Filed 4/29/13 P. v. Martinez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                            B240574

                          Plaintiff and Respondent,                    (Los Angeles County
                                                                        Super. Ct. No. MA050528)
                   v.

CHRISTOPHER J. MARTINEZ,

                          Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Hayden Zacky, Judge. Affirmed.

         Alan Macina, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey
and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.


                                                  **********
       Defendant and appellant Christopher J. Martinez was convicted by jury of three
counts of having sex with a child under the age of 10 (Pen. Code, § 288.7, subd. (a)) and
one count of committing a lewd act on a child under the age of 14 (Pen. Code, § 288,
subd. (a)). Defendant was sentenced to an aggregate state prison term of 83 years to
life. Defendant contends on appeal the trial court committed reversible error by
refusing his request, on the morning of the sentencing hearing, to discharge his retained
counsel and have substitute counsel appointed. Defendant also argues he was denied
the effective assistance of counsel because his attorney failed to move to sever the trial
of the charges involving the two separate victims. We find no error and affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In 2009, defendant was in a relationship with Sylvia M. (mother) and had
fathered two of her children, a son and a daughter (J.M.). Mother had another daughter
(A.G.) from a previous relationship.
       In the summer of 2010, J.M., who was 11 years old at that time, was staying with
her godmother. During this visit, J.M. told her godmother that defendant (her father)
had sexually abused her. The godmother and her husband took J.M. to the sheriff‟s
department to report the abuse. J.M. was interviewed by Detective Eliott Uribe, a then-
19-year veteran of the department.
       During the interview, J.M. said defendant first forced himself on her in 2009
when she was nine years old. Defendant would have sex with J.M. and then tell her to
shower after he was done. It happened multiple times, including at least two or three
times when he picked her up from school and took her to a local motel.
       Detective Uribe also interviewed J.M.‟s older half-sister, A.G., as part of his
investigation. A.G. disclosed to him that, in 2002 when she was about nine years old,
defendant (her stepfather) had touched her vagina once, and several months later,
unzipped his pants and tried to put his penis in her face or into her mouth, but she kept
turning her head away and he eventually stopped.
       Defendant was charged by information with three counts (1, 2 and 4) of having
sex with a child under the age of 10 (victim J.M.) in violation of Penal Code section


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288.7, subdivision (a), and one count (3) of committing a lewd act on a child under the
age of 14 (victim A.G.) in violation of Penal Code section 288, subdivision (a).
Defendant pled not guilty, and the case proceeded to a jury trial in March 2012.
       Defendant was represented by retained counsel, Walter Urban. During trial, the
jury heard testimony from both victims, their mother, Detective Uribe, a defense
medical expert, and several other witnesses. Both J.M. and A.G. attested in detail to the
sexual assaults by defendant and were extensively cross-examined by defense counsel.
On March 22, 2012, the jury found defendant guilty on all four charges. Following the
reading of the verdicts, the court accepted a waiver of time from defendant as to
sentencing and scheduled the sentencing hearing for April 13, 2012.
       On April 13, 2012, the prosecutor, one of the victims (J.M.), and Michael
Rodriguez from the Sexual Assault Response Service were present at the sentencing
hearing and ready to proceed as scheduled with the reading of the victim impact
statements and sentencing. At the start of the hearing, defendant‟s attorney advised the
court that defendant had expressed “a desire to have me removed from the case,” and
for the court to appoint a public defender to represent defendant. Defendant‟s attorney
did not say he was unprepared to proceed with sentencing, nor did he state why
defendant wanted to discharge him or why he wanted a public defender to represent
him. The court denied the request as untimely and also noted that defense counsel had
done a good job representing defendant at trial.
       The court then proceeded to impose sentence. Defendant was sentenced to an
aggregate state prison term of 83 years to life calculated as follows: the upper term of
eight years on count 3, the base count, plus consecutive terms of 25 years to life on each
of counts 1, 2 and 4. The court awarded defendant a total of 616 days of custody
credits, and imposed various fees and penalties.
       This appeal followed.




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                                      DISCUSSION
1.     The Request to Discharge Counsel
       Defendant contends he is entitled to an automatic reversal for a violation of his
Sixth Amendment right to counsel because the trial court denied his request to discharge
his retained attorney and have a public defender appointed to represent him at
sentencing. We disagree.
       It is well-established that a criminal defendant has the right to timely seek
substitution of appointed counsel based upon a showing of inadequate representation or
an irreconcilable conflict. (People v. Marsden (1970) 2 Cal.3d 118, 123-125
(Marsden); People v. Ortiz (1990) 51 Cal.3d 975, 983(Ortiz).) However, the question
of competence of counsel is not a factor in resolving a defendant‟s request to discharge
retained counsel. “In contrast to situations involving appointed counsel, a defendant
may discharge his retained counsel of choice at any time with or without cause.”
(People v. Lara (2001) 86 Cal.App.4th 139, 152 (Lara), citing Ortiz, supra, 51 Cal.3d at
p. 983.) The right to discharge a retained attorney with or without cause also applies
after conviction. (People v. Munoz (2006) 138 Cal.App.4th 860, 869 (Munoz).)
       However, the right to discharge retained counsel is not absolute. (Ortiz, supra,
51 Cal.3d at p. 983; accord, Munoz, supra, 138 Cal.App.4th at p. 866.) A defendant‟s
Sixth Amendment right to counsel of his or her choice is balanced against the
countervailing state interest in the orderly administration of justice. (Ortiz, at pp. 982-
984; Lara, supra, 86 Cal.App.4th at pp. 151-153.) An untimely request to discharge
retained counsel and obtain new appointed counsel may be denied when it will result in
an unreasonable disruption in the orderly process of justice. (People v. Turner (1992) 7
Cal.App.4th 913, 918-919 (Turner) [untimely request that will “ „result in . . .
“disruption of the orderly processes of justice unreasonable under the circumstances of
the particular case” ‟ ” properly denied in court‟s discretion].)
       Requests made on the day of trial when a substitution would, without question,
necessitate a continuance, are routinely denied as patently untimely. (See, e.g., Turner,
supra, 7 Cal.App.4th at p. 919 [denial of request on day of trial proper because late


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request would have necessitated a mandatory continuance with “attendant further
inconvenience to witnesses and other participants”]; People v. Lau (1986) 177
Cal.App.3d 473, 479 [same].) That principle applies with greater force in the case of a
belated oral request to substitute retained counsel made at the start of a previously
scheduled sentencing hearing, as occurred here. Instead of addressing the untimeliness
of the oral motion, defendant focuses instead on the trial court‟s purported failure to
make a sufficient inquiry as to his concerns about his retained counsel, and to make
express findings that a continuance would amount to an unreasonable delay in the
proceedings.
       Defendant relies principally on Munoz, but the facts there were substantially
different. The defendant in Munoz wrote a letter to the judge over a week before his
scheduled sentencing hearing, indicating his desire to discharge his retained attorney
and asking for the court to appoint a new attorney for him specifically so he could file a
motion for new trial. (Munoz, supra, 138 Cal.App.4th at p. 864.) The court discussed
the matter with the defendant and his retained lawyer at the scheduled hearing, then
trailed the matter several days, and allowed the defendant to submit additional materials
detailing his concerns about his lawyer. The defendant submitted an additional six-page
letter outlining his concerns. (Id. at pp. 864-865.) However, at the next hearing, the
court denied the substitution request, essentially incorrectly relying on the need for a
Marsden showing of incompetence, but then continued the sentencing hearing another
month on the court‟s own motion to allow defendant to solicit supporting letters from
family and friends to be considered for sentencing. (Munoz, at p. 865.)
       The Munoz court found the record did not support a finding that substitution of
counsel would have caused an unreasonable delay in the proceedings, given that the
court delayed the proceedings over a month, during which time arguably a substituted
attorney could have been appointed and become sufficiently familiar with the case.
Munoz also cited the trial court‟s improper reliance on a Marsden standard in denying
the request, as well as the defendant‟s detailed explanation of his concerns with his
retained lawyer negating any concerns the request was sought solely for delay. (Munoz,


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supra, 138 Cal.App.4th at p. 870.) And, significantly, Munoz explains that in most
cases where a request to discharge retained counsel is made postconviction, as here, the
inevitable “delay and public expense” that would accompany the granting of substitute
appointed counsel “will militate for denial.” (Id. at p. 868.)
       Defendant has not persuaded us that this is not one of those cases where the
inevitable delay and public expense militates against the discharging of retained counsel
and appointing the public defender to represent defendant at sentencing. The
proceedings on defendant‟s oral motion were brief, but the circumstances were plain
and uncomplicated. And, the court‟s reference to the fact that defense counsel had done
a good job at trial does not indicate the court was improperly using a Marsden standard,
but rather reflects the court‟s observation that counsel had performed competently at
trial and was present and capable to properly handle the sentencing hearing. We believe
the record here adequately supports the court‟s exercise of discretion.
       The sentencing hearing had been scheduled some three weeks earlier in
defendant‟s presence after he agreed to a waiver of time as to the scheduling of the
hearing. The court, the prosecutor, one of the victims (J.M.), and Michael Rodriguez
from the Sexual Assault Response Service were all present and ready to proceed as
scheduled with the reading of the victim impact statements and sentencing. Granting
defendant‟s belated request would have mandated a continuance of the hearing, required
all those present to reschedule and return to court at a later date, and delayed resolution
of the proceedings. We cannot conclude the refusal to grant the substitution, as well as
the continuance that would have been required, amounted to an abuse of discretion.
(Turner, supra, 7 Cal.App.4th at p. 919, fn. 8 [rejecting assertion that trial court failed to
make a finding that substitution would have disrupted the judicial process because it
was “perfectly obvious” a substitution granted on the day of trial would mandate a
continuance].)




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2.     The Ineffective Assistance Claim
       Defendant further contends he was denied the effective assistance of counsel
because his attorney failed to move to sever the charge involving the A.G., from the
three charges regarding J.M. Once again, we disagree.
       The burden is on defendant to establish ineffective assistance by a preponderance
of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218 (Ledesma).) There are
two elements to an ineffective assistance claim. “[A] defendant seeking relief on the
basis of ineffective assistance must show both that trial counsel failed to act in a manner
to be expected of reasonably competent attorneys acting as diligent advocates, and that
it is reasonably probable a more favorable determination would have resulted in the
absence of counsel‟s failings.” (People v. Cudjo (1993) 6 Cal.4th 585, 623 (Cudjo),
citing Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).)
       On direct appeal, this burden can be stringent. When the record on appeal
“ „ “sheds no light on why counsel acted or failed to act in the manner challenged[,] . . .
unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.‟
[Citation.] A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267 (Mendoza Tello), italics added; People v. Jones (2003) 29
Cal.4th 1229, 1254 [ineffective assistance claim properly resolved on direct appeal only
where record affirmatively discloses no rational tactical purpose for counsel‟s actions].)
       There is a “strong presumption that counsel‟s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action „might be considered
sound trial strategy.‟ [Citation.].” (Strickland, supra, 466 U.S. at p. 689.) Moreover,
“prejudice must be affirmatively proved. [Citations.] „It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the
proceeding. . . . The defendant must show that there is a reasonable probability that, but
for counsel‟s unprofessional errors, the result of the proceeding would have been


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different. . . . [Citations.] Specifically, „[w]hen a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.‟ . . . [Citation.]”
(Ledesma, supra, 43 Cal.3d at pp. 217-218.)
       Defendant‟s sole claim of error against his attorney is that counsel failed to move
to sever count 3 from counts 1, 2 and 4. Penal Code section 954 provides, in relevant
part: “An accusatory pleading may charge . . . two or more different offenses of the
same class of crimes or offenses, under separate counts . . . ; provided, that the court in
which a case is triable, in the interests of justice and for good cause shown, may in its
discretion order that the different offenses or counts set forth in the accusatory pleading
be tried separately . . . .” Defendant concedes the four charges against him were
offenses of the same class and therefore subject to joinder under Penal Code section
954.
       By statute, the four separate counts based on sexual offenses against children in
violation of Penal Code sections 288 and 288.7 were properly joined, and therefore
defendant “can establish error only on a clear showing of prejudice.” (People v. Koontz
(2002) 27 Cal.4th 1041, 1075; see also People v. Geier (2007) 41 Cal.4th 555, 575
(Geier).) In order to meet his burden, defendant would have to show a reasonably
competent attorney would have moved for severance, the court would likely have
granted the motion, and severance would likely have resulted in a more favorable
outcome at trial. Defendant has failed to do so.
       First, there is nothing in the record indicating why defense counsel did not move
to sever the charges and request separate trials for each victim. Therefore, the issue is
properly rejected on appeal. (Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
However, even considering the argument on its merits, defendant has not persuaded us
he was prejudiced by the joinder of the charges at trial so as to establish ineffective
assistance of counsel. (Cudjo, supra, 6 Cal.4th at p. 623.)
       Prejudice from joined charges generally arises from the following circumstances:
“(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate


                                             8
trials; (2) certain of the charges are unusually likely to inflame the jury against the
defendant; (3) a „weak‟ case has been joined with a „strong‟ case, or with another
„weak‟ case, so that the „spillover‟ effect of aggregate evidence on several charges
might well alter the outcome of some or all of the charges; and (4) any one of the
charges carries the death penalty or joinder of them turns the matter into a capital
case.” ‟ [Citation.]” (Geier, supra, 41 Cal.4th at p. 575.)
       Cross-admissibility ordinarily dispels any prejudice. (People v. Stitely (2005) 35
Cal.4th 514, 531-532.) Count 3 was based on defendant‟s sexual assault of A.G. when
she was around nine years old, including touching her private parts and pinning her up
against the wall and placing his exposed penis in her face. Counts 1, 2 and 4 were based
on conduct that occurred approximately seven years later with J.M., also when she was
about nine years old, and defendant forcibly engaged in sex with her. The evidence of
the separate crimes against the two siblings would have been cross-admissible under
Evidence Code section 1108 had they not been joined in a single action. (See People v.
Hernandez (2011) 200 Cal.App.4th 953, 965-966.) “In enacting [Evidence Code]
section 1108 the Legislature recognized the „ “serious and secretive nature of sex crimes
and the often resulting credibility contest at trial,” ‟ and intended in sex offense cases to
relax the evidentiary restraints imposed by [Evidence Code] section 1101 „to assure that
the trier of fact would be made aware of the defendant‟s other sex offenses in evaluating
the victim‟s and the defendant‟s credibility.‟ [Citation.]” (Id. at p. 965.)
       We do not find that defendant‟s sexual assault on his daughter was so much more
egregious as to be likely to inflame the jury into convicting him of the assault on his
stepdaughter, or that the case involving his daughter was a “stronger” case than the case
involving his stepdaughter, or that either case was “weaker” than the other. Defendant‟s
ineffective assistance claim fails.




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                                DISPOSITION
    The judgment of conviction is affirmed.
         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              GRIMES, J.

WE CONCUR:



          BIGELOW, P. J.



          FLIER, J.




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