Filed 02/27/17




                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G051606

        v.                                           (Super. Ct. No. 13NF3826)

MICHAEL JAMES JACKSON,                               OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, James
E. Rogan and Scott A. Steiner, Judges. Affirmed.
                 Barbara A. Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
                 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
              The trial judge in this case exercised uncommon common sense in a ruling
that guaranteed defendant would not have to face the beggar‟s crossroad of having to
choose between revealing damaging information to the judge about to hear his bench trial
or giving up his chance at a new attorney. This sagacity is assigned to us as error.
              Appellant Michael James Jackson was convicted of multiple counts of
sexual misconduct arising from his work as a massage therapist. His sole claim on appeal
is that the trial judge erred in transferring his motion for a new attorney – commonly
known as a Marsden motion (see People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) – to
another judge for adjudication. Although Marsden motions generally should be heard by
the judge who is assigned to the defendant‟s case, the transfer here was justified because
at the time appellant made his motion, he was facing a bench trial in front of the very
judge to whom he would have addressed his complaints. We affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
              Appellant was charged with committing sex crimes against four different
women to whom he provided massage services. He was also charged with one count of
possessing child pornography. The trial judge, James E. Rogan, granted appellant‟s
motion to sever the pornography charge, and appellant waived his right to a jury trial on
that charge. Then, while that charge was awaiting resolution, Judge Rogan conducted
appellant‟s jury trial on the remaining charges.
              At the jury trial, appellant‟s clients Tina M., Erica V., and Lisa R. testified
appellant touched and/or digitally penetrated their vaginas while massaging them.
Although all three women objected to this conduct, appellant assured them he was doing
it for therapeutic purposes, i.e., to break up scar tissue or “work out knots” in their
genitalia. The evidence also indicated appellant had sexual intercourse with Antoinette
Y. against her will during the course of a massage.
              Testifying on his own behalf, appellant denied touching Erica or Lisa
inappropriately. He admitted touching Tina‟s vagina and having sexual intercourse with

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Antoinette but claimed those actions were consensual. The jury acquitted appellant of
raping Antoinette. As to the other three victims, however, it found appellant guilty of
five counts of sexual penetration by fraud, one count of sexual battery by fraud and three
counts of simple battery. (Pen. Code, §§ 289, subd. (d)(4); 243.4, subd. (c); 242.)1
                 Following the verdict, appellant made a Marsden motion to replace his
public defender, Justin Glenn. At the time of the motion, the bench trial on the remaining
charge involving child pornography was still pending before Judge Rogan. In light of
that pending charge, Glenn requested the motion be heard by another judge. The basis
for Glenn‟s transfer request was that he did not want Judge Rogan to hear any evidentiary
matters related to the outstanding count. Judge Rogan granted the request and transferred
the motion to Judge Scott A. Steiner for hearing and resolution.2
                 Judge Steiner took up the motion that very day. At the outset, he informed
appellant, “Judge Rogan has asked me to hear this Marsden hearing so you can feel free
to speak freely with me about your concerns without any concern that it might come back
to haunt you at some later stage in these proceedings[.]” Appellant was not happy with
this arrangement. He said he wanted Judge Rogan to hear the motion “because the moral
turpitude and dishonesty was done in his court.” However, Judge Steiner told him he did
not have any choice in the matter and proceeded with the hearing.
                 Appellant voiced multiple complaints against Glenn during the hearing.
First he faulted Glenn for failing to impeach Tina and Erica more vigorously. Appellant
asserted Tina was susceptible to additional impeachment because she made fraudulent
representations in applying for a personal line of credit. And as to Erica, appellant
claimed she filed a false consumer complaint against him online and then told him she


         1        The simple battery offenses were offered as lesser included offenses to charges of aggravated
sexual penetration.
         2        Judge Rogan made this ruling after conferring with counsel in chambers. Although this chambers
conference was not reported, we granted respondent‟s motion to augment the appellate record with a settled
statement of the proceedings.


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would not retract the complaint unless he paid her $10,000. According to appellant, he
alerted Glenn to these issues, but Glenn never raised them at trial.
               Appellant also criticized Glenn for neglecting to challenge the accuracy of
certain information the police presented in seeking a protective order for Tina before trial.
The police alleged appellant had confessed to digitally penetrating Tina during a covert
phone call, but appellant claimed he never confessed to anything during the call. He was
frustrated Glenn never brought this up during the trial.
               Appellant was also upset about a discussion he had with Glenn during a
break in his direct examination. During the break, Glenn told him to keep his answers
short and just answer the specific questions that were being posed to him. Appellant
knew he had been “spinning off a little bit” in his testimony, but he resented Glenn‟s
advice because he felt his testimony was his only opportunity to explain himself to the
jury.
               In addition to the foregoing, appellant accused Glenn in general terms of
“dishonesty” and “misleading the court.” Appellant also claimed Glenn was remiss for
“not properly investigating and bringing in witnesses” to help his case and by refusing to
let him correct and explain the various “lies” that were told by the prosecution‟s
witnesses.
               In responding to appellant‟s allegations, Glenn told the court he has
handled close to 200 trials in his nine years as a public defender. He said he did attempt
to raise the issue of Tina‟s fraudulent credit application at trial, but the trial court
precluded him from doing so. Glenn stated he also investigated appellant‟s claim about
Erica‟s alleged blackmail scheme. However, he was unable to corroborate the claim, so
he never broached the issue at trial.
               As for the allegation regarding appellant‟s false confession, Glenn
explained that appellant did actually admit to digitally penetrating Tina during the covert



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phone call. Although there was some ambiguity as to whether appellant claimed the
penetration was consensual, the underlying conduct was never really in doubt.
              Lastly, Glenn did not dispute that when he spoke to appellant during a
break in his direct examination, he was quite forceful in terms of directing appellant to
shorten his answers to his questions. Glenn said this was imperative because appellant
had been giving meandering, irrelevant answers that opened the door to extensive cross-
examination. Glenn was also concerned appellant‟s answers were coming off as a crass
attempt to ingratiate himself with the jury, which fit the prosecution‟s characterization of
him as being manipulative in nature.
              In ruling on the matter, Judge Steiner credited Glenn‟s explanations and
found no basis to remove him from the case. He therefore denied appellant‟s Marsden
motion and sent the matter back to Judge Rogan. Judge Rogan then conducted a bench
trial on the sole remaining charge and found appellant guilty of possessing child
pornography. At sentencing, appellant appeared with retained counsel, who stated he
could not find any grounds for filing a motion for a new trial. Thereupon, Judge Rogan
sentenced appellant to 15 years in prison.
                                       DISCUSSION
              Recognizing he was fully allowed to air his grievances against his attorney,
appellant makes no complaints about the manner in which Judge Steiner handled his
Marsden hearing. However, he contends Judge Steiner was the wrong person to hear his
motion and that Judge Rogan erred as a matter of law by transferring the matter to him.
Appellant asserts the transfer violated his right to effective assistance of counsel and due
process of law. We don‟t see it that way. We think it protected those rights.
              “Trial courts operate according to norms that confer substantial discretion
in the conduct of judicial business. [Citation.]” (People v. Rodriguez (2016) 1 Cal.5th
676, 682.) In fact, „“It is . . . well established that courts have fundamental inherent
equity, supervisory, and administrative powers, as well as inherent power to control

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litigation before them.‟” (Ibid., quoting Rutherford v. Owens-Illinois, Inc. (1997) 16
Cal.4th 953, 967.) That doesn‟t mean Judge Rogan had carte blanche to transfer
appellant‟s Marsden motion to another judge, but we must keep in mind that trial courts
generally have substantial leeway when it comes to “distribut[ing] business within their
courts[.]” (Id. at p. 679.)
              Furthermore, in assessing the propriety of Judge Rogan‟s decision, it also
makes sense for us to revisit the Marsden decision itself to see if it provides any clues
about whether the transfer of appellant‟s motion was permissible. In Marsden, the
California Supreme Court ruled that although trial courts have considerable discretion in
deciding whether to grant an indigent defendant‟s request for a new attorney, they cannot
deny such a request without giving the defendant the opportunity to explain why he is
unhappy with current counsel. (Marsden, supra, 2 Cal.3d 118 at p. 124.) In so ruling,
the Marsden court did not address the issue presented in this case, i.e., whether the
hearing must be conducted by the trial judge or whether the matter may be transferred to
another judge for resolution. But we think it said a lot that supports Judge Rogan‟s
measures and nothing that calls them into question.
              One of the reasons the Marsden court gave for requiring a hearing on the
defendant‟s request for a new attorney is that “[t]he defendant may have knowledge of
conduct and events relevant to the diligence and competence of his attorney which are not
apparent to the trial judge from observations within the four corners of the courtroom.
Indeed, „[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily
relates to matters outside the trial record[.]” (Marsden, supra, 2 Cal.3d at p. 123.) This
consideration militates against adopting a strict rule requiring Marsden motions to be
heard by the defendant‟s trial judge. Although for practical purposes the trial judge will
usually be in the best position to rule on the defendant‟s request for a new attorney, the
possibility he/she might be prejudiced by material outside the record – material counsel
or client might wish to keep confidential until all matters were resolved – is a significant

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consideration, especially where the defendant is about to go forward on a bench trial
before him. Under those circumstances, the need to keep behind-the-scenes defense
issues from being revealed seems both paramount and obvious.
              Marsden addressed concerns about the potential for prejudice resulting
from the trial judge‟s exposure to information about the defendant‟s relationship with his
attorney. The trial court in Marsden actually cited this concern in refusing to explore the
defendant‟s reasons for wanting another attorney. (Marsden, supra, 2 Cal.3d at p. 122.)
However, since the case was being tried before a jury, the Supreme Court felt there was
very little danger of prejudice resulting from a hearing on the issue. As a matter of fact,
the court found it “difficult to comprehend how a defendant‟s statement made out of the
presence of the jury to support his claim that his counsel is inadequate could adversely
affect a judgment on the merits” in such a case. (Id. at p. 125.)
              Unlike the situation in Marsden, the jury phase of this trial was already
over when appellant made his motion for a new attorney in this case. However, there was
still one count left to be adjudicated before Judge Rogan. Since appellant waived his
right to a jury trial on that count, Judge Rogan was solely responsible for deciding the
truth of that charge. That threatened to put Judge Rogan in a perilous position. It is one
thing for a judge to compartmentalize information gained in the course of a Marsden
hearing when his sole task is to administer the proceedings in a jury trial. But when, as
here, the judge is about to be required to as trier of fact in a bench trial, the potential for
prejudice increases substantially. In light of this danger, it was not unreasonable for
Judge Rogan to transfer appellant‟s Marsden motion to another judge for resolution.
              In arguing otherwise, appellant relies on People v. Sanchez (2011) 53
Cal.4th 80 (Sanchez) and People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman). In
those cases, the trial court entrusted a second defense attorney to decide the issue of
whether the defendant‟s current attorney was representing the defendant in a competent
manner. (Sanchez, supra, 53 Cal.4th at pp. 84-86; Eastman, supra, 146 Cal.App.4th at

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pp. 687-695.) This procedure was deemed improper because it amounted to an unlawful
delegation of the court‟s decision-making authority. (Sanchez, supra, 53 Cal.4th at p. 89;
Eastman, supra, 146 Cal.App.4th at p. 697.) Here, however, there was no such
delegation to a second attorney. Instead, the trial court fulfilled its obligation under
Marsden to give appellant “an opportunity to state any grounds for dissatisfaction with
[his] current appointed attorney. [Citation.]” (Sanchez, supra, 53 Cal.4th at p. 90.) That
being the case, it does not matter that appellant‟s Marsden hearing was conducted by a
judge other than his trial judge. Because appellant received a full and fair judicial
hearing on his motion, his Marsden rights were adequately protected.
              Appellant also contends Glenn was ineffective for requesting that his
Marsden motion be heard by someone other than Judge Rogan. The contention is based
on the assumption a defendant has a fundamental constitutional right to have his Marsden
motion heard by his trial judge, and such right cannot be relinquished absent a personal
waiver from the defendant. Appellant asserts this right is inalienable, even in cases
where the defendant‟s assertion of it may appear to be foolish. (Cf. People v. Windham
(1977) 19 Cal.3d 121, 128 [if a criminal defendant voluntarily elects to represent himself,
the trial court must permit him to do so, “irrespective of how unwise such a choice might
appear to be.”].)
              For the reasons explained above, however, while we recognize the
defendant‟s right to a hearing, we do not believe the law requires his Marsden motion to
be heard by the judge who is handling his trial. A defendant has every right to petition
for a new attorney under the guidelines set forth in Marsden, but that does not give him
or her the concomitant right to decide which judge will hear that petition. Rather, that
decision is vested within the trial court‟s broad authority to fairly administer the matters
that come before it. Under the circumstances presented in this case, we find it was
entirely permissible – indeed, probably wise – for Judge Rogan to transfer appellant‟s
Marsden motion to another judge for adjudication. There is no basis for reversal.

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                                  DISPOSITION
            The judgment is affirmed.




                                            BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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