PEOPLE v. BRAVO

No. E064170.

THE PEOPLE, Plaintiff and Respondent, v. KEVIN DANIEL BRAVO, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

Nancy J. King , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra , Attorneys General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Anthony Da Silva , and Peter Quon, Jr. , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

SLOUGH, J.

After hearing evidence defendant Kevin Bravo held down his girlfriend's 18-month-old daughter and sprayed her genitals with scalding water for several seconds causing deep second degree burns, a jury convicted him of torture (Pen. Code, § 206; count 1) and child abuse likely to cause great bodily harm (Pen. Code, § 273a, subd. (a); count 2). The jury also found true the special allegation he personally inflicted great bodily harm during the commission of count 2, child abuse. (Pen. Code, § 12022.7, subd. (d).) The trial court sentenced him to seven years to life in prison.1

On appeal, Bravo contends there was insufficient evidence to support his convictions. He also argues the trial court violated his Sixth Amendment right to counsel of his choice when it denied his request to substitute appointed counsel with retained counsel on the first day of trial. We conclude these arguments lack merit, and affirm the judgment.

I

FACTUAL BACKGROUND

On October 13, 2013, Bravo took 18-month-old Jane Doe to Riverside Community Hospital for a severe burn injury. He told police Doe had accidentally burned herself when he left her alone in the bathtub. The prosecution charged him with child abuse and torture, and presented the following evidence at trial.

Doe's mother, Maria, met Bravo in February 2013 when she began renting part of a duplex unit from his uncle. Maria, her three young children, and her nephew lived in the front portion; Bravo and his uncle lived in the back. About three months later, Bravo began watching Maria's children while she was at work.

In September 2013, Bravo moved in with Maria. At the time, Bravo was 20 years old, Maria was 37, her two sons were nine and three years old, and Doe was 18 months old. Bravo was not employed, so he continued to watch the children while Maria was working.

Maria testified at length about the combination shower/bathtub where the incident occurred. The shower had two knobs, one for hot water and one for cold. The hot water was "very hot," so hot, in fact, she and Bravo had previously asked his uncle to look into it, but he refused. The shower also had a detachable, handheld showerhead which connected to the wall with a chord. A button on its handle diverted the water from the bath faucet to the showerhead. Maria said she was always the one to bathe Doe; Bravo never bathed her and it would be "unusual" if he did.

On October 13, 2013, Maria woke Bravo up at 7:00 a.m. before she left for work. Doe had a diaper rash at the time and would become irritable when her diaper was wet.

Around noon that day, a police officer came to Maria's place of work and informed her Doe had been hospitalized. By the time Maria arrived at the hospital, Doe had been transferred to the burn unit at Arrowhead Regional Medical Center.

A Riverside police officer responded to the hospital around 8:00 a.m. after receiving a call about a possible child abuse victim. She testified she had never seen anything like Doe's injury. She described it as a "horrible burn" that "[e]ncompassed all of her genitalia, above her genitalia into her outer thighs and underneath to her buttocks."

The police questioned Bravo about Doe's injuries at the hospital. He agreed to accompany two detectives back to his house and show them what had happened. The detectives filmed the interview and the prosecution played it for the jury. Bravo reenacted the incident inside the bathroom. He told the detectives that when Maria left for work, he gave Doe a bath. He placed her in the tub, which was empty at the time, and turned both the hot and cold knobs on so the water was warm. He quickly washed her, then left her in the tub in a few inches of water and went into the living room to play with the boys. Bravo estimated Doe was alone in the tub for "ten, fifteen, twenty minutes."

While he was in the living room, Bravo could hear Doe talking to herself in the bathroom, saying things like "papa" and "sopa," which she said when she was hungry. At some point, Doe screamed and he ran into the bathroom. The showerhead was lying in the tub. The water coming from it was "smoking" and the handle of the showerhead was "super hot" to the touch.

Bravo took Doe out of the tub and wrapped her in a towel. He showed the detectives the "cream" he put on her diaper area—it was sunscreen. He went next door and asked his neighbor to take them to the hospital.

When the detectives arrived at Maria's house, the bathtub was full of water and there was a layer of water on the floor. The water in the bathtub was 76 degrees Fahrenheit. The maximum temperature the hot water reached was 142 degrees. The dial on the water heater had been turned all the way to "very hot."

Dr. Amy Young, a forensic pediatrician at Loma Linda University Children's Hospital, testified Bravo's story was implausible and that Doe's injury could not have been caused by Doe or by accident. Dr. Young is a board certified specialist in child abuse pediatrics. In addition to serving on Loma Linda's faculty, she is the medical director at an advocacy center in San Bernardino that performs outpatient evaluations of cases of suspected child abuse. She has assessed over a dozen burn victims a year for the past 10 years.

In reaching her opinion of how the injury occurred, Dr. Young examined Doe 12 days after her injury, reviewed her medical records and photographs of the burn and the bathroom, and watched Bravo's video interview.

Dr. Young testified Doe suffered "deep second degree burns" on her lower stomach, genitals (including her labia majora and minora), buttocks, and parts of her inner thighs. The burn extended inside Doe's vagina. Dr. Young explained the degree of a burn is a result of the temperature of the burning implement (here, a liquid), whereas the depth of a burn depends on the duration of the skin's contact with the liquid. Doe also had two cuts on her face, a bruise on her chest, and a small burn on her right middle finger. Doe was hospitalized for two weeks as a result of her injuries.

According to Dr. Young, the burn pattern was quite demarcated, meaning severely burned skin directly abutted "spared" (or unburned) skin. In other words, the border between the second degree burn and spared skin was distinct; there was no gradation between the two skin types, no gradual lessening of severely burned skin to spared skin. This demarcation led Dr. Young to conclude Doe's injury was not caused accidentally. Accidental burns tend to produce a flow pattern where the burn is most severe at the point of initial contact and becomes less severe as the substance moves down the skin and quickly cools. Dr. Young showed the jury examples of burn patterns in accidental cases where—unlike in Doe's case—the severity of the burn gradually lessened up to the spared skin.

Based on the pattern of Doe's burn, Dr. Young concluded the child had been lying on her back with one leg extended and one leg held up in the air, causing her buttocks to lift. Doe could not have been sitting down when she was burned because her buttocks would have been spared through contact with the tub. Additionally, Bravo had told the detectives there was warm water in the tub when he left Doe in the bathroom, and—had Doe been sitting—this warm water would have provided a measure of protection by significantly cooling the water from the showerhead.

The fact the burn extended into Doe's vagina indicated the showerhead had been directed at and held "rather close" to her genitals, within a few inches. The depth of the burns indicated the water had been applied for several seconds. Based on published research on the relationship of burn severity, temperature, and duration of contact, it would have taken four to five seconds to cause Doe's level of burn if the water had been at its maximum temperature of 142 degrees. If the water had been slightly less hot, such as 133 degrees, it would have taken approximately 15 seconds. As a point of reference, the maximum temperature in which a person can comfortably bathe is 100 degrees. Dr. Young concluded Doe had been held down for several seconds and sprayed with burning hot water directed at and held close to her vagina.

Doe's other injuries provided further support for this conclusion. Bravo was wearing a bracelet on his right arm the day of Doe's injury. Dr. Young reviewed photographs of the bracelet and the bruise on Doe's chest and—while she was able to conclude the bruise had a "similar pattern" to the bracelet—she could not determine the bracelet had caused the bruise because she had not been able to take any measurements. Nevertheless, the bruise on Doe's chest and abrasions on her face were consistent with her being held down. Additionally, the burn on Doe's right middle finger indicated she was trying to push the showerhead away.

Dr. Young testified Bravo's account of the incident was "not plausible." According to Bravo, the bath water was warm when he left Doe in the tub. Dr. Young said it would have been very difficult, though arguably possible, for Doe to manipulate the hot and cold water knobs and diverter button to make burning hot water come out of the showerhead; however, it was physically impossible Doe had aimed and applied the water to her own genitals for several seconds while standing. The child's involuntary reaction would have been to "close [her] legs [and] move backwards . . . [to] get out of the water in whatever way that [she] can." Dr. Young said children generally move away from burning substances in less than a second.

Bravo did not testify or present affirmative defense evidence. At the close of the prosecution's case, he moved to dismiss the torture count on the ground there was no evidence he injured Doe "for the purpose of revenge, extortion, persuasion or for any sadistic purpose." (§ 206.)2 The court found there "absolutely is evidence for a sadistic purpose" and denied the motion.

After trial, Bravo renewed his argument, seeking dismissal of the torture count or a new trial on the ground there was no evidence he harbored a sadistic intent. At the hearing on Bravo's motion, the court prefaced its ruling by stating it had reviewed its trial notes and the briefs and had thought about the matter extensively. It found Bravo's accidental-burn theory "preposterous," stating "there was no question that [Doe] was placed in an empty tub, held down, legs spread, with water shot at her genital area. [¶] It was . . . inside the lips of her vagina, and it extended into the buttocks area." As to torturous intent, the court concluded Dr. Young's testimony on the nature of Doe's burns provided sufficient evidence of sadism. The court rejected Bravo's contention the evidence showed, at best, a violent outburst of anger, and instead concluded the several seconds it took to cause Doe's burn showed "[t]here was a goal." "[I]n child abuse cases, there can be a sudden outburst, a strike, a push, a throwing of a child, something like that. [But Bravo's] is a defined action that one has to think about. One has to think about, `This is what I am going to do and this is how I am going to accomplish it.'" The court denied the motion, and Bravo filed this appeal.

II

DISCUSSION

A. Sufficiency of the Evidence

Bravo contends his torture and child abuse convictions must be reversed because there is insufficient evidence he inflicted Doe's injury. In the alternative, he argues if we do find sufficient evidence of infliction, his torture conviction must nevertheless be reversed because there is insufficient evidence he harbored the requisite sadistic intent. We address the causation and intent arguments in turn.

When considering a challenge to the sufficiency of evidence supporting a judgment, we "`"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Davis (1995) 10 Cal.4th 463, 509.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432 (Mincey).) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765, italics added.) "Convictions are seldom reversed based on insufficiency of the evidence." (People v. Pre (2004) 117 Cal.App.4th 413, 421 (Pre).)

Both torture and the type of child abuse the jury found Bravo guilty of require the "infliction" of great bodily injury.3 (§§ 206, 273a.) On this record, we can easily conclude sufficient evidence supports the jury's finding Bravo inflicted Doe's injury. Bravo told the detectives only he and Doe were in the bathroom that morning, Maria's sons did not go in. This means only he or Doe could be the cause of the injury. Dr. Young's testimony provided substantial evidence to rule out Doe as the cause, leaving only one conclusion to be drawn, that Bravo had done it.

According to Dr. Young, to result in a burn of such shape and severity, the stream of burning water had to have been placed within a few inches of Doe's genitalia and held there for four to 15 seconds. Dr. Young said Doe could not have sprayed herself because—even if she had the strength and dexterity to turn off the cold water, turn the hot water all the way up, and press the diverter on the showerhead—she would not have been able to apply the spray for more than a second due to the heat.4 It necessarily follows only Bravo could have been the one to spray the water on Doe's genitals.

Bravo argues the trial evidence was also susceptible to a reasonable inference he held Doe down to wash her and did "not realiz[e] the water was scalding hot" until it was too late. We do not agree such an inference would have been reasonable. While the exact temperature of the water was unknown, it was hot enough to cause a second degree burn and hot enough to be "smoking" and make the showerhead "super hot" to touch. Additionally, there was evidence Bravo knew how hot the water would get and had asked his uncle to decrease the maximum temperature. Given how obviously hot the water had been, coupled with Dr. Young's testimony children move away from burning substances in less than a minute, no reasonable jury could conclude Bravo did not realize the water was burning Doe during the several seconds he held her down and sprayed her.

We now turn to whether there is sufficient evidence Bravo harbored a sadistic intent. A person is guilty of torture if he inflicts great bodily injury "with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (§ 206.) A defendant harbors a sadistic purpose if he seeks to cause the victim pain so he may experience pleasure. (Pre, supra, 117 Cal.App.4th at p. 420.)

Purpose or intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense, including the nature of the injury. (Mincey, supra, 2 Cal.4th 408, 433; Pre, supra, 117 Cal.App.4th at p. 420.) Here, the jury heard evidence of a brutal and prolonged act directed at an 18-month-old child's genitals. Not only did Bravo choose an especially vulnerable victim (a barely verbal child), but in addition he targeted his abuse at one of the most vulnerable parts of her body. Even taking Dr. Young's lowest estimate, four seconds is an excruciatingly long time to apply a stream of scalding hot water to a child's genitals. During those four seconds, Doe would most likely have been screaming and writhing in pain. What is more, Bravo held the "smoking" water so close to Doe's genitals the stream pushed past her labia majora and minora, and into her vagina. Based on this evidence, we conclude a reasonable jury could have found such a prolonged, gratuitous, and extreme act of brutality against a child was committed for the sadistic purpose of providing pleasure, "whether sexual or simply a perverted enjoyment of causing the victim to suffer." (People v. Massie (2006) 142 Cal.App.4th 365, 376 (Massie).)

Bravo contends the evidence of sadism was insufficient because the prosecution introduced no evidence he had a history of child abuse or was upset with Doe. He asserts the prosecution engaged in pure speculation when it argued during closing that he was angry with Doe for crying over her diaper rash and had burned her in retaliation. This argument is unhelpful because torture convictions do not require evidence of prior similar acts or statements from the defendant to prove a torturous intent. While such evidence can be useful to prove state of mind, the law recognizes such evidence is not available in many cases. "Intent is a state of mind. A defendant's state of mind must, in the absence of the defendant's own statements, be established by the circumstances surrounding the commission of the offense." (Mincey, supra, 2 Cal.4th at p. 433.) Because it is not always possible to obtain direct evidence of a defendant's state of mind, the prosecution may use circumstantial evidence, including the nature of the victim's injury. "The condition of the victim's body may establish circumstantial evidence of the requisite intent." (Ibid.)

In Mincey, our high court rejected the argument that the nature of the injury is by itself insufficient to establish torturous intent. (Mincey, supra, 2 Cal.4th at p. 432 ["Defendant argues that here the only evidence of intent to torture was the condition of the victim's body, and that as a matter of law intent to torture cannot be inferred solely from the condition of the victim's body. He is wrong"]; see also People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426-1427 ["a jury may infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim"].) Here, although the prosecution had no direct evidence of Bravo's state of mind, it was able to present circumstantial evidence in the form of expert testimony on the nature of Doe's injury and how it had been inflicted. Dr. Young's testimony was sufficient to support the jury's finding of sadistic intent.

Bravo contends the evidence he held Doe down and sprayed her with burning water also supports a reasonable inference he acted in a spontaneous outburst of anger and without deriving any pleasure from the child's suffering. In our view, the evidence Bravo sprayed Doe anywhere from four to 15 seconds more strongly supports sadism than the latter because anger tends to pass quickly. However, we recognize the evidence could support an inference Bravo became enraged with Doe and there was no sadistic purpose behind his actions. Even still, this is not a reason to reverse the torture conviction.

"The role that anger may have played in a criminal attack is a matter for the jury to determine . . . The proper inferences to be drawn are the province of the jury and not an appellate court." (Massie, supra, 142 Cal.App.4th at p. 372.) It is a rare case where the evidence points to only one conclusion. More often, juries must choose from multiple conflicting inferences. On appeal, we may only reverse the jury's chosen inferences where "upon no hypothesis whatever" is there sufficient evidence to support them. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) A jury's verdict is not subject to reversal "simply because . . . conflicting inferences on matters bearing on guilt could be drawn at trial." (Massie, at p. 373.) "`"[I]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'"" (Ibid.)

Citing to cases involving more egregious abusive conduct, Bravo argues there is no precedent for upholding his torture conviction. (See, e.g., People v. Hale (1999) 75 Cal.App.4th 94, 108 [the defendant had previously "terrorized and threatened" the victim and her family and killed their dog before entering her house in the middle of the night and smashing her face with a hammer]; People v. Gonzales (2012) 54 Cal.4th 1234, 1299 [the defendant had engaged in a "numbing course of torture over a period of weeks which featured beating, tying, binding, burning, scalding, [and] hanging"].) However, "[t]orture . . . does not require a specific modality. It requires the infliction of great bodily injury with the `intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.' (§ 206.) There is no question there are cases in which the acts of torture were more gruesome. However, `When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts.'" (People v. Odom (2016) 244 Cal.App.4th 237, 248, citing People v. Thomas (1992) 2 Cal.4th 489, 516.)

As the court explained in Pre, "Other Court of Appeal decisions have similarly found little utility in looking to the facts of other torture cases when faced with assessing the sufficiency of the evidence . . . [C]omparison to the facts in other cases is of little value in assessing the sufficiency of the evidence in a particular case." (Pre, supra, 117 Cal.App.4th at p. 423, citing People v. Baker (2002) 98 Cal.App.4th 1217, 1224-1225 [rejecting argument that "the cases in which torture convictions have been affirmed involve[d] evidence demonstrating `uniquely vicious behavior' or `evilness' not present" in the defendant's case]; People v. Hale, supra, 75 Cal.App.4th at p. 107 [rejecting argument that the evidence was insufficient because the defendant's "acts were not so egregious" as those in other torture cases]; People v. Jung (1999) 71 Cal.App.4th 1036, 1043 [rejecting argument that evidence was insufficient because other victims suffered more, explaining, "other victims of torture may have suffered more than the victim in this case sheds no light on the sufficiency of the evidence of defendants' intent to cause [the victim] severe pain and suffering"].)

We agree the facts of other cases are of little aid in assessing the sufficiency of the evidence in a particular torture case. That Bravo did not inflict more severe or additional injuries upon Doe, or did not abuse the child multiple times over a period of months, or require her to engage in humiliating acts does not undermine a conclusion the evidence was sufficient to support a torture verdict. Bravo held an 18-month-old child down for several seconds and sprayed scalding hot water on her genitalia. He ended up grievously injuring his victim, causing deep second degree burns inside her vagina and on her stomach, buttocks, and thighs that removed layers of her skin and required her to be hospitalized for two weeks.

In any event, contrary to Bravo's contention, there is a published case with similar torture facts. In People v. Whisenhunt (2008) 44 Cal.4th 174 (Whisenhunt), the defendant murdered a 19-month-old girl. Among other things, she suffered small third degree burns all over her body, including her genitalia, caused by what the expert believed was hot oil. (Id. at pp. 186, 188-189.) The expert testified "the severity of burn pain is incomparable." (Id. at p. 188.) The California Supreme Court rejected the defendant's contention of insufficient evidence to support the jury's torture special circumstance finding. It held the "condition of the body, with the numerous methodical burn wounds inflicted, abundantly supports the jury's finding." (Id. at p. 201.) That Bravo may not have burned as many parts of Doe's body or used scalding water instead of oil are differences of degree, not of kind. Similar to the defendant in Whisenhunt, Bravo's burning of Doe was methodical. It was prolonged and targeted, and the jury's finding of sadistic intent is supported by the record.

As a final point, we note we reviewed the photographs of Doe's injuries and the video of Bravo's reenactment of the incident. These exhibits provide additional support for Dr. Young's opinion the burn was the result of close, prolonged, and deliberate application of burning water to Doe's genitals. To say the evidence in this case does not rise to the level of torture strains our understanding of the crime.

B. The Substitution Motion

On the morning of the first day of trial, Bravo made an unsuccessful motion to substitute retained counsel for appointed counsel. He contends the court violated his Sixth Amendment right to counsel of choice by denying his request.

1. Factual background

On April 13, 2015, the day trial was scheduled to begin, the parties appeared in the presiding court to receive their department assignment. In attendance were the prosecutor, the public defender representing Bravo (Ms. Norman), and Mr. Matic, a private defense attorney. Ms. Norman informed the court she had just learned two hours earlier Bravo was going to move for substitution of counsel. Mr. Matic stated, "I have been hired as the attorney to take over for the defense counsel. However, even though we are requesting to substitute in, I will not be ready for trial."

The presiding court expressed concern that Bravo's case was "a little old" and that the motion was being brought on the first day of trial. The court asked the prosecutor and public defender if they were ready to begin trial and both said they were. Ms. Norman explained discovery was complete and she and the prosecutor had "been communicating all week through Spring break to make sure we're ready." Based on the fact both sides were ready for trial, the court denied the substitution motion as untimely and transferred the case to a different department for trial.

As soon as the parties appeared before the trial court to begin jury selection, Bravo asked for a Marsden hearing.5 At the outset of the hearing, he told the court he wanted another attorney appointed to him because he felt Ms. Norman was not doing her job properly. Ms. Norman became Bravo's counsel after the preliminary hearing. Before then, Ms. Treichel from the public defender's office had represented him. Bravo said he had liked working with Ms. Treichel and felt "very well-informed of everything that was going to happen," but did not feel the same way about Ms. Norman. Bravo gave the following reasons for wanting a new attorney: the defense investigator had not talked to him about the case; Ms. Norman had not told him what was happening in his case or how she intended to handle it; she had not spoken to his family about the case; he did not agree with her "on things"; and he did not trust her or feel comfortable with her. Asked to specify what counsel had done to make him not trust her or feel uncomfortable with her, Bravo responded, "[t]he communication, the way she speaks to me and not inspiring and instilling that sense of trust to go forward with this trial."

Ms. Norman responded to each of Bravo's concerns. She had been a public defender for eight years and had litigated 70 criminal trials, including rape, murder, and child molestation cases. She had prepared Bravo's defense by talking to Ms. Treichel, and reviewing the preliminary hearing transcript, Dr. Young's forensic examination, and the approximately 30 audio and video recordings in the case file. She met with the defense investigator, who had interviewed Maria's sons and had met with Bravo's family. Ms. Norman had also talked to Bravo's family but forwarded most of their calls to her supervisor because she refused to discuss the details of the case with them and breach the attorney-client privilege. She described Bravo's family as "very, very difficult to deal with" based on their "interfering so consistently." She had also met with Bravo several times and tried to get information from him, but mostly received "one word responses." She explained, "[I]t has been sort of hard. However, I don't really feel like I need a ton from him right now. I have . . . his video reenactment of what occurred, and so I focused on that for my defense in the case and focused on . . . the doctors that I've spoken too." She added she had consulted with several burn experts and though she did not plan to call any of them as witnesses, they were able to provide useful information.

Bravo had asked Ms. Norman if he could speak to the investigator and she told him she could not promise the investigator would visit. She explained investigators are usually busy working on the case and often do not interview defendants unless "they feel like something very fruitful will come out of it." The investigator later told her she had done all the necessary work on the case and did not end up having an opportunity to meet with Bravo.

Ms. Norman disputed Bravo's claim she had not explained the case to him. She said they had discussed in depth the charges and how jury trials proceed.

Based on Bravo's and counsel's statements, the court concluded Ms. Norman was properly representing Bravo and there were no irreconcilable differences to warrant discharge. The court told Bravo, "Many clients come into court, and they complain about the way that their attorney doesn't agree with them. Attorneys aren't hired to agree with a client. . . . [¶] What you want to hear from any lawyer that represents you is the truth. . . . [¶] . . . Bottom line is, I'm not hearing anything that would cause me to replace her. She is ready to go to trial. She has the experience to go to trial. She's handled cases that are as serious or more serious than this. And I'm not going to replace her."

The court told Bravo it was concerned he was using the Marsden process to obtain a rehearing on his two earlier motions to substitute retained counsel. Ms. Norman and Bravo explained he had only brought one motion, and had done so earlier that same day. Bravo stated, "I was unable to get my attorney because my family was barely able to get the money today." Ms. Norman added that Mr. Matic had approached her that morning and informed her Bravo's family was "trying to hire him." The court thanked the parties for explaining the situation and concluded the hearing.

2. Analysis

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." "The right to the effective assistance of counsel `encompasses the right to retain counsel of one's own choosing.'" (People v. Courts (1985) 37 Cal.3d 784, 789.) However, the right to counsel of choice "is not absolute" (People v. Stevens (1984) 156 Cal.App.3d 1119, 1127) and "is circumscribed in several important respects." (Wheat v. United States (1988) 486 U.S. 153, 159.) A trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness, [citation], and against the demands of its calendar." (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152.) We review a trial court's denial of a motion to substitute retained for appointed counsel for abuse of discretion. (People v. Butcher (1969) 275 Cal.App.2d 63, 68.)

Two cases are particularly instructive to our analysis. In People v. Lau (1986) 177 Cal.App.3d 473 (Lau), the defendant asked to substitute retained counsel for appointed counsel on the first day of trial, "literally the moment jury selection was to begin." (Id. at p. 479.) After noting the motion was untimely, the trial court asked him to explain why he was dissatisfied with appointed counsel. (Ibid.) After hearing argument, the court found the defendant's reasons were insufficient to warrant substitution. (Ibid.) On appeal, the defendant argued the trial court violated his right to counsel of choice, but the Lau court disagreed. It stated, "the timeliness, or lack thereof, of the request properly concerned the [trial] court." (Ibid.) It concluded the trial court had properly denied the defendant's late motion after listening to his reasons for substitution and finding them insufficient. (Ibid.)

In People v. Turner (1992) 7 Cal.App.4th 913 (Turner), the appellate court similarly upheld the denial of a substitution motion brought the first day of trial. (Id. at pp. 919-920.) The appellate court explained that, faced with such a late substitution motion, "[t]he question [for the trial court] then became whether such a disruption was reasonable under the circumstances." (Id. at p. 919.) The appellate court approved of how the trial court considered the eleventh-hour motion because it "allow[ed] defendant to explain his dissatisfaction with [appointed counsel]." (Ibid.) Based on the defendant's explanation, the trial court concluded he had not demonstrated an "adequate basis for permitting the disruption of a continuance," finding his complaints vague and possibly motivated by a dilatory purpose. (Ibid.) The Turner court found no Sixth Amendment violation and upheld the denial, explaining "[w]hatever defendant's subjective intent, the substitution of counsel on the morning of trial would certainly have led to a continuance, and the trial court properly found that such a disruption would be unreasonable under the circumstances." (Turner, at p. 919.)

Lau and Turner teach that substitution motions brought on the first day of trial may properly be denied if the trial court is satisfied further delay to allow new counsel to prepare for trial is unreasonable. In both cases, the trial courts determined delay would be unreasonable because the defendants' current counsel were properly representing their clients. Such was the case here.

The presiding court denied Bravo's substitution motion as untimely because Bravo brought it on the morning of jury selection and both sides were ready to go to trial, whereas new counsel was not. When Bravo renewed his request with the trial court moments later, the trial court held a full Marsden hearing and allowed him to detail his concerns with Ms. Norman. After hearing from both Bravo and Ms. Norman, the court determined counsel was fully capable of defending Bravo and discharge was unwarranted. Having reviewed the transcript of that hearing, we can confidently conclude there was no abuse of discretion in that determination.

Bravo contends United States v. Gonzalez-Lopez commands a different result. In that case, he argues, the United States Supreme Court stated the right to counsel of choice "commands, not that a trial be fair, but that . . . the accused be defended by the counsel he believes to be best." (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 146.) Read in isolation, this quote suggests the right is absolute, but Bravo overlooks the fact the government had conceded the constitutional violation in that case and the sole issue was which standard of prejudice applied. (Id. at p. 148.) Indeed, the Court explicitly acknowledged trial courts' broad discretion to "make scheduling and other decisions that effectively exclude a defendant's first choice of counsel." (Id. at p. 152.)

Granting Bravo's late substitution motion would have caused unreasonable delay because his current counsel was capable of providing adequate representation and his new counsel was not prepared to step into her shoes. We therefore find no abuse of discretion in the trial court's ruling.

III

DISPOSITION

We affirm the judgment.

McKINSTER, Acting P. J. and MILLER, J., concurs.

FootNotes


1. This term was for the torture count. The court also imposed, and stayed under Penal Code section 654, a term of six years for the child abuse count, enhanced by six years for the great bodily harm allegation.
2. Unlabeled statutory citations refer to the Penal Code.
3. For the child abuse count, the jury was given the choice of finding Bravo had personally inflicted, permitted Doe to suffer, or allowed Doe to be placed in danger of suffering, great bodily injury. In finding him guilty of child abuse, the jury further found Bravo had personally inflicted great bodily injury upon Doe.
4. Dr. Young said the particular knobs in Maria's shower are especially difficult for young children to manipulate.
5. People v. Marsden (1970) 2 Cal.3d 118.

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