Filed 8/7/13 P. v. McFadden CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055069

v.                                                                       (Super.Ct.No. FBA1100054)

EMANUEL EDWARD MCFADDEN,                                                 OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Victor R. Stull,

Judge. Affirmed with directions.

         Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Seth Friedman, Peter Quon, Jr.,

and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury convicted defendant, Emanuel McFadden, of inflicting corporal injury on a

cohabitant (Pen. Code, § section 273.5, subd. (a)).1 In bifurcated proceedings, the trial

court found true allegations that defendant had suffered two strike priors (§ 667, subds.

(b)-(i)) and six prior convictions for which he served prison terms (§ 667.5, subd. (b)).

He was sentenced to prison for 25 years to life plus four years and appeals, claiming the

trial court should have granted his requests for substitution of counsel, evidence of prior

acts of domestic violence should have been excluded and his request to dismiss one or

both of his strike priors should have been granted. We reject his contentions and affirm,

while directing the trial court to correct an error in the abstract of judgment.

                                           FACTS

       The victim testified as follows: As of January 23, 2011, she had been defendant’s

cohabitating girlfriend for seven months. Sometime after noon, she was sitting on the

couch in the living room with defendant’s minor nephew when an acquaintance came to

the door, asking for a cigarette. She awoke defendant, who was sleeping in their

bedroom, and told him about the request. After the acquaintance left, defendant entered

the living room, grabbed the bowl of noodles she was holding and hit her on the back of

the head with it, breaking the bowl, while saying, “Bitch, you disrespected me.” The

victim responded with cussing. Defendant punched the victim from her face to her chest.

The victim got off the couch and defendant pulled her down the hallway to the bedroom

by her hair, pulling out her extensions, while continuing to punch her because she had

       1   All further statutory references are to the Penal Code unless otherwise indicated.



                                              2
tried to run away. The victim did not fight back, but pulled herself into the fetal position

after falling on the bed while defendant continued to punch her and pull her hair. The

victim rolled onto the other side of the bed and got up, but defendant came over and

continued to punch her. He hit her with a “door rail” or dowel on the shin and stomach.

He also choked her. She ran out of the house and across the street, but defendant caught

up with her, grabbed her and said, “Bitch, get your ass back in the house.” She went back

inside and defendant beat her and his nephew. She told his nephew to call the police.

Defendant hit her face and body, opening up one of the stitches she had received earlier

in the day above her eye. Defendant went into the living room where his nephew was on

the phone with the police, asked his nephew if the latter had called the police and when

the nephew said he had, defendant ran into the bedroom, changed his shirt and left the

house. The victim verified that the defendant had inflicted the injuries that were depicted

in pictures of her taken by the police when they arrived. She also identified pictures

taken at the scene that depicted her hair extensions on the floor of her home. She told the

police who arrived what defendant had done to her, including punching her, cutting her

above the eye and hitting her with a stick. After the police left, defendant returned to the

home, but the victim hid from him in the closet. Defendant screamed the victim’s name,

but she did not come out. Defendant’s nephew called the police again, but by the time

they arrived, defendant had left.

       The victim kept in contact with defendant after he was arrested, talking to him on

the phone and writing him letters. During one of those calls, in late January or early

February, a recording of which was played for the jury, defendant told the victim that if


                                             3
she did not cooperate, the police and the prosecutor had nothing to use against him and

“[i]t could be beat . . . if my witnesses don’t come.” In another call, around the same

time, the victim repeated back to defendant what he had told her about there being no

case if there were no witnesses. Defendant told the victim that she could not come to

court and she could not be forced to testify against him—that she could be threatened

with being taken to jail, but the most time she would get would be 30 days. The victim

reported to defendant that she was trying to get some third person to get defendant’s

nephew out of the area and “just chill. Defendant instructed the victim to get the

paperwork for the nephew and take him out of school. She testified that she understood

this to mean that she and defendant’s nephew should not show up for trial. Defendant

commented that the pictures the prosecutor had (presumably of her injuries) were bad for

his case. Defendant instructed the victim to say that she got her injuries on the railroad

tracks which would leave law enforcement and the prosecutor’s office with nothing. He

told her that she should forgive and forget the injuries that were inflicted on her on the

23rd. He urged her to go to the police station and claim that she had filed a false report

against him and she forced his nephew to say what the latter had said about the incident.

She agreed to do the latter. At the end of the call, she and defendant exchanged “I love

you”s.

         She testified that defendant instructed the victim to drop the charge against him

and she wanted to protect him because she still loved him. At the preliminary hearing,

she said the injuries she sustained on January 23rd occurred when she fell on the railroad




                                               4
tracks while intoxicated. She lied and said that defendant had not hurt her on that day in

order to help him.

       On March 3, 2011, she told a defense investigator the same story about falling on

the railroad tracks. She lied when she told the investigator that a friend2 had picked her

up by the tracks, taken her to the hospital and returned her home, where she used drugs

and drank. She lied when she told the investigator that after the acquaintance who came

to the door looking for a cigarette had left, she had lost control, called defendant a son of

a bitch, threw defendant on the couch and started tearing up the house. She also lied

when she told the investigator that she had gotten mad at defendant because he had gotten

out of bed to talk to the acquaintance who came to the door looking for a cigarette, but

defendant would not get up to drink with her.

       She testified that she had written a letter to the Public Defender’s Office, which

was introduced into evidence. In the letter, she repeated the above-mentioned story,

adding that she grabbed defendant while going crazy, yelling and screaming and

punching the walls. She wrote that she and defendant yelled back and forth, defendant

told her to calm down and take her medications for bipolar disorder and schizophrenia

and defendant’s nephew called the police and reported that defendant was beating the

victim even though he wasn’t. She said in the letter that defendant’s nephew had anger

problems and had gotten mad at defendant for the latter not letting him play with the Play

Station. She also said in the letter that the nephew had said that he was going to get

       2 This turned out to be the same person who had actually taken her and defendant
to the hospital earlier that day.


                                              5
defendant out of the house, the nephew had a habit of lying, which was documented in

his medical records, and she was removing the extensions from her hair which is why

they were all over the house.

        At trial she testified that this letter contained lies, she had written it to cover for

defendant and a woman who eventually testified at trial for the defense had helped her

write it.

        She testified that she was bipolar, schizophrenic, had a heart condition and was not

taking her medications on January 23. She admitted that she had changed her story three

or four times. She also admitted that on numerous occasions, she had filed false domestic

violence police reports against her mother, ex-husband, sister and son when she was a

crack addict. She testified that she had told a sheriff’s deputy in May 2011, that

defendant’s sister had threatened to “whoop [the victim’s] ass” concerning this case. She

denied telling defendant’s nephew what to say, even though, at the beginning, she told

him not to say anything.

        A recording of an interview the victim had with the police after they arrived at her

house the first time on January 23, 2011 was played for the jury. In it, the victim said

that defendant beat her. She admitted that she had anger problems and a rap sheet. She

also said that defendant was very violent and was known to shoot people, so she was

afraid to go to court. She said that a few days prior, defendant had scratched her neck,

but January 23 was the first time he had actually beaten her to the extent he did. She

reported that defendant used a stick on her, threw a bowl and broke it and choked her

because she “met a tall guy who wanted a cigarette.” She said that defendant had


                                                 6
dragged her to the bedroom, beaten her while she was on the bed and she rolled over but

he went to the other side of the bed and continued to beat her, she ran out the door while

defendant was talking to his nephew, but defendant caught up with her, grabbed her by

the hair and returned her to the house.

       The officer who arrived at the victim’s home testified that he got there around 8:00

p.m. and the victim was upset and she muttered and cried. There was a cut above her

eye, and some stitches that were there had been pulled open. She had injuries that were

documented in photographs that were shown to the jury. Bits of hair were in the living

room, kitchen, hall and bedroom. A broken bowl was in the living room and a dowel was

on the couch near the bowl. There was what appeared to be blood in the bedroom.

       Defendant’s nephew testified that after the acquaintance who wanted the cigarette

left, defendant began beating the victim’s face with his fist in the living room. The

victim screamed, cried and told defendant to stop and the nephew also told him the same.

Defendant threw the bowl of noodles on the victim’s head as she lay on the floor,

breaking the bowl. He also punched the victim in the head. Defendant pulled the victim

by her hair down the hall into the bedroom, causing some of her hair to come out.

Defendant and the victim yelled at each other. The victim ran out the bedroom door,

defendant told her to get back inside, then she ran out the front door. Defendant chased

the victim and returned her to the bedroom, with his hands on her shoulders, while

kicking her in the leg. While they were in the bedroom, the nephew called the police as

directed to by the victim. When defendant found out that his nephew had called the

police, he ran out the back door of the home. The nephew called the police a second time


                                             7
after defendant had returned to the home, unsuccessfully tried to get in through the back

and front doors, and then entered through a window. Once inside, defendant saw his

nephew, who was again on the phone to the police, and he asked him why he “kept”

calling the police. This time, defendant left through the front door before the officers

returned to the home.

       Evidence was introduced that defendant had suffered a conviction in 2000 for

misdemeanor domestic battery and another in 2010, the latter involving his ex-wife.

       A woman and her husband were the only two witnesses to testify for the defense

other than defendant. She testified that she tried to put extensions in the victim’s hair on

either January 22nd or 23rd, but the victim pulled them out, leaving them on the floor,

because she wanted other extensions. This witness’s husband testified that he took the

victim to the hospital because she had an injury to her right eye, then he took defendant to

the hospital and they waited until the victim was released, then he returned both to their

home. He testified that the victim told him that she had fallen on the railroad tracks. He

claimed that the victim had offered him money for his testimony, but he admitted that he

did not know whether she wanted him to testify for or against defendant.

       Defendant testified that the man who came to the home on January 23 was not

welcome because he supplied the victim with drugs. After the man left, defendant told

the victim that a “ho was going to be a ho.” Defendant claimed that both he and the

victim had consumed drugs the day before and he had “smoked a loom” that day. The

victim called defendant a mother fucker, threw the bowl of noodles at him and he threw

the bowl back. She then pulled him onto the bowl and they struggled. He denied hitting


                                              8
her face with his fist. Defendant told the victim to go to the bedroom. While there, both

got physical, but he denied beating the victim on the bed, pulling her hair or hitting her

with the dowel. The victim ripped defendant’s shirt, so he changed it. Both yelled and

called the other names. He left the home when the police were called because he was on

parole. When he returned to the house, he went in through the window because no one

would answer the door. His nephew was on the phone to the police, so defendant left

again. He returned to the home later, eventually was reunited with the victim and spent

the night at the house and part of the next day until he was arrested there. He admitted

that he did not tell the police when they interviewed him the day he was arrested that the

victim had thrown the bowl at him3 or that the two had struggled with each other. He

denied engaging in the assaultive acts the victim and the nephew had testified he had

committed. He admitted grabbing the phone from his nephew the second time the latter

called the police and hanging it up. He admitted telling the victim during one of their

recorded jail calls that his nephew should be moved and that if there were no witnesses,

there would be no case against him and it would be dismissed. During one of the calls,

the victim apologized to defendant for allowing the acquaintance who had wanted the

cigarette into the home, saying it was disrespectful to defendant. Defendant admitted that

he had gotten mad when the victim let this man in the house and had called the victim a

bitch and a “ho.” He also admitted telling her during a call to say that she had gotten her

injuries on the railroad tracks and that she should forgive and forget. He admitted that in

       3   During the People’s rebuttal case, the police officer who arrested defendant
testified that defendant did not tell him that the victim had thrown a bowl at him.


                                             9
the recorded calls that were introduced into evidence, he had not confronted the victim

about throwing the bowl at him. He also admitted that during the calls he had said “no

witnesses, no case” and that they had discussed getting rid of his nephew. Defendant was

impeached with prior convictions for domestic violence.

       Other facts will be disclosed as they are relevant to the issues discussed.

                                 ISSUES AND DISCUSSION

1. Defendant’s Requests for Substitution of Counsel

       Trial counsel for defendant began representing defendant on February 1, 2011. On

May 13, 2011, both sides declared that they were ready for trial. On May 16, 2011, the

first day of trial, motions in limine were heard and voir dire was conducted. On the

second day of trial, May 17, 2011, defendant requested a Marsden4 hearing, during which

he complained that his attorney: 1) spoke to him for the first time the previous day, 2) did

not want defendant to testify, 3) did not tell defendant that defendant’s ex-wife was going

to testify against him, 4) had not given defendant “paperwork” concerning trial witnesses,

5) never “took” defendant’s statement about the offense, 6) failed to bring in men from

Las Vegas who had allegedly been lied to by the victim, and 7) had not filed any motions

of which defendant was aware.5 Defendant also asserted that he, defendant, was not

“ready for trial.” Defendant explained that he wanted motions concerning his ex-wife’s

violence towards him filed. Defendant said he would “have to go pro per.” Defendant

       4   People v. Marsden (1970) 2 Cal.3d.118.

       5 However, the previous day, counsel had filed a response to the People’s written
motion to admit evidence under Evidence Code section 1109.


                                             10
asserted that when he told the defense investigator that it was not the victim who called

911 to report the offense, but his nephew, the investigator got mad and walked out on

him. He also accused the defense investigator of offering the victim $20,000 to testify

against him. He claimed that both she and defense counsel had stopped talking to him.

Defendant disclosed that he had letters from the victim in which the latter made

statements about the offense and apologized for making allegations against defendant.

       Defense counsel responded that his investigator had spoken with defendant

“almost every time” defendant had appeared in court and had updated defendant each

time.6 As to the men in Las Vegas, counsel reported that one was in prison and the other

was dead. He asserted that his investigator had conducted interviews of the witnesses the

defense intended to call at trial and had had several interviews with the “supposed victims

in this case.”7 He said that the defense had reports that defendant’s ex-wife claimed that

defendant had assaulted her and that she had threatened defendant with domestic violence

and was on probation for that. He reported that three people had claimed to be victimized

by either the victim or defendant’s ex-wife and all three were scheduled to testify for the

defense. However, if the trial court admitted evidence of the victim’s past acts of

violence, the court would allow in evidence of defendants’ past acts of violence. Counsel

had advised defendant not to testify, but he admitted that he could not stop defendant


       6 While represented by trial counsel, defendant was in court, up to that time, on
12 separate occasions.

       7  We assume he was including defendant’s ex-wife, as there was only one victim
in the case.


                                            11
from doing so. He reported that neither he nor his investigator knew until the day before

that defendant had letters from the victim, he had not yet seen them and defendant had

admitted to him failing to tell the defense investigator about them.

       The trial court explained to defendant that evidence could be admitted about

defendant’s past acts that bear on his veracity should he testify, including crimes

involving theft and violence. The court also explained that the victim and defendant’s

ex-wife could be impeached with their prior bad acts without defendant being impeached

with his if he did not testify. However, if the defense presented evidence about prior acts

by the victim and/or the ex-wife to show that they were violent, then evidence of

defendant’s prior acts of violence could come in.

       When defendant said he wanted two particular witnesses to testify to past violent

acts by the ex-wife, defense counsel responded that he wanted to keep the evidence

concerning the ex-wife at a minimum.

       Defendant repeated that he was not ready for trial, that he wanted to fire his

attorney and go “pro per” so he “could look these things up.” Defendant said if the court

would grant a two month continuance, he would want his attorney to talk to him and

bring him the statements of all the witnesses. After defendant admitted that he had not

shown the letters from the victim to his attorney until the day before (despite the fact that

he had been receiving them “practically every day” since the day he was arrested),

counsel said, “I have difficulties continuing to represent [defendant].” Counsel advised

the trial court, if it was inclined to grant defendant’s Faretta motion, to warn defendant

that he was going up against a good attorney, i.e., the prosecutor. Defendant accused his


                                             12
attorney of improper representation based on the defense investigator’s and his attorney’s

representations that he probably would not be convicted of a felony and a prior defense

investigator telling him that, given the victim’s “history,” the case probably would not go

to trial but if the prosecutor wanted to press it, “let her.” The trial court pointed out to

defendant that the investigator and his attorney had the right to share with him their

evaluation of the case.

       The trial court denied defendant’s request to relieve counsel, saying that counsel

had been providing defendant with adequate representation, there was no irreconcilable

conflict between them and “no substantial impairment” of the attorney/client relationship.

The court offered that if, based on the letters from the victim, counsel wanted a

continuance, the court would grant it, however, what witnesses to call and how to cross-

examine witnesses and other tactical decisions were matters for counsel to make. The

court then denied defendant’s request to represent himself.

       Later that day, in response to the trial court’s inquiry whether defendant wanted to

renew his request to represent himself, defendant said he did, adding that he was not

ready for trial—that he had “things to study.” The trial court pointed out that if it granted

defendant self-representation, there would be no continuance—that he could “study

things” as trial progressed. The court gave defendant the Faretta form, but defendant

refused to sign it. The court warned defendant of the pitfalls of self-representation,

adding that if defendant continued to be represented by counsel, it would be by his

current attorney. Defendant responded that he was not capable of representing himself.

The trial court denied his Faretta motion.


                                              13
       Two days later, defendant again requested to represent himself, accusing the

defense investigator of telling him that he was going to be convicted of a felony.

Defendant asserted that he refused to go to trial “with these people.” Defendant then

clarified that the defense investigator had told him that if he contacted his ex-wife, he was

guilty of a felony. At this point, a second Marsden hearing took place.

       At that hearing, the defense investigator told the court that defendant had told her

that he had written a letter the night before to his ex-wife and the investigator told

defendant that that could be viewed as an attempt by him to intimidate a witness, which

was a felony, and he should not do this. The trial court echoed these sentiments. When

defendant interrupted the trial court, the latter told defendant to “[s]hut up” and defense

counsel echoed that sentiment. Defendant then accused either the trial court, counsel or

both of “railroading” him through trial. He added that he was on “psyche meds.” The

trial court asked defendant if he wanted to represent himself. Defendant repeated that he

was going to get “railroaded.” He added that he needed a new attorney. The trial court

denied his motion to relieve counsel “[f]or the same reasons . . . expressed” when the first

such motion was denied and his motion to represent himself was denied as untimely. The

court then apologized to defendant for telling him to shut up.

       Over the rest of that day and the first part of the next court day, the People

presented most of their case in chief and the parties discussed jury instructions. After the

noon recess the second day, defendant said that he had asked to talk to his attorney, but

the latter had told defendant to eat his lunch. Defendant said that his attorney had not

seen him or “counseled him on anything.” Defendant repeated that he was rushed into


                                             14
trial, that defense counsel “did not file anything for witnesses for me” and he was being

railroaded. Defendant admitted that the defense investigator had talked to him the

previous day (which was a Sunday). Defense counsel said the conversation had lasted

two hours—defendant said it lasted 15 minutes and he was told nothing other than that he

was going to testify and they “do things to get an appeal.” Defendant told counsel that he

was fired and that he was getting railroaded. He appeared to accuse the prosecutor of

coercing his nephew, who testified against him. The court said defendant had not given it

a reason to excuse counsel, who would continue to represent defendant. Defendant then

said that he and his attorney had a disagreement. When defendant asserted that neither

his attorney nor the defense investigator had listened to his version of the crime, the court

held a third Marsden hearing.

       At the hearing, defense counsel denied defendant’s accusation that he did not

know defendant’s side of the story. Counsel asserted that defendant had told him things

that, in counsel’s opinion, made it impossible for defendant to testify. Counsel said he

had sent his investigator to the jail the day before to discuss with defendant what

defendant planned to say on the stand and had discussed this information with his

investigator after her meeting with defendant and that morning. Counsel said that he had

advised defendant that nothing defendant planned to say on the stand would help

defendant. Counsel reiterated that he could not stop defendant from testifying.

Defendant launched into another complaint about not having a “motion hearing to see the

evidence that’s been up against me” and not having any paperwork or knowing any

witness’s statements. Defense counsel repeated that during almost each of defendant’s


                                             15
court appearances, defendant had met with him or the defense investigator and any

reports were read to defendant. Defendant interrupted counsel, saying, “ . . . [Y]ou’re

fired! You’re fired! [¶] I want to represent myself. You can’t make me keep him. It’s

my right to fire him.” The trial court reminded defendant that they were in the middle of

a trial and denied his motion for self-representation as untimely. Defendant demanded

that the court force defense counsel to turn over to it the written report of defendant’s

version of the crime and the court declined, saying counsel did not need to have a written

report, as long as he knew defendant’s version of the events. Defendant responded that

he had not told his attorney anything. The trial court then denied defendant’s request to

discharge counsel and to represent himself, the latter because it was untimely. Soon

thereafter, the People rested their case-in-chief.

       The next day, the defense presented its case and the prosecution presented its

rebuttal. The following day, arguments were presented, the jury was instructed and the

jury deliberated and returned a verdict of guilty. During the next court day, the trial court

found true all the allegations concerning defendant’s prior convictions.

       About a month later, defendant made his fourth Marsden motion. Defendant said

his attorney did not cross-examine one of the witnesses against him. He asserted that

counsel did not call a particular witness who would have testified to the afore-mentioned

witness’s “psychological problem and his ability to recount things.” He added that this

latter witness would also testify that she was either threatening the victim “not to come to

court on [defendant]” or was threatened by the victim. He also said he wanted the

psychologist of the first mentioned witness called. He criticized counsel for not making


                                              16
an opening statement. He said counsel did not question a police officer about the

difference between his testimony about moving a stick the victim said defendant had used

to beat her from one room to another and what the officer had said about it in his report.

He also accused the same officer of “coercing” the victim by asking her at the scene of

the crime leading questions about what had happened, implying that counsel should have

asked the officer about this. He said that defense counsel did not ask some questions

defendant wanted asked, but defendant did not specify what they were. He asserted that

the way counsel questioned him did not allow him to get his version of events out. He

claimed that after he complimented counsel on the way the latter had cross-examined the

victim, counsel told the victim, “Fuck you.” He said that counsel was aware that the

victim was threatening defense witnesses to not come to court, but he did not bring that to

the jury’s attention. He also accused the prosecutor of offering the victim $6,000 for

convicting him, about which counsel should have questioned the victim. He felt his

attorney should have brought a motion to exclude pictures of the victim’s wounds.

Defendant asserted that the wounds were self-inflicted. He said counsel should have

cross-examined the victim about her history of violence and drug abuse. He reasserted

that counsel and the defense investigator had told him that they did not believe he would

be convicted of a felony. Finally, he said that his attorney told the prosecutor that

defendant was guilty, but was pretending to be innocent.

       Defendant’s attorney explained that he did not cross-examine a particular

prosecution witness because he feared more damaging information to defendant coming

in as a result of it. He did not give an opening statement at the beginning of trial because


                                             17
the victim had given several different accounts of the crime and counsel had no idea what

she was going to testify to on the stand. Counsel did not give an opening statement at the

beginning of the defense case-in-chief because he did not know to what defendant was

going to testify. Concerning cross-examining the officer about the movement of the

stick, counsel said that the victim had moved the stick and he did not recall if the stick

was placed where it was when it was photographed, or the victim placed it there or the

officer. Moreover, it was not an important point. Counsel said he had no information,

other than defendant’s accusation, that the officer had coerced the victim. Counsel

admitted that defendant wrote him notes during trial, which counsel read, but he did not

recall that defendant asked him to ask particular questions. As to counsel’s redirect

examination of defendant following his cross-examination by the prosecutor, counsel said

that, in his opinion, defendant performed very poorly during cross-examination and he

did not want to create more opportunities for the prosecutor to undermine defendant’s

testimony. Further, although defendant wanted counsel to bring out the victim’s history

of violence, he made a tactical decision to avoid it so defendant’s history of violence

would not be brought out. Counsel admitted telling defendant “Fuck you” when

defendant complimented him on his cross-examination of the victim. As to the $6,000

that was supposedly offered to the victim for her testimony against defendant, counsel

said that there were discussions about compensating the victim for her medical bills by

the Victim’s Compensation Board, and the victim commented in letters to defendant that

this money would not make her not love him and the issue was covered during her

testimony. Counsel denied failing to cross-examine the victim about her drug use—he


                                             18
asserted that there was plenty of evidence about the fact that she was a “crack head,” a

matter with which the trial judge agreed. Counsel said he was careful to cross-examine

her about her history of making false reports, but not about her history of violence, as it

would open the door to evidence of defendant’s history of violence coming in. Counsel

stated that contrary to defendant’s representation to the trial court, one of the defense

witnesses had testified that he had been threatened by the victim. As to another defense

witness, she did not tell the defense that she had been threatened by the victim until she

had concluded her testimony. However, she performed so poorly on the witness stand

that counsel did not believe it would have helped defendant to bring her back and

question her about it. Counsel did not recall making a statement to the prosecutor that

defendant was guilty but pretended to be innocent. He explained that although he told

defendant that defendant might end up with a misdemeanor conviction because of the two

assaults defendant perpetrated on the victim the day of the crime, defendant had been

charged only for the later assault, during which no injuries occurred. Counsel listed the

legal matters he discussed with defendant and explained his trial strategy. As to

communication between them, counsel observed that defendant was difficult, does not

listen well and hears things the way he wants to hear them. Counsel added, “[Defendant]

is not receptive to hearing opinions contrary to his own. I have known [him] from other

cases [in which he represented defendant] for probably 15 years. Unfortunately for

[defendant] this is the first [case] we did not get through with at least some success.”

Counsel reasserted that defendant had been given updates every time he made an

appearance before trial and had been told that it could not be guessed how the jury


                                             19
reacted to the victim’s testimony. Additionally, defendant was told that his nephew

posed a large problem to the defense, and the letters and phone calls concerning his

nephew “hurt [defendant] probably more than his own testimony did.” Counsel said he

moved the pretrial process along so as to avoid the prosecutor charging defendant with

two counts of violating section 273, rather than one, and this was explained to defendant

by either counsel or the defense investigator. As to the letters between defendant and the

victim, counsel said he believed that they could be used as evidence of a conspiracy

between the two and that defendant was attempting to keep his nephew from testifying,

and the victim was confirming her desire to help defendant do that. In his opinion, the

letters did not contain evidence that the victim had lied to the police about the events of

January 23, 2011. Counsel said that nothing defendant had said about him impacted his

ability to represent defendant.

       The trial court concluded that based on what it had observed during trial and what

it had been told by defendant and counsel, defendant had not made a colorable claim that

the latter was ineffective. The court added that even if it did make this finding, it would

exercise its discretion not to appoint new counsel to bring a motion for a new trial based

on ineffectiveness of trial counsel. Defendant’s motion for a new trial on other grounds,

his Romero motion and sentencing were to proceed with defense counsel representing

defendant.8


       8Counsel ultimately filed a motion for a new trial and a sentencing memorandum,
which contained a request that either or both of his strike priors be dismissed, both of
which were denied. Defense counsel represented defendant at sentencing.


                                             20
       One month later, on the day set for sentencing, defendant filed a request to

represent himself. The trial court reviewed defendant’s Faretta waiver form. The court

told defendant that unlike his two prior requests to represent himself, which the court

denied as untimely, at this point, they were not faced with the time pressures of trial

coming up soon, so the court was more inclined to grant defendant’s request. The court

explained to defendant the dangers of self-representation. Defendant asserted that

something(s) the defense investigator said to him forced him to ask to represent himself.

The trial court cleared the courtroom and defendant asserted that, despite his attorney’s

representation to the court that the one of the witnesses defendant wanted to testify about

what the victim had done to him was dead and the other was in prison, the defense

investigator had told him that she had located both of them. Defendant then accused the

investigator of lying to him and arguing with him and said he wanted a new attorney and

if the court would not appoint one, he wanted to represent himself because “these people

are not for me.” He again asserted that he was being railroaded and that he was deprived

of the opportunity to call witnesses.

       At a continuation of this hearing, which became defendant’s fifth Marsden

hearing, defendant asserted that the prosecutor had exculpatory evidence that she did not

turn over to the defense. Defendant gave the court a letter he said the victim had written

to him five days after his arrest, in January 2011, in which the victim asserted that

someone had told her not to come to court. Defendant said that in her letters to him, the

victim confessed that she had abused him physically, that she had accused him because

she was angry and that his nephew had made up the whole story of defendant assaulting


                                             21
her. He accused his attorney of failing to adequately investigate his nephew to uncover

the fact that the latter was a liar and cross-examine him about it. Defendant said the

prosecutor should not have been able to use his prior conviction of violating section 243

as Evidence Code section 1109 evidence. Defendant repeated that his attorney did not

communicate with him. He asserted that it was his belief that he should have been able to

make decisions about what witnesses to call and how to question witnesses. Defendant

listed the witnesses he wanted called who were not. He said that his attorney questioned

him in a way that hurt him more than it helped him. He complained that he was not

allowed to ask witnesses questions.

       Defense counsel identified the evidence that defendant claimed was missing that

was exculpatory as transcripts of interviews. Counsel repeated that of the letters he had

from the victim, none contain an admission by her that she had lied to the police. He said

that a letter discussing defendant’s nephew being told what to say had been placed into

evidence. He said that the only things redacted from the phone calls were references to

defendant’s prior record. He repeated that he did not bring in evidence the letters the

victim had written defendant about her violence towards him because he did not want

evidence of defendant’s past violent acts being introduced and the victim had admitted,

while testifying, to engaging in bad acts in Las Vegas. Counsel again explained why he

did not want to investigate or question defendant’s nephew about his background.

Counsel denied that either Las Vegas potential witness could be located. He also said

that the victim had already documented her own violent history. As to defendant’s

assertion that the defense had not communicated with him, counsel asserted that he had


                                            22
had conversations with defendant at jail and the defense investigator had discussed the

letters and defendant’s wish to testify with defendant during visits at the jail.

Additionally, he reasserted that each time defendant had appeared in court pretrial, either

he or one of the two defense investigators had spoken to defendant. The second defense

investigator had had 13 contacts with defendant. Counsel also said that he talked to

defendant every day during trial. He explained why he had examined defendant the way

he did. Counsel concluded that there was enough evidence, in his opinion, of a

breakdown between him and defendant such that defendant should file a motion for a

new trial on the basis of ineffective assistance of counsel with the assistance of new

counsel or while representing himself.

       The court concluded that defendant’s complaint that counsel was ineffective was

not “legally sustainable” and it denied defendant’s motion to have new counsel

appointed. The court pointed out to defendant, as he argued with it, that the decisions as

to what questions to ask on cross-examination or whether to conduct cross-examination

were tactical ones for counsel to make. The court also concluded that defense counsel

had given an “informed reason” for not calling certain witnesses. Defendant withdrew

his request to represent himself.

       In claiming that the trial court erred in failing to grant defendant’s “request” for

appointment of new counsel, defendant provides a much more truncated summary of his

five Marsden motions than we have set forth above and asserts, “the trial court abused its

discretion in denying at least one of [defendant’s] Marsden motions.” From this

statement, defendant jumps to the next, as follows, “[Defendant’s] less than stellar


                                              23
testimony at trial supported his claim that defense counsel did not prepare him to testify,

and . . . never spoke with him, evidencing a lack of communication.” Unfortunately,

defendant’s less than stellar performance on the stand could be more an indication that

counsel was correct in his assessment of defendant as a person who was difficult, did not

listen well, heard things the way he wanted to hear them, and was not receptive to

opinions that were contrary to his own, and his opinion that defendant should not have

testified in the first place, rather than a sign that the two did not communicate. This

description, which is born out by the record, also explains why both the trial court and

defense counsel at one point, lost patience with defendant, who was interrupting the

court, and told him to shut up, why defense counsel told defendant to eat his lunch and

why counsel’s admitted response to defendant’s compliment about counsel’s cross-

examination of the victim was a “fuck you.”9 However, contrary to defendant’s current

assertion, they did not show that the relationship between the two had broken down. As

stated above, at the time these statements had been made, counsel maintained that he

could still represent defendant effectively and bore no ill will towards defendant.

Moreover, defendant’s claim that “counsel never spoke to him” was contradicted both by

defendant’s own statements and those of counsel, as set forth above, which the trial court

obviously believed, as it was entitled to do. (People v. Smith (1993) 6 Cal.4th 684, 696.)

       9  We note that even though defendant was present when the trial court instructed
the victim not to mention any potential punishment defendant faced as a third striker
defendant managed, on two different occasions during cross-examination, and not in
response to the questions being asked by the prosecutor, that he was facing a life term.
We also note that defendant interrupted his attorney’s argument to the jury, announcing,
“Ladies and gentlemen of the jury, I’m about to be railroaded.”


                                             24
Defendant here cherry picking certain seemingly inflammatory statements made by trial

counsel and defendant during the lengthy proceedings involving these five Marsden

motions is not particularly helpful. For example, counsel’s statement during the hearing

on the first motion that he was having difficulties continuing to represent defendant was

probably born out of his frustration with the fact that defendant had not told him about

the letters he had been receiving from the victim almost daily since his arrest. The fact

that counsel told the court, after the verdict, that he could not author a motion for a new

trial on the basis of incompetency of trial counsel was not, as defendant now appears to

suggest, an indication of a breakdown in the relationship between the two, but a statement

of simple and undisputed fact—defense counsel had a conflict of interest in claiming that

he, himself, had incompetently represented defendant at trial and because of this,

defendant should be given a new trial. Finally, as the trial court pointed out, defense

counsel’s opinion, during the hearing on the fifth Marsden motion, that there was enough

evidence of a breakdown in the relationship between the two to justify the appointment of

new counsel, was not for counsel, but for the trial court, to make. (People v. Smith

(2003) 30 Cal.4th 581, 606; People v. Michaels (2002) 28 Cal.4th 486, 522.)

Additionally, defendant completely fails to show that the failure to appoint new counsel

substantially impaired defendant’s right to a fair trial, as is required. (People v. Webster

(1991) 54 Cal.3d 411, 435.)




                                             25
2. Admission of Evidence Code Section 1109 Evidence

       Before trial began, the People gave notice of their intent to introduce into

evidence, pursuant to Evidence Code section 1109,10 the fact that defendant engaged in

conduct that resulted in his being convicted of a misdemeanor violation of section 245,

subdivision (a)(1), among other acts of domestic violence in 2010. At a hearing on the

admissibility of this evidence, the People added a second prior conviction—in 2000—for

a misdemeanor violation of section 243, subdivision (e)(1). As to the latter, the People

argued that defendant had been “primarily” in custody since committing it, therefore, the

fact that it was more than 10 years old should not justify excluding evidence of it. The

trial court agreed. The court noted that defendant had pled guilty to it. The court also

concluded that introducing evidence of the conviction would not unduly consume time or

confuse the jury. The court noted that the only similarity between it and the current

offense was that both involved domestic violence against a spouse or cohabitant. The

court concluded that the probative value of the evidence outweighed its prejudicial

impact. The court found that evidence of the conviction was admissible.

       As to the 2010 incident, the People represented to the trial court that defendant and

his soon-to-be ex-wife (hereinafter, “ex-wife”) had been living together when defendant

called her and asked for a ride. Because defendant had been drinking the ex-wife refused

to give him a ride. Defendant entered the home and, while the ex-wife was asleep on the

       10 That section provides in pertinent part, “(a)(1) . . . [I]n a criminal action in
which the defendant is accused of an offense involving domestic violence, evidence of
defendant’s commission of other domestic violence is not made inadmissible by Section
1101 if the evidence is not inadmissible pursuant to Section 352.”


                                             26
couch, jumped on top of her and scratched her face, asking her how she liked it. They

then engaged in mutual combat and the police were called. The prosecutor represented to

the court that in the instant case, defendant beat the victim, his live-in girlfriend, with his

fists, hit her legs with a stick, smashed a bowl of noodles on her head, drug her down the

hall to their bedroom by her hair and continued to beat her with his fists in the bedroom.

Defendant’s nephew called the police and they came out, but defendant had already left.

The police took a report and left, then defendant returned and tried to sneak into the

house, his nephew called the police again, defendant took the phone from his nephew and

hung it up, then left and the police arrived thereafter.

       The court concluded that the 2010 incident was substantially similar to the charged

incident and evidence of the former would not confuse the jury or consume undue time.

The court concluded that the probative value of the evidence outweighed its prejudicial

effect. The court ruled it would allow the ex-wife to testify about the incident11 and the

prosecutor to introduce evidence of defendant’s conviction of the offense resulting from

it.

       During the People’s case-in-chief, a deputy district attorney (not the prosecutor)

testified for the prosecution that defendant had been charged in 2000 with misdemeanor

“domestic battery” or “battery on a person in a dating relationship,” to which defendant

had pled guilty. He also testified that in 2010, defendant had been charged with felony

corporal injury to a spouse (i.e., defendant’s ex-wife), and defendant had pled guilty to a


       11   She ultimately did not.


                                              27
misdemeanor assault with a deadly weapon or by means of force likely to produce great

bodily injury, as part of a plea bargain. Copies of documents supporting this testimony

were introduced as exhibits. Because defendant chose to testify, he was also impeached

with both of these prior convictions, along with a number of others.

       There was evidence of yet another incident of domestic violence introduced at

trial. Specifically, at the beginning of her testimony, the victim had said that on the

morning of January 23, 2011,12 she and defendant had an argument because a person who

ultimately testified at trial as a defense witness was coming to her home to finish doing

her hair, and defendant had gotten mad and hurt the victim. Defense counsel’s string of

relevancy and other objections to this line of testimony was largely overruled. The

prosecutor then asked for a sidebar, during which she objected to defense counsel

interjecting an object to every question she asked about this incident. Counsel said he

was not opposed to having a continuing objection to the entire line of questioning. The

trial court said the evidence was relevant because “it’s all connected.” The victim went

on to testify that defendant kicked her out the back door, she went to the front and cussed

defendant out, came in the house to get her stuff and he socked her in her left eye.

Thereafter, defendant got her a towel because she was bleeding, “they” called a friend,

who took both of them to the hospital, where her wound was stitched, and the friend took

them both back home. During the recorded interview of the victim which was played for

the jury, she said that she had gone to the hospital the morning of January 23 and had


       12   The charged incident happened that afternoon.


                                             28
gotten stitches. She also said that when she had gotten hit in the morning, she had told

people at the hospital that she had fallen on the railroad tracks. During his testimony,

defendant denied hitting the victim earlier on January 23. During argument to the jury,

the prosecutor said this incident, as well as the 2000 conviction and the 2010 conviction,

could be used by the jury to determine whether defendant committed the charged offense

during the afternoon of January 23.13 Defendant did not object to this argument.


       13    Because the prosecutor specifically told the jury during argument that the
violation of section 273.5, subdivision (a) referenced in the instruction on the Evidence
Code 1109 evidence was the January 23 morning incident, we reject the People’s
assertion that evidence of that incident was introduced only under Evidence Code section
1101, subdivision (b) to negate any possible mistake of fact or accident. Moreover, the
jury instruction on the Evidence Code section 1109 evidence references evidence of a
violation of section 273.5 separate from the 2000 conviction and the 2010 conviction and
the instruction on Evidence Code section 1101 evidence references a violation of section
273.5. Since these two instructions refer to evidence of an offense other than the charged
offense, logic dictated that they referred to the morning incident.
         While we realize that evidence of the morning incident was not part of the pretrial
discussion of Evidence Code section 1109 evidence, and when defense counsel objected
to it at trial, he failed to assert that it should not be admitted under Evidence Code section
1109, we will side step whatever waiver occurred as a result of this and address
defendant’s objections to admission of evidence concerning it on the merits of his
Evidence Code section 1109 argument. We do this because we also realize that the
People failed to give defendant notice pretrial that they planned to use this evidence for
purposes of Evidence Code section 1109 as that section requires. (Evid. Code, § 1109,
subd. (b).)
         However, we will not address whatever objections defendant might have to
admission of this evidence under Evidence Code section 1101 because defendant did not
specifically address use of this evidence to rebut mistake of fact or accident in his
opening or reply briefs, although he asserted, without further comment as to this
application, that the factors relevant to admission under Evidence Code section 1109
were also relevant to admission under Evidence Code section 1101. We will hold
defendant to the waiver he created by not mentioning Evidence Code section 1101 when
he objected at trial about the evidence concerning the morning incident. Contrary to the
assertion in defendant’s reply brief, summarily referencing Evidence Code section 1101
in his opening brief does not somehow “undo” this waiver.


                                             29
       Although conceding that several courts of appeal, including this one (People v.

Hoover (2000) 77 Cal.App.4th 1020, 1027, 1028 (Hoover)),14 have held that using

evidence of prior acts of domestic violence to prove a currently charged act of domestic

violence is not a violation of due process (People v. Williams (2008) 159 Cal.App.4th

141, 147; People v. Cabrera (2007) 152 Cal.App.4th 695, 703, 704; People v. Rucker

(2005) 126 Cal.App.4th 1107, 1120; People v. Price (2004) 120 Cal.App.4th 224, 240;

People v. Escobar (2000) 82 Cal.App.4th 1085, 1096; People v. Jennings (2000) 81

Cal.App.4th 1301, 1309, 1310; People v. James (2000) 81 Cal.App.4th 1343, 1353;

People v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Johnson (2000) 77

Cal.App.4th 410, 417-420), defendant disagrees. In so doing, he advances a premise that

ignores what actually occurred in this case. He asserts, “[c]onvicting [defendant] of a

crime based largely on evidence that he had committed some other crimes and was a

person of general bad character is a violation of . . . due process . . . .” However,

defendant was not convicted “largely” on evidence of these prior acts—he was “largely”

convicted on the testimony of the victim and his nephew. Additionally, there was no

evidence introduced that defendant was a person of general bad character. There was

evidence that the victim was, however, that did not appear to dissuade the jury from

believing her. Defendant offers no persuasive argument for this court to depart from the

position it took 13 years ago in Hoover.




       14   Defendant failed to cite Hoover. We do not.


                                             30
       Next, defendant asserts that the trial court abused its discretion in concluding that

the probative value of this evidence outweighed its prejudicial effect. Defendant begins

with the court’s conclusion that evidence of the 2000 misdemeanor conviction was

admissible in the interests of justice,15 because defendant had not lead a legally blameless

life since suffering that conviction. Unfortunately for defendant, he completely ignores

the trial court’s justification for its finding and asserts only that because evidence of the

2010 conviction and the incident the morning of January 23 was available for use by the

prosecution, introducing evidence of the 2000 conviction was “overkill.” However, the

trial court’s finding is supported by the record, and, therefore, we cannot conclude that

the court abused its discretion in determining that the evidence should be admitted in the

interest of justice. Moreover, defendant did not make this argument below, and,

therefore, waived it. (Evid. Code, § 354.)

       In what we are assuming is an argument that the trial court abused its discretion in

finding that evidence of all three incidents was more probative than prejudicial, defendant

calls our attention to four factors he asserts the trial court should have considered, i.e., the

inflammatory nature of the uncharged conduct, the possibility of confusion of issues, the

remoteness in time of the uncharged offense and the amount of time involved in

introducing and refuting evidence of the uncharged act. (See People v. Branch (2001) 91

Cal.App.4th 274, 282.) However, he applies none but one of these factors in any but a


       15  Evidence Code section 1109, subdivision (e) provides that if the prior act
occurred more than 10 years before the charged act, evidence of it is inadmissible unless
the trial court finds that admission is in the interests of justice.


                                              31
conclusory fashion to this case, and asserts only, again, in conclusory fashion, that the

probative value of this evidence did not outweigh its prejudicial impact. This is

insufficient. As to the one factor he does concretely address, confusion between the

incident of the morning of January 23 and the charged incident that afternoon, he asserts

that, somehow, the trial court’s failure to give a unanimity instruction left the jury

confused about whether the charged offense was the morning or the afternoon incident.

However, trial counsel made it abundantly clear in their argument to the jury that the

charged offense was the second incident and the morning incident was one of the “other

acts” the jury could consider in determining if defendant committed the charged act.16

Moreover, if the “charged act” was the morning incident, there would have been little

cause for the defense to challenge the testimony of defendant’s nephew as it did, or for

the prosecutor, in his argument to the jury, to elevate the nephew to the position of being

the only person whose testimony could be wholly believed, as, according to the victim,

the nephew did not even witness it and he certainly did not testify about it. Further,

another instruction given the jury as to the morning incident makes clear that it did not

constitute the charged act.

       Defendant then departs from the four factors he lists, asserting that the prior act

must be sufficiently similar to make the former relevant. After discussing at length a case

in which there was little similarity between the two, defendant asserts, again, in summary




       16   The prosecutor’s opening statement is not part of the record before this court.


                                              32
fashion, without further analysis, “Same [sic] was true in [defendant’s] trial.” Again, this

is insufficient.

       Next, defendant makes an assertion that is belied by the record, i.e., that there was

such a “paucity of evidence . . . on the charged offenses [sic]” that admission of evidence

of these other acts was an abuse of discretion. We disagree. There was more than

sufficient evidence to support the verdict.

       Finally, defendant asserts that introduction of this evidence put him in the unfair

position of having to defend against the prior incidents. Of course, there’s not much for a

defendant to do where, as here, he has pled guilty in relation to the two prior convictions.

Moreover, that “burden,” however onerous it might be, has not persuaded this court or

many others to conclude that Evidence Code section1109 is unconstitutional.

       Finally, defendant criticizes the trial court for failing to give a cautionary

instruction that the jury may not consider evidence of these three incidents as proof of

defendant’s guilt. First, such an instruction would completely undermine Evidence Code

section 1109, which specifically provides that such evidence may be so considered.

Second, the jury was instructed that it could, but was not required to conclude that

defendant was disposed or inclined to commit domestic violence and was likely to

commit and did commit the charged offense if it decided that defendant committed the

prior acts. The jury was also cautioned that concluding that defendant committed the

other acts was only one factor to be considered along with all the other evidence and was

not sufficient, by itself, to prove defendant’s guilt. Defendant cites no authority holding

that any further cautionary instruction should have been given.


                                              33
3. Failure to Dismiss Defendant’s Strike Priors

       Defendant’s criminal history began when he was 19 and includes, besides the

misdemeanor domestic violence convictions already mentioned, theft, drug possession,

evading, battery, driving under the influence, robbery, shooting at an inhabited dwelling

and assaults. His probation had been revoked in the past and he was on parole when he

committed this offense.

       The trial court denied defendant’s request to dismiss both or one of his strike

priors citing his use of a weapon on the victim, which resulted in stitches and a wound to

her head, “serious injur[ies, . . . that c]ould have been much more serious[,]” and his

history of crimes, especially crimes of violence. Defendant asserts that the trial court’s

ruling was an abuse of discretion.

       In asserting that the trial court made a ruling that was so irrational or arbitrary that

no reasonable person could disagree with it (People v. Carmony (2004) 33 Cal.4th 367,

376, 377), defendant misconstrues the court’s words. After listening to both defendant

and the victim, the court said that it had compassion for both, but it could not be guided

solely by that compassion without consideration for the community. Contrary to

defendant’s assertion, the trial court did not say that the law would not allow it to

effectuate justice for defendant and exercise compassion, just that those could not be the

only considerations the court relied on in making its decision. We reject defendant’s

assertion that his age (37 at the time of sentencing) and the victim’s desire that he not

spend 29 years to life in prison, compel a conclusion that the court’s ruling was so

arbitrary and capricious that no reasonable person could disagree with it.


                                              34
                                     DISPOSITION

       The trial court is directed to amend the first page of the Abstract of Judgment to

show that defendant received a term of 25 years to life for violating section 273.5,

subdivision (a), and not life, as the abstract currently states. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                   RAMIREZ
                                                                                              P. J.


We concur:

KING
                            J.

CODRINGTON
                            J.




                                               35
