towards his penis and holding her hand, pulled it back and forth on his penis until his penis got hard, which took about two minutes. He made her promise not to tell anyone or he would get into trouble. He then took her to see the movie.
F.G. testified that about a month later, when she was taking appellant’s mail to him in his room, appellant again asked her to touch his penis. It was in the afternoon, and no one else was at home. Appellant was lying on his bed in sweatpants. He again guided her hand, and pulled her hand back and forth until his penis got hard. He again made her promise not to tell anyone. This happened once again about a month later when appellant was again on his bed, in sweatpants. She testified that it was her responsibility to take care of the mail.
On another occasion when F.G. went with appellant to a mall, he touched her on her breast, over her clothes. He also tried to touch her on her vagina, over her clothes. He tried to stick his finger into her, but F.G. moved away and would not let him. He also tried to push her head down towards his penis and wanted her to “give him head,” but she refused.
F.G. testified that sperm had come out on one of the occasions, but she did not remember exactly when.
F.G.’s father and Pricilla separated, and F.G. went to live in Moreno Valley with her father and sister. In April 2007, she and her sister A.G. went to visit their stepmother in Whittier. F.G. was sleeping in her stepmother’s room when appellant came in and asked her to have sex with him. She refused.
A.G., who was 17, testified that during that visit to her stepmother’s house she had spent the night at a friend’s and returned to her stepmother’s house at about 9:00 or 10:00 in the morning. Appellant was taking a shower at that time, and F.G. was asleep in her stepmother’s room. A.G. laid down in the living room. She heard appellant come out of the bathroom and go to her stepmother’s room where F.G. was sleeping. She heard appellant say, “Come on, there’s no one home. We can do anything we want.” “Come on, baby. Let’s do it.” F.G. said no. When her stepmother returned home at about noon, A.G. told her what had happened. Her stepmother spoke with F.G. and then called the police.
Los Angeles County Deputy Sheriff Ron Sanchez testified that on April 5, 2007, he received a call about suspected sex crimes against a minor. He arrived at the Whittier house at around 12:45 p.m and interviewed the stepmother, F.G. and A.G. He also interviewed appellant who said that during the December 2006 incident at the movie theater, F.G. began touching him all over his body, including his genitals, and that she had initiated the second and third incidents as well. He said that during the third incident, F.G. took his hands and made him touch her breasts. He said that F.G. had approached him the night before and asked him to have sex with her, but he knew it was wrong so he refused. He then asked her in the morning if she wanted to have sex but she said no. Appellant was 52 years old.
The defense called Dr. Barton Wachs, an urologist, who had reviewed the police reports in the case, and appellant’s medical reports. He testified that the medical records disclosed that appellant suffered from end stage renal failure; that he was on dialysis, and suffered from severe diabetes. He testified that based on appellant’s condition, it was his opinion that appellant suffered from severe erectile dysfunction. Dr. Wachs was doubtful that appellant could get a firm erection. He testified that appellant could have a soft erection, but that he would have a very difficult time ejaculating. He also testified that taking Viagra would not help appellant achieve a firm erection.
Appellant did not testify.
DISCUSSION
Contentions.
Appellant contends that his convictions are reversible per se because he and his lawyer “were embroiled in an irreconcilable conflict and the court failed to conduct an adequate inquiry” into the conflict and failed to appoint substitute counsel for him.
Procedural Background.
After the testimony of F.G., A.G. and Deputy Sanchez had been presented, the court inquired about the balance of the evidence the parties expected to present. The court asked if appellant was going to be testifying. Appellant responded that he did not intend to testify because “according to my attorney, he said it’s a bad deal for me to testify.” The court responded that appellant should listen to his attorney because he had done trials and appellant had not. Appellant said that he wanted the judge to read a letter that he had. The court accepted and read the letter.
The letter stated: “9/11/07. Dear Judge, [¶] On September 10th, my attorney Mr. G. Gomez was supposed to call my daughter [M.S.] as a character witness on my behalf. [¶] I found out from my daughter [M.S.] that the district attorney is trying to coerce her to testify against me in this trial. [¶] It is critical that my daughter be able to testify for me as a character witness because she is the one person who can paint a true picture of the type of individual I am. [¶] By not calling this witness, and by not properly cross examining the witness [L.G.] and the LA County Sherriff [sic] that testified, I am concerned that key areas of my defense have been compromised. Not to mention that on two separate occassions [sic] while attempting to communicate with my attorney he abruptly told me to ‘shut up!’ [¶] I believe this creates a conflict of interest between myself and my attorney who seems to be working with the district attorney. I wish for this letter to be a part of these proceedings. At this point I respectfully request a state appointed attorney to represent me further. [¶] Respectfully, John Soto.”
After reading the letter, the court stated that he did not find any conflict of interest. The court then inquired of defense attorney, Deputy Public Defender Gregory Gonzales, whether he intended to call appellant’s daughter M.S. to testify for the defense. Counsel indicated that he did not intend to call M.S. as a witness, but that if he did, it would be for a limited purpose as she was not percipient to anything. The court conversed with appellant, saying that it was not the court’s intent to discourage appellant from testifying, but that one reason his attorney may not want him to testify was that his statement to the police had already come in, and unless there was something else he wanted to present, testifying might not be a good idea because he would then be subject to cross-examination and other things might come out.
Appellant replied that his attorney had said that he was “guilty for talking to the police,” but that he had spoken to the police with the understanding that the interview was going to be recorded, but it was not recorded. He also stated that the officer’s testimony was “total lies.” The court then said that if he wanted to take the stand and testify that he did not make the statements to the police, it was a matter he and his attorney should consider.
Proceedings then resumed. Deputy Sanchez’s partner Deputy Robert Shortridge testified that he had administered an admonishment to appellant and received a waiver before appellant’s interview was conducted. The people then rested, and the defense called Dr. Wachs as their only witness.
No Reversible Error Shown.
A defendant is entitled to the substitution of new appointed counsel where the record clearly shows that the first appointed attorney is not providing adequate representation, or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Memro (1995) 11 Cal.4th 786, 857.) When a defendant seeks to discharge appointed counsel and substitute another on the grounds of inadequate representation, the defendant must be permitted to explain the basis of his contention and to state specific instances of the inadequacy of counsel’s performance. (People v. Roldan (2005) 35 Cal.4th 646, 681 (Roldan).) We review the court’s rulings for an abuse of discretion. (Ibid.) Denial of such a motion is not an abuse of discretion unless the defendant has shown that a failure to replace counsel would substantially impair his Sixth Amendment right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604; accord, Roldan, supra, at p. 681.)
“‘By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics.’ [Citations.]” (In re Horton (1991) 54 Cal.3d 82, 95.) As to the decision of whether or not to testify, it is only when an express conflict exists between the defendant and counsel that the defendant’s desires must prevail. (Roldan, supra, 35 Cal.4th at pp. 673–674; accord, People v. Hinton (2006) 37 Cal.4th 839, 873–874; People v. Bradford (1997) 15 Cal.4th 1229, 1332.)
Furthermore, a defendant does not have the right to present a defense of his own choosing; rather, a defendant has the right to an adequate and competent defense. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) Tactical disagreements between the defendant and his attorney do not by themselves constitute an irreconcilable conflict. When a defendant has chosen to be represented by counsel, counsel is then “captain of the ship” and has the right to make all but a few fundamental decisions for the defendant. (People v. Carpenter (1997) 15 Cal.4th 312, 376; People v. Welch (1999) 20 Cal.4th 701, 728–729.)
An actual conflict of interest means that a conflict affects counsel’s performance. (Mickens v. Taylor (2002) 535 U.S. 162, 171.) Under the federal Constitution, the defendant need not demonstrate specific, outcome-determinative prejudice to obtain a reversal but must show that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance. To show a violation under our state Constitution, a defendant need only demonstrate a potential conflict as long as the record supports an “informed speculation” that the asserted conflict adversely affected counsel’s performance supported by a factual basis disclosed in the record. (Roldan, supra, 35 Cal.4th at pp. 673–674; accord, People v. Dunkle (2005) 36 Cal.4th 861, 914–915 (Dunkle).)
To determine whether counsel’s performance was adversely affected requires an inquiry into whether counsel “‘pulled his punches,’” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict; the record must be examined to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason that might have caused any such omission. (Dunkle, supra, 36 Cal.4th at p. 915.)
An examination of the record here reveals no evidence of an actual conflict of interest that affected trial counsel’s performance. Nor is there any indication that counsel’s acts resulted in the “pulling of punches” that prevented the presentation of a complete defense. (Dunkle, supra, 36 Cal.4th at p. 914.) The decisions cited by appellant—Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181 (Daniels), and Plumlee v. Sue del Papa (9th Cir. 2005) 426 F.3d 1095—do not require a different result.
The Schell court held that when there is a complaint of an irreconcilable conflict with counsel, the trial court must inquire into the nature and extent of the conflict. The trial court also must determine by its questioning whether the conflict deprived the defendant of the representation guaranteed by the Sixth Amendment, and if so, whether the defendant suffered prejudice from such irreconcilable conflict. (Schell, supra, 218 F.3d at pp. 1027–1028; see Plumlee v. Masto (9th Cir. 2008) 512 F.3d 1204, 1211.) The trial court here read the letter appellant had written which disclosed his dissatisfaction with counsel. We find no error in the court’s conclusion that the letter did not support a finding of an irreconcilable conflict. Further inquiry by the court as to counsel’s intentions with respect to the calling of appellant’s daughter M.S. as a witness disclosed that counsel had indeed considered the issue, that he had an understanding of what her testimony might reveal, and that he had made a determination as to whether or not she should be called. There is no indication of any lack of communication. And, it is clear that counsel fully understood the issues surrounding the calling of this witness.
The decision in Plumlee v. Sue del Papa, supra, 426 F.3d 1095 is also of no assistance to appellant. That decision was vacated and amended and then published, as amended, in Plumlee v. Del Papa (9th Cir. 2006) 465 F.3d 910. On August 10, 2007, a rehearing was granted. In Plumlee v. Masto, supra, 512 F.3d 1204, the Ninth Circuit en banc denied that defendant’s petition for a writ of habeas corpus. That court held that pursuant to Cuyler v. Sullivan (1980)446 U.S. 335, 350, there was no conflict of interest in that “the lawyer’s own private interest and those of [his] client” were found to be incompatible. (Plumlee v. Masto, supra, at p. 1210.)
The court in Plumlee v. Masto, supra, 512 F.3d at page 1210 explained that all the defendant had shown in his petition was that his “relationship with his public defender was dysfunctional due to his subjective distrust of the office and that this created a ‘conflict.’” That court pointed out that defendant’s dissatisfaction with his trial counsel was wholly subjective. The court cited Morris v. Slappy (1983) 461 U.S. 1, 13 to 14 (Morris), and reiterated that there was no Sixth Amendment right to develop a “meaningful relationship” with trial counsel. (Plumlee v. Masto, supra, at pp. 1210–1211.) Before or during trial, the Plumlee trial court had made a detailed inquiry into the issue of the defendant’s relationship with his trial counsel and determined there was no basis for the defendant’s unwillingness to cooperate with counsel. Consequently, the court en banc concluded that defendant’s case could properly be characterized as falling into the category of cases similar to Morris, and there was no Sixth Amendment violation. (Plumlee v. Masto, supra, at p. 1211.) Based on the evidence here, we do not find that the relationship between appellant and counsel had even reached a point of being dysfunctional. All that is revealed is that defendant wanted to call his daughter to testify as to his character, and counsel did not ultimately think that the testimony was helpful to the defense. Nor is it apparent from the record that such evidence would have been admissible. As for appellant’s desire to testify, it is easy to understand that counsel might conclude that appellant’s testimony that the officer witnesses were totally false in their testimony would not be helpful to appellant’s case.
In Daniels, supra, 428 F.3d at pages 1199 to 1201, the court held that a complete breakdown in communication between counsel and the defendant requires a substitution of counsel and that a constructive denial of counsel is presumably prejudicial. The evidence here is distinguishable from Daniels, and does not support a finding that there was a complete breakdown in communication between appellant and Mr. Gonzales. Rather, the evidence indicates a disagreement with respect to the trial strategy, which did not amount to constructive denial of counsel.
Although appellant contends that the court failed to conduct an adequate inquiry into his dissatisfaction with counsel, and should have conducted a hearing in camera, the records reveals that appellant’s letter to the court and the court’s inquiry revealed the entirety of appellant’s complaints: his desire to testify and his desire to call his daughter as a character witness. We conclude that appellant did not present a “colorable claim” that his attorney was inadequate, and therefore find no basis to find that the trial court either failed to conduct a proper hearing or abused its discretion in denying the motion and declining to substitute counsel. (People v. Smith (1993) 6 Cal.4th 684, 697.)
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.