People v. Marugg CA4/1 ( 2021 )

Filed 9/23/21 P. v. Marugg CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076618
Plaintiff and Respondent,
v. (Super. Ct. No. SCD160771)
KIM MARUGG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Laura H. Parsky, Judge. Affirmed.
Aurora E. Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Robin Urbanski and Arlene A. Sevidal, Deputy Attorneys General, for
Plaintiff and Respondent.
In 2003, appellant Kim Marugg (Appellant) pled guilty to one count of
conspiracy to misrepresent a fact in violation of Penal Code section 182,
subdivision (a)(1).1 She appeals from an order of the trial court denying
(1) her motion to vacate this conviction based on what she contended was
newly discovered evidence of actual innocence (§ 1473.7, subd. (a)(2)
(§ 1473.7(a)(2))2); and (2) her motion for a finding of factual innocence
(§ 851.8, subd. (d)3).
This is the second time this case is before us. In an August 2018
opinion, this court affirmed the trial court’s denial of Appellant’s petition for
writ of error coram nobis (in which Appellant sought to withdraw her guilty
plea and to dismiss the charges), reversed the denial of Appellant’s motion to
vacate the conviction under section 1473.7(a)(2), and remanded with
directions for the trial court to hold a hearing on Appellant’s motion and to
1 Subsequent unidentified statutory references are to the Penal Code.
2 Section 1473.7(a)(2) provides: “(a) A person who is no longer in
criminal custody may file a motion to vacate a conviction or sentence for any
of the following reasons: [¶] . . . [¶] (2) Newly discovered evidence of actual
innocence exists that requires vacation of the conviction or sentence as a
matter of law or in the interests of justice.”
3 Section 851.8, subdivision (d) provides: “In any case where a person
has been arrested and an accusatory pleading has been filed, but where no
conviction has occurred, the court may, with the concurrence of the
prosecuting attorney, grant the relief provided in subdivision (b) at the time
of the dismissal of the accusatory pleading.” The principal relief provided in
subdivision (b) includes a finding of “factual[ ] innocen[ce] of the charges for
which the arrest was made” and an order to various law enforcement
agencies to seal and destroy their records of the arrest and the court order.
(§ 851.8, subd. (b).)
2
specify the basis of its ruling. (People v. Marugg (Aug. 27, 2018, D072065)
[nonpub. opn.] (Marugg I).4)
In the present appeal, Appellant suggests that, at the hearing directed
by this court in Marugg I, supra, D072065, the trial court “prioritized form
over substance and efficiency over truth.” More specifically, Appellant argues
the court erred in issuing two sets of rulings.
First, Appellant focuses on what she describes as two “blanket,
exclusionary rulings” which, according to Appellant, barred two entire
categories of evidence. With regard to actual innocence, Appellant argues
that she was prejudiced by the court’s refusal to allow evidence of her trial
attorney’s ineffectiveness at and after the time of the 2003 conviction. With
regard to whether the evidence was newly discovered, Appellant argues that
she was prejudiced by the court’s refusal to allow any evidence that was in
existence at the time of her plea (Dec. 2003), including evidence derived
therefrom. As we explain, based on the record before the court and the offers
4 On our own motion, we take judicial notice of Marugg I, supra,
D072065 (Evid. Code, §§ 459, subd. (a), 452, subd. (a)) and adopt without
citation to Marugg I much of the factual and procedural presentation.
In May 2020, Appellant moved to augment the record on appeal to
include the respondent’s brief in Marugg I, supra, D072065. We deemed the
motion to be a request for judicial notice of the brief and deferred ruling.
Appellant has neither established the relevance of this document (People v.
Franklin (2016) 63 Cal.4th 261, 280 [judicial notice denied where appellant
does not establish relevance of appellate brief from a different appeal] nor
explained why we should consider a document that was not presented to the
superior court in connection with the section 1473.7 hearing (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3
[absent extraordinary circumstances, an appellate court “ ‘will consider only
matters which were part of the record at the time the [order on appeal] was
entered’ ”]). Accordingly, Appellant’s request for judicial notice of the
respondent’s brief in Marugg I, supra, D072065 is denied.
3
of proof by Appellant, the court did not abuse its discretion (or otherwise err)
in the evidentiary rulings challenged on appeal.
Second, Appellant directs our attention to rulings of the court after
commencement of the proceedings in response to Appellant’s multiple
requests to substitute counsel and to continue the proceedings. She argues
that, in denying her initial request to substitute counsel—on the condition
that the hearing be continued for new counsel to prepare—and her multiple
requests for a continuance during the hearing, the court unlawfully infringed
on her right to counsel of choice and deprived her of the right to effective
assistance of counsel in the hearing that resulted in the order on appeal.
Appellant made these requests after more than eight months of proceedings
following remand and after the first day of the hearing in which the court had
issued several significant substantive rulings adverse to Appellant. As we
explain, given the timing of these requests and the history of these
proceedings, the court did not abuse its discretion in making the rulings
Appellant challenges on appeal.
Accordingly, we affirm the order denying Appellant’s motions to vacate
her conviction under section 1473.7(a)(2), and for a finding of factual
innocence under section 851.8, subdivision (d) (the Order).
I. FACTUAL AND PROCEDURAL BACKGROUND5
In June 2002, at a time when Appellant and Jose Luis Alvarez were
married, they and several others were charged by indictment with 24 counts:
5 Based on the briefing, the parties are familiar with the details of the
17 years between the issuance of the June 2002 indictment and the
September 2019 Order. Thus, in this part of the opinion, we will set forth
only the general background. For each issue in the Discussion, post, we will
provide additional facts necessary for an understanding and resolution of the
issue.
4
three counts of conspiracy to commit misrepresentation of a fact (§ 182, subd.
(a)(1); counts 1, 10, and 16); 15 counts of misrepresentation of a fact (Ins.
Code, § 11880, subd. (a); counts 2-9, 11-15, 23-24); one count of conspiracy to
fail to file a tax return in a timely manner (§ 182, subd. (a)(1); count 20); and
five counts of failure to file a tax return in a timely manner (Unemp. Ins.
Code, § 2117.5; counts 17-19, 21-22). The indictment further alleged that, in
the commission of counts 1, 10, 16, and 20, the loss exceeded $150,000
(§ 12022.6, subd. (a)(2)). These charges all related to J. Alvarez Construction,
which Appellant testified was “the community property business” that she
and Alvarez “built” during their marriage.6
Appellant and Alvarez separated in February 2003.
More than a year and a half after issuance of the indictment, in
December 2003, Appellant and Alvarez each pled guilty to count 1—
conspiracy to misrepresent a fact material to the determination of the cost of
workers’ compensation insurance issued or administered by the State
Compensation Insurance Fund (SCIF) for the purpose of reducing the cost of
the insurance (§ 182, subd. (a)(1); Ins. Code, § 11880, subd. (a)).7 Appellant
6 In addition, during 2001, Appellant worked at the offices of Alvarez
Construction; and in January 2004, Appellant testified that “[t]he gross
receipts for [Alvarez Construction] were almost $12 million dollars during the
year 2002” and “2003 was also a very good year.”
7 Count 1 of the June 2002 indictment charged as follows:
“On or about February 1, 2000, [codefendant 1, Alvarez, Appellant, and
codefendant 2] did unlawfully conspire together and with another person and
persons whose identity is unknown to commit the crime of Misrepresentation
Of A Fact, [Insurance Code section ]11880[, subdivision ](a), in violation of
Penal Code section 182[, subdivision ](a)(1).
“The object of the conspiracy, [codefendant 1, Alvarez, Appellant and
codefendant 1] agreed that Alvarez would pay [codefendant 1] an amount
5
pled to a misdemeanor, Alvarez pled to a felony, and at the request of the
prosecutor the court dismissed the remaining 23 counts against each.
In Marugg I, supra, D072065, we summarized the conspiracy to which
Appellant pled as follows:
“Alvarez Construction had employees; as a result,
Alvarez Construction owed both wages to its employees
and premiums for related workers’ compensation
insurance; with regard to the majority of Alvarez
Construction employees, rather than pay these wages and
premiums, in 2000, Alvarez or [Appellant] wrote checks to
codefendant 1, who purported to act as a subcontractor
responsible for Alvarez’s payroll; codefendant 1 would
negotiate the checks, obtain cash, and pay these Alvarez
that would allow [codefendant 8] to pay Alvarez's employees cash wages and,
at the same time, [codefendant 1] would make a profit on thos[e] wages for
paying Alvarez's employees in cash; thereby allowing Alvarez to save money
by filing false reports with State Compensation Insurance Fund indicating
Alvarez had no payroll. This was done for the purpose of unlawfully reducing
the amount of Alvarez’s Workers’ Compensation Insurance premium.
“Thereafter, in the County of San Diego, State of California, pursuant
to the above conspiracy and in furtherance of the objects thereof:
“Overt Act No. (01): On or about February 1, 2000, [Appellant or
Alvarez] wrote bank checks for the amount of Alvarez’s payroll being handled
by [codefendant 1].
“Overt Act No. (02): The above checks were provided to [codefendant 1]
or [codefendant 8] by [Appellant] or [Alvarez].
“Overt Act No. (03): [Codefendant 1] would cash the checks, obtaining
cash money.
“Overt Act No. (04): [Codefendant 1] would pay Alvarez's employees
cash wages.
“And it is further alleged that in the commission and attempted
commission of the above offense, the said defendants, [codefendant 1,
Alvarez, Appellant, and codefendant 8] did take, damage and destroy
property, with the intent to cause such taking, damage and destruction, and
the loss exceeds one hundred fifty thousand dollars ($150,000), within the
meaning of Penal Code section 12022.6[, subdivision ](a)(2).” (Some
capitalization omitted.)
6
Construction employees in cash; by not including the cash
wages paid to its employees through codefendant 1, Alvarez
Construction would underreport its true payroll to SCIF,
which administered workers’ compensation insurance;
by underreporting its payroll, Alvarez Construction was
underpaying workers’ compensation insurance premiums
for its employees; and by underpaying insurance premiums,
Alvarez Construction’s overhead was lower, which allowed
Alvarez Construction to be more competitive for bids on
jobs, while increasing profits.”
Appellant testified that the factual bases of her plea were contained in the
transcript from the grand jury proceedings that resulted in the indictment
and in discovery later provided by Respondent.
Immediately following Appellant’s December 2003 change of plea, the
court sentenced Appellant as follows: One day in custody, three years’
probation, payment of certain fines, and “joint[ ] and several[ ]
responsibil[ity] for restitution . . . which is to be paid by the defendant’s
husband, co-defendant Jose Alvarez.”
Three years later, in January 2007, Appellant filed a petition for
expungement of the conviction, citing section 1203.4a. Upon the required
showing, section 1203.4a allows a defendant to withdraw a guilty plea and
the court to dismiss the accusatory pleading. Although the matter was set for
hearing, Appellant did not pursue it.
In September 2012, Appellant wrote a letter to the district attorney,
asking that the People (Respondent) stipulate to allow her to withdraw her
plea. The letter set forth a lengthy factual basis in support of the request and
included a copy of the 2002 grand jury transcript. The next month,
Respondent declined Appellant’s request.
More than 12 years after entry of the judgment against her, in
July 2016 Appellant filed a petition for writ of error coram nobis, seeking to
7
withdraw her guilty plea and to dismiss the charges.8 In support of the
petition, Appellant included a statement of facts, a memorandum of points
and authorities, and evidence, including a declaration from Appellant and
numerous exhibits regarding the underlying facts. She summarized her
position as follows: “Due to a series of improper forces beyond [Appellant’s]
control, she was led to plead guilty to an offense she did not commit.”
Appellant further explained that, “due to the complexity of the issues,
including an analysis by a forensic accountant, which was not complete until
approximately [early 2016],” she “has only recently become aware of the full
extent of the facts showing a deprivation of her rights to due process and
effective counsel.”
At the end of 2016, Appellant filed a “supplement” to her petition, by
which she moved for two orders: (1) to vacate her conviction pursuant to
section 1473.7(a)(2); and (2) to find her factually innocent of the charge
pursuant to section 851.8, subdivision (d).9 (See fns. 2, 3, ante.) In this
supplement, Appellant explained that she “began to uncover evidence
revealing her innocence in 2011,” but that “the resulting investigation” was
8 In one section of the petition, Appellant also sought postconviction
relief under section 1473.6, which allows for a judgment to be vacated where
the defendant is no longer unlawfully imprisoned or restrained and there is a
sufficient showing of newly discovered evidence of fraud, false testimony, or
specified misconduct by “a government official” in the criminal proceedings
that resulted in the defendant’s conviction. (§ 1473.6, subd. (a).) There are
no issues on appeal related to this claim.
9 Appellant acknowledged that her “situation does not immediately fall
under [section 851.8,] subdivision (d) because a conviction still exists,”
contending instead that, if the court grants her section 1473.7 motion, then
“the conviction will no longer exist.”
8
not completed until July 2016 “due to the complexity of the issues.” (Italics
added.)
The parties submitted numerous rounds of briefs, declarations, and
exhibits. After considering the evidence and arguments, the trial court
denied both the petition for writ of error coram nobis and the section 1473.7
motion to vacate the conviction. Appellant brought and the trial court denied
a motion for reconsideration. Appellant appealed. In Marugg I, supra,D072065, this court affirmed the denial of the petition,10 reversed the denial
of the section 1473.7 motion, and remanded with directions for the court to
hold a hearing on Appellant’s section 1473.7 motion and to specify the basis
for its ruling as required by former subdivisions (d) and (e)(2) of
section 1473.7.
Jurisdiction for the remanded proceedings—i.e., the hearing on
Appellant’s section 1473.7 motion—vested in the trial court in October 2018.
Between January 2019 and mid-August 2019, there were at least seven
status conferences. The hearing on remand consisted of three court days of
motions in late August 2019 and two court days of evidence, oral argument,
and the court’s ruling in mid-September 2019.
During the three days of motions, the court entered the two rulings
that are Appellant’s principal focus in this appeal. The court ruled that, for
10 In Marugg I, supra, D072065, we concluded the trial court did not err
in ruling that Appellant failed to show that, in the exercise of due diligence,
Appellant could not have discovered the facts on which she relied
substantially earlier than the filing of her July 2016 petition. (See People v.
Kim (2009) 45 Cal.4th 1078, 1093 [coram nobis petitioner “ ‘ “must show that
the facts upon which he relies were not known to him and could not in the
exercise of due diligence have been discovered by him at any time
substantially earlier than the time of his motion for the writ” ’ ”].)
9
purposes of presenting newly discovered evidence of her actual innocence,
Appellant’s claims of ineffective assistance of counsel at the time of her plea
in 2003 would not be admissible “unless and until” either Respondent argues
or the court otherwise considers Appellant’s change of plea as evidence that
Appellant was not innocent of the crime for which she was convicted. (Italics
added.) The court also ruled that, subject to Appellant’s proffers of specific
items of evidence, to be “newly discovered” for purposes of
section 1473.7(a)(2), “the evidence needs to be something that was not
discovered or could not reasonably have been discovered with due diligence
prior to the entry of judgment . . . [on] December[ 8,] 2003.”
During the second day of argument on the motions, and again on the
morning of the first day of presentation of evidence a few weeks later,
Appellant moved to substitute counsel—i.e., to replace retained attorney
James Byrnes with retained attorney Saman Nasseri11—and, on that basis,
to continue the hearing. The court’s rulings on these requests form the bases
of Appellant’s secondary focus in the appeal. On both occasions, the court
denied the request to continue the hearing. At the August hearing (motions),
the court denied Appellant’s motion to substitute Nasseri for Byrnes, but
allowed Nasseri to assist Byrnes. At the September hearing (evidence), the
court found “no good cause” to continue the hearing, expressly declining to
relieve Byrnes, but allowing Appellant to discharge Byrnes if that was her
choice.
11 In the post-conviction proceedings, Byrnes had represented Appellant
since at least July 2016, when he filed and prosecuted the petition for writ of
error coram nobis, through the August 2019 section 1473.7(a)(2) proceedings
on remand. Nasseri was “not prepared to proceed” when Appellant first
requested the substitution, having been retained only two days earlier.
10
During the September hearings at which the court considered evidence,
the court heard testimony from two witnesses, admitted into evidence four
exhibits, and took judicial notice of six documents. Following the argument
of counsel and a recess, the court ruled from the bench. The court denied
Appellant’s section 1473.7 motion to vacate the conviction and Appellant’s
section 851.8, subdivision (d) motion for a finding of factual innocence.12
II. DISCUSSION
Appellant presents what she describes as two “set[s] of errors” that
require a reversal of the Order. In the first set, Appellant argues that the
trial court erred “by categorically excluding: (1) all evidence of ineffective
assistance of trial counsel [in the criminal proceedings that resulted in
Appellant’s conviction]; and (2) any and all evidence pointing towards
[Appellant’s] innocence pre-dating December 2003 [when Appellant pled
guilty], along with any evidence derivative therefrom, including evidence
explaining why [Appellant] pled guilty despite her innocence.” In the second
set of claimed errors, Appellant argues that the trial court erred in its
“rulings in response to her request to substitute retained, post-conviction
counsel, including the . . . denial of [her] initial request for a full substitution
of counsel and her multiple requests for a continuance for new counsel to
prepare.”
12 The court stated the basis for its ruling as required by former
subdivisions (d) and (e)(2) of section 1473.7 (and this court’s remand in
Marugg I, supra, D072065). Because Appellant’s arguments on appeal are
limited to evidentiary rulings during the motion proceedings and rulings
related to substituting counsel and continuing the hearing, there is no need
to set forth the court’s detailed findings and conclusions at the close of the
hearing.
11
As we explain, Appellant did not meet her burden of establishing that
the trial court abused its discretion in excluding specified evidence at the
section 1473.7(a)(2) hearing or in denying Appellant’s requests during the
proceedings to substitute new counsel and to continue the hearing. As we
further explain, Appellant did not establish an entitlement to relief based on
what she contends was ineffective assistance of her trial attorney during the
section 1473.7(a)(2) hearing. Accordingly, Appellant did not meet her burden
of establishing reversible error, and we will affirm the Order.
A. Law
Section 1473.7(a)(2) provides in pertinent part that “[a] person who is
no longer in criminal custody may file a motion to vacate a conviction” on the
basis that “[n]ewly discovered evidence of actual innocence exists that
requires vacation of the conviction or sentence as a matter of law or in the
interests of justice.” (See fn. 2, ante.) A motion based on newly discovered
evidence must be filed “without undue delay from the date the moving party
discovered, or could have discovered with the exercise of due diligence, the
evidence that provides a basis for relief under this section.” (§ 1473.7,
subd. (c).) For purposes of section 1473.7(a)(2), “newly discovered evidence”
means “testimony, writings and similar things described in Evidence Code
section 140 (which defines ‘evidence’), discovered after trial or judgment, and
that with reasonable diligence could not have been discovered earlier.” (People
v. Perez (2020) 47 Cal.App.5th 994, 999, citing §§ 1181, subd. 8, 1473,
subd. (c)(3)(B), 1473.6, subd. (b); Evid. Code, § 140.) The defendant has the
burden of establishing, by a preponderance of the evidence, the grounds for
relief under section 1473.7(a)(2). (§ 1473.7, subd. (e)(1); Perez, at p. 997.)
12
The parties disagree as to the standard of review to be applied on
appeal.13 Appellant argues that, under Vivar, supra, 11 Cal.5th 510,
independent review applies to all issues. By contrast, Respondent argues
that Vivar is inapplicable here, because it is limited to cases under
section 1473.7, subdivision (a)(1), and Appellant brought her motion under
section 1473.7, subdivision (a)(2).14 Instead, Respondent contends that the
issues in this appeal—which are limited to the admissibility of evidence, a
substitution of counsel, and a continuance of the proceedings—should be
reviewed for an abuse of discretion, as in any other appeal.
In Vivar, pursuant to section 1473.7, the defendant moved to vacate his
conviction principally based on his claim that he would never have entered
his plea had he understood that it would result in his deportation. (Vivar,
supra, 11 Cal.5th at pp. 520-521.) The Supreme Court began with the
assumption that the defendant’s trial attorney had provided ineffective
13 After the completion of briefing in April 2021, the Supreme Court
issued its opinion in People v. Vivar (2021) 11 Cal.5th 510 (Vivar), which
discusses the standard that should be applied to appellate review of trial
court rulings of prejudice under section 1473.7, subdivision (a)(1). (Vivar, at
pp. 523-528.) We requested and received supplemental briefing regarding the
potential application of Vivar to the issues in this appeal.
14 Section 1473.7, subdivision (a)(1), under which Vivar, supra, 11 Cal.5th
510, was decided, allows a person no longer in custody to seek to vacate a
conviction upon a sufficient showing of “prejudicial error damaging the
moving party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences.”
Section 1473.7(a)(2), under which Appellant sought to vacate her conviction
in this case, allows a person no longer in custody to seek to vacate a
conviction upon a sufficient showing of “[n]ewly discovered evidence of actual
innocence . . . that requires vacation of the conviction . . . as a matter of law
or in the interests of justice.”
13
assistance of counsel in failing to properly advise the defendant as to the
immigration consequences of his plea. (Id. at p. 521.) The court then
proceeded to clarify the standard for appellate review of prejudice findings for
motions brought pursuant to section 1473.7, subdivision (a)(1)—holding that
the independent standard of review applied.15 (Vivar, at pp. 523-525.)
Under this standard, “ ‘an appellate court exercises its independent judgment
to determine whether the facts satisfy the rule of law.’ ” (Id. at p. 527.)
Contrary to Appellant’s position, Vivar, supra, 11 Cal.5th 510, does not
suggest that we independently review the rulings the trial court made during
the hearing regarding admissibility of evidence, substitution of counsel, or
continuation of the proceedings. Vivar is limited to the review of the lower
court’s determination of prejudice. Accordingly, we will discuss the
applicable standard of review, post, as we analyze each issue.
On appeal, we presume the Order is proper, and Appellant bears the
burden of establishing reversible error. (People v. Tousant (2021) 64
Cal.App.5th 804, 815, fn. 3.)
15 The court reasoned that a standard of independent review was “most
consistent with section 1473.7’s purpose” of offering relief to those “who
suffered ‘prejudicial error’ but are ‘no longer imprisoned or restrained’ and for
that reason alone are unable to pursue relief on habeas corpus.” (Vivar,
supra, 11 Cal.5th at p. 525.) That said, while appellate courts must give
“particular deference to factual findings based on the trial court’s personal
observations of witnesses,” appellate courts need not give substantial weight
to findings based on facts primarily presented from written evidence—as is
often the case in section 1473.7 proceedings. (Vivar, at pp. 524, 527-528.)
Under this standard, therefore, “it is for the appellate court to decide, based
on its independent judgment, whether the facts establish prejudice under
section 1473.7.” (Vivar, at p. 528, italics added.)
14
B. Analysis
1. Ineffective Assistance of Counsel in the Underlying Criminal
Case; Evidence in Existence as of December 2003
For purposes of analyzing whether she presented newly discovered
evidence of actual innocence as required by section 1473.7(a)(2), Appellant
argues that her attempt to establish the ineffective assistance of her trial
attorney at the time of her December 2003 guilty plea, Gustav Bujkovsky,
was relevant to establishing “why [Appellant] had not uncovered the evidence
of her innocence . . . and/or why she did not immediately appeal her case
based on this evidence.” Appellant argues that, as a result of the trial court’s
“blanket” or “categorical[ ]” exclusion of evidence of her trial attorney’s
ineffectiveness at and after the time of her 2003 guilty plea, she suffered
prejudice. More generally, she contends that the court erred in its “blanket”
or “categorical[ ]” exclusion of evidence that was in existence at the time of
her guilty plea in 2003, including evidence derived therefrom.
a. Bujkovsky’s Ineffective Assistance16
Appellant’s principal argument on appeal is that the trial court erred in
excluding evidence of what Appellant contends was ineffective assistance of
counsel in the underlying criminal case.
i. Additional Background
In the underlying criminal proceedings, Bujkovsky represented
Appellant when she pled guilty in December 2003. In support of her
16 Respondent suggests that Appellant forfeited appellate review of the
court’s ruling regarding the admissibility of evidence of Bujkovsky’s alleged
ineffectiveness. According to Respondent, because Appellant acknowledged
that her contentions regarding Bujkovsky’s ineffectiveness did not directly
affect her guilt or innocence, Appellant forfeited appellate review of the issue.
15
section 1473.7(a)(2) claim of actual innocence, Appellant relied on what she
contended was Bujkovsky’s ineffective assistance in defense of the 2002
indictment that resulted in her 2003 guilty plea.
On appeal, Appellant relies on the allegations of her original
section 1473.7(a)(2) motion, which she filed as a supplement to her 2016
petition for writ of error coram nobis. In her opening brief, she contends that
her 2016 “original filing contained ample indications that: (1) Mr. Bujkovsky
held a simultaneous and continuing, conflicting duty of loyalty and
confidentiality to Alvarez Construction and/or Joe Alvarez, not only, at the
time of the underlying proceedings, but also, in the years following, and
(2) that this conflict actively interfered with his representation of [Appellant],
by, for example, leading him to, first, not provide discovery to [Appellant] or
explain to her the lack of evidence supporting her guilt, second, leading to his
ultimate failure to object to the issuance of joint and several liability [for
restitution] against her, despite the plea agreement to the contrary, and,
finally, leading him to fail to help [Appellant] file an earlier challenge to the
conviction.” (Sic.)
In support of these claims, Appellant relies on the following evidence:
the “original petition [for writ of error coram nobis] noting that
Mr. Bujvovksy [sic] had hidden the evidence, including the lack thereof, from
[Appellant], as he was working on behalf of Alvarez’ Construction’s interests,
not [Appellant’s]”; a 2005 declaration of Bujkovsky, in which he testified that
that “he was the attorney for J. Alvarez Construction, Inc. ‘on various
matters,’ beginning in March 2002 and continuing at least through June
2005”; “[Appellant’s 2003] plea agreement promising restitution would not be
We disagree. While Appellant’s concession may be considered on appeal, it is
not a basis on which to have forfeited appellate review.
16
derived from [Appellant’s] portion of the community property”; Bujkovsky did
not object when, as part of her sentence, the trial court “order[ed] joint and
several restitution”; “Bujkovsky’s 2005 declaration to collect over $150,000 in
legal fees, for services rendered to Alvarez Construction between 2003 and
2005, against . . . community property”; a “2008 letter from [an identified
attorney] asserting Mr. Bujkovsky was Joe Alvarez’ personal attorney”; a
“proffer [on behalf of Appellant at the section 1473.7(a)(2) hearing] that [a
different, identified attorney] would establish that [Appellant] did not have
access to Alvarez Construction’s records during the relevant time period”;17
and a “[July 2011] order summarily disbarring Mr. Bujkovsky after being
found to have committed a felony involving moral turpitude”—i.e.,
obstruction of justice in violation of title 18 United States Code section 1505.
(Sic.)
In a brief Appellant submitted shortly before the remanded
section 1473.7(a)(2) hearing, Appellant explained her reason for attempting
to introduce evidence of Bujkovsky’s ineffective assistance. In doing so,
Appellant expressly acknowledged: “[T]he ineffectiveness of her [former]
attorney, Gustav Bujkovsky, does not directly determine whether [Appellant]
was factually guilty or innocent.” (Italics added.) Nonetheless, with regard to
admissibility of evidence of ineffective assistance, Appellant argued: “The
State is expected to move to exclude any evidence of ineffective assistance of
counsel leading up to the time of [Appellant’s] guilty plea. . . .
[C]onsideration of that ineffectiveness is necessary to rebut one of the main
contentions of the State—that [Appellant] would not have pled guilty if she
17 By the conclusion of the proffer, Appellant withdrew this attorney as a
witness at the hearing.
17
were innocent. [¶] . . . [¶] IAC stemming from Bujkovsky’s representation of
[Appellant] is therefore directly relevant to the question of why she would
enter a guilty plea—which the State has made a central component of its
argument against innocence.” (Italics added.)
As Appellant anticipated, Respondent filed a motion to exclude
evidence or argument of Bujkovsky’s allegedly ineffective assistance. During
the first day of the section 1473.7(a)(2) hearing, based on the parties’ briefing,
the court explained its tentative thinking: “[T]he only relevance of the
ineffective assistance of counsel evidence would be to rebut an argument from
Respondent that [Appellant] admitted to her guilt through her change of
plea[;] . . . if the Court considers the change of plea as evidence of her guilt as
opposed to her actual innocence, . . . [Appellant] would rebut that with
evidence that the only reason she entered a change of plea was because of
ineffective assistance of counsel. If the Court were to exclude from its
consideration the change of plea form and not consider that as evidence of
guilt, then the ineffective assistance of counsel evidence would have no
relevance.” Following the argument of counsel and consistent with the
tentative, the court reserved ruling on Respondent’s motion “unless and until
evidence is introduced that [Appellant’s] admission of guilt and change of
plea are to be considered as evidence of guilt in the Court’s evaluation.” The
court confirmed this decision during the second day of the hearing.
On the fifth day of the hearing, after the close of Appellant’s
presentation of evidence, Respondent rested without presenting any evidence.
During closing argument, Respondent did not mention Appellant’s guilty plea
or, for that matter, any evidence of Appellant’s guilt. Respondent’s
presentation was limited to responding to the evidence on which Appellant
18
had relied during closing and arguing why it did not establish “actual
innocence” as required by section 1473.7(a)(2).
ii. Appellant Did Not Establish Reversible Error
Appellant describes the ruling at issue as the trial court’s “blanket,
exclusionary ruling[ ], categorically barring all evidence of [Bujkovsky’s]
ineffectiveness[.]” That is not an accurate description of the court’s ruling.
Prior to the presentation of evidence, the court twice ruled that such evidence
was not relevant “unless and until” Respondent or the court relied on
Appellant’s change of plea as evidence of guilt. In fact, Respondent presented
no evidence whatsoever; and in the court’s detailed oral ruling from the
bench, there is no mention of Appellant’s change of plea (or any other
evidence) as proof of Appellant’s guilt.
We are thus presented with reviewing a decision of the trial court that
sustained Respondent’s relevance objection to evidence of Bujkovsky’s
allegedly ineffective assistance. On appeal, Appellant argues that the
proffered evidence of Bujkovsky’s ineffective assistance was “highly relevant
to establishing why [she] had not uncovered the evidence of her innocence
(and the lack of evidence of her guilt) in existence at the time[.]”
We begin with the understanding that “all relevant evidence is
admissible” (Evid. Code, § 351), and relevant evidence is evidence “having
any tendency in reason to prove or disprove” a material fact in dispute (Evid.
Code, § 210). (E.g., People v. Morrison (2004) 34 Cal.4th 698, 724 (Morrison)
[“evidence possessing any tendency in reason to prove or disprove any
disputed material fact is relevant”].) Although a trial court has “broad
discretion” in determining the relevance of evidence, “it lacks discretion to
admit evidence that is irrelevant[.]” (Ibid.) The proponent of the excluded
evidence has the initial burden of establishing its relevance; and a trial court
19
properly excludes the evidence “when the proponent fails to make an
adequate offer of proof regarding [its] relevance or admissibility[.]” (Ibid.)
The trial court’s exercise of discretion in admitting or excluding evidence is
reviewed for abuse and will not be reversed “ ‘ “except on a showing the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Case
(2018) 5 Cal.5th 1, 46; see Cal. Const., art. VI, § 13; Evid. Code, § 354; Code
Civ. Proc., § 475 [appealable order cannot be reversed without showing that,
in the absence of the error, a different result would have been probable].)
Under both our state and federal constitutions, defendants charged
with crimes and facing the potential for a deprivation of liberty are
guaranteed “the right to the assistance of counsel unburdened by any
conflicts of interest,” which is a form of ineffective assistance of counsel.
(People v. Perez (2018) 4 Cal.5th 421, 435; see People v. Doolin (2009) 45
Cal.4th 390, 417 (Doolin).) Where, as here, the defendant claims that counsel
had a conflict of interest, “deficient performance is demonstrated by a
showing that defense counsel labored under an actual conflict of interest ‘that
affected counsel’s performance—as opposed to a mere theoretical division of
loyalties.’ ” (Doolin, at p. 417, quoting Mickens v. Taylor (2002) 535 U.S. 162,
171; accord, Perez, at p. 435.) Although there is a “presumption of prejudice
to conflicts of interest arising from an attorney’s concurrent representation of
adverse clients,” there nonetheless remains the “general requirement that a
defendant demonstrate outcome-determinative prejudice from a violation of
his state constitutional right to conflict-free counsel in order to obtain relief.”
(Doolin, at p. 420.)
Here, despite an opening brief in excess of 100 pages, Appellant does
not set forth what she contends the legal standards are for establishing what
20
she describes as Bujkovsky’s “conflicting duty of loyalty and confidentiality.”
At the end of a page-long string of citations to proffers of evidence in the
record on appeal, Appellant includes the reference: “e.g.[,] Flatt v. Superior
Court (1994) 9 Cal.4th 275, 284 [discussing the ‘per se’ rule that attorneys are
disqualified from simultaneously representing adverse interests].” Without
more—and Appellant does not present more—Appellant necessarily failed to
establish an actual conflict of interest. (See People v. Stanley (1995) 10
Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal argument with
citation of authorities on the points made. If none is furnished on a
particular point, the court may treat it as waived, and pass it without
consideration.’ ”]; Cal. Rules of Court, rule 8.204(a)(1)(B).)
In any event, even if we assume that Bujkovsky had a conflict of
interest—even one which, upon a sufficient showing would result in a
prohibition of simultaneous representation, and thus a disqualification,
without each client’s informed written consent18—the result would be no
different. In explaining how this conflict affected Bujkovsky’s performance
such that it resulted in outcome-determinative prejudice (see Doolin, supra,
45 Cal.4th at pp. 417, 420), Appellant tells us that, as a result of this conflict,
Bujkovsky failed to provide discovery to Appellant, to discuss the evidence
with Appellant, to object to the restitution order, and to help Appellant file an
earlier challenge to the conviction. However, none of these alleged failures
18 Former rule 3-310(C)(1) of the Rules of Professional Conduct, which
was in effect at the time of Appellant’s guilty plea in 2003, provided that,
without each client’s informed written consent, an attorney is precluded from
accepting or continuing representation of more than one client in a matter in
which the interests of the clients actually or potentially conflicted. (Fiduciary
Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465,
487-488; see Rules of Professional Conduct, rule 1.7.)
21
tends in reason to establish Appellant’s actual innocence, the disputed fact at
issue under section 1473.7(a)(2). The elements of the crime of conspiracy—
i.e., the crime to which Appellant pled guilty and, thus, the crime for which
Appellant was required to establish actual innocence for purposes of her
section 1473.7(a)(2) motion—are: (1) an agreement; (2) specific intent; (3) two
or more persons; (4) an unlawful object or means; and (5) an overt act.
(§§ 182, subd. (a)(1), 184; People v. Swain (1996) 12 Cal.4th 593, 600, fn. 1;
see CALCRIM No. 415.) None of the proffered evidence as to Bujkovsky’s
performance defeats an element of this crime; and Appellant does not suggest
a particular defense to this crime for which the proffered evidence might tend
in reason to establish. Indeed, this conclusion is consistent with Appellant’s
concession in the trial court that Bujkovsky’s “ineffectiveness . . . does not
directly determine whether [Appellant] was factually guilty or innocent.”
For the foregoing reasons, the trial court’s order excluding evidence of
Bujkovsky’s allegedly ineffective assistance—absent Respondent’s or the
court’s consideration of Appellant’s plea as evidence of guilt—was neither
arbitrary, capricious, nor patently absurd.19 Such evidence had no tendency
in reason to establish Appellant’s actual innocence. Accordingly, Appellant
did not meet her burden of establishing an abuse of discretion.20
b. Newly Discovered Evidence
As an argument related to Bujkovsky’s allegedly ineffective assistance
at the time of Appellant’s plea in 2003, Appellant contends that the court
19 Contrary to Appellant’s suggestion, why Appellant pled guilty is not
evidence that tends in reason to prove actual innocence—not without a
further proffer, in any event, and Appellant presented none.
20 Having found no abuse of discretion, we do not reach Appellant’s
arguments regarding due process or cumulative error.
22
erred in excluding—as not “newly discovered” for purposes of
section 1473.7(a)(2)—evidence in existence at the time of her plea, as well as
evidence derived therefrom.
During the first day of the section 1473.7(a)(2) hearing, when
considering what evidence might be admissible as “newly discovered” for
purposes of section 1473.7(a)(2), the court first ruled that “at the very least
the evidence needs to be something that was not discovered or could not
reasonably have been discovered with due diligence prior to the entry of
judgment . . . [on] December[ 8,] 2003.” The court nonetheless told the
parties this was not a final decision. Depending on the evidence being
proffered, the court would consider a later cutoff date.
Consistent with her burden in the trial court (§ 1473.7, subd. (e)(1);
Perez, supra, 47 Cal.App.5th at p. 997), Appellant identified and proffered
certain evidence that was otherwise subject to exclusion based on the court’s
tentative cutoff date of December 2003. According to Appellant, although the
proffered evidence was in existence (or derived from evidence in existence) at
the time of the underlying judgment, it was nonetheless “newly discovered”
for purposes of section 1473.7, subdivision (c). The court considered the
proffers and the positions of the parties as to at least 23 items before ruling
on the admissibility of each, only some of which involved the issue of whether
the evidence was newly discovered.21
21 The court also left open the possibility that, during the evidentiary
portion of the proceedings, Appellant could present additional evidence, so
long as she was able “to show how it’s newly discovered with due diligence.”
For these reasons, Appellant’s characterization of the court’s ruling as a
“blanket” or “categorical[ ]” exclusion of all evidence in existence as of the
date of the judgment is once again neither accurate nor fair.
23
Initially, Appellant contends the trial court’s rulings were premised on
the “flawed inference” that just because the proffered evidence was in
existence, Appellant “had access to this information.” More specifically, she
argues that, because Bujkovsky’s assistance was ineffective, the court erred
in assuming she had access to the evidence. We disagree with Appellant’s
contention that the court’s “inference” was erroneous. Section 1473.7,
subdivision (c) does not require that the section 1473.7 motion be filed
without undue delay from actual discovery of the new evidence. The statute
requires only that the motion be filed without undue delay from the time
when the defendant “could have discovered [the new evidence] with the
exercise of due diligence.” (§ 1473.7, subd. (c), italics added.) Here, to the
extent the court excluded any proffered evidence on the basis that it was in
existence at the time of the December 2003 judgment, the court heard the
positions of both parties—including Appellant’s specific argument that,
because of Bujkovsky’s ineffective assistance, she did not have access to the
evidence—and found that the evidence was “available” to Appellant. For
purposes of section 1473.7, subdivision (c), this includes evidence “available”
to Appellant had she exercised due diligence.
We now consider each of the five proffers that Appellant discusses on
appeal.
First, Appellant refers us to proffered evidence from the grand jury
proceedings in 2002. Here, the court ruled that the evidence presented to the
grand jury was available to Appellant “no later than early July 2002.”
(Citing Marugg I, supra, D072065.) On appeal, Appellant relies on
Bujkovsky’s ineffective assistance as an excuse for the delayed discovery; but,
as we have just concluded, the court did not err in ruling that Bujkovsky’s
allegedly ineffective assistance did not affect Appellant’s responsibility to
24
demonstrate due diligence.22 In any event, the record discloses that, in fact,
Appellant not only had a copy of the transcript of the grand jury proceedings
as early as September 2012, but she even forwarded a copy to Respondent
(asking that Respondent stipulate to allowing her to withdraw her plea).
Second, Appellant refers us to proffered expert evidence from a forensic
accountant, Robert Taylor, whose testimony would have been based on the
evidence presented to the grand jury. According to Appellant, Taylor would
testify that “nothing in the paperwork, upon which the grand jury testimony
was based, pointed towards any unlawful scheme of which [Appellant] had
knowledge.”23 Initially, we observe that Appellant did not retain the forensic
accountant until November 2015; this was more than three years after
22 In addition, in Marugg I, supra, D072065, we expressly noted that, in
the 2017 proceedings underlying that appeal, “[Appellant] did not tell the
trial court the date on which she became aware of what she now contends is
biased or false grand jury testimony.” Nonetheless, in the remanded
proceedings, when presented with the same issue, Appellant chose not to
provide this information.
23 The court also excluded the proffered expert testimony on two
additional grounds, neither of which Appellant challenges on appeal:
(1) Taylor’s opinions “do not go to actual innocence but rather to an
accounting error that he claims [occurred] in the application of restitution
payments”; and (2) Taylor, whose expertise was in the field of business
valuations, was not qualified to give the opinions being offered regarding
fraud. In this latter regard, we note that Taylor’s assumptions in support of
his opinion included the understanding that Appellant pled guilty to two
counts—including “one count of Insurance Code 11880(a)”—which is not
correct. Insurance Code section 11880 deals with the crime of workers’
compensation insurance fraud; however, Appellant pled guilty only to
conspiracy to commit insurance fraud. The elements of the two crimes are
considerably different; for purposes of Appellant’s plea, conviction, and
sentence, there is no requirement of evidence that Appellant committed
fraud. (Compare § 182, subd. (a)(1) with Ins. Code § 11880, subd. (a).)
25
Appellant had the grand jury testimony and 12 years after Appellant pled
guilty. Furthermore, since the court did not err in ruling that Appellant
failed to exercise due diligence in obtaining the evidence presented to the
grand jury in 2002, the court did not err in excluding the accountant’s
opinions based on that evidence.
Third, Appellant refers us to proffered testimony from Kathy Bradley,
described by Appellant as “the prosecution’s auditor and grand jury witness”
in 2002. According to Appellant, had the proffered evidence been admitted
and credited, it would have impeached Bradley’s grand jury testimony.
Appellant misrepresents the record in arguing that the court excluded
evidence from Bradley based on whether it was newly discovered. In fact, the
court excluded this evidence on the basis that Appellant had not provided a
sufficiently detailed proffer.
Fourth, Appellant refers us to proffered evidence from Gary Helson,
described by Appellant as “the prosecution’s investigator” of an internal
investigation by the district attorney’s office. Like the court’s ruling as to
Bradley, the court excluded evidence from Helson on the basis that the
proffer did not include sufficient detail—not on the basis of when Appellant
discovered the evidence she proffered.
Finally, Appellant refers us to proffered evidence from a specified
attorney, Timothy Sullivan. According to the proffer, Sullivan was an
attorney who represented Alvarez Construction and would testify as to “the
role of [Appellant] in the business itself in that she did not have any
corporate officer or other designations that would give her access to the
information that was [the basis for the indictment].” Again Appellant
misrepresents the record when she tells us that the court excluded this
26
evidence on the basis it was not newly discovered. In fact, Appellant
withdrew Sullivan from her witness list during argument on the motions.
Incorporating the legal authorities regarding the standard of review of
rulings regarding the admissibility of evidence discussed at part II.B.1.a.ii.,
ante, we have no difficulty concluding that the trial court did not err in ruling
that the evidence from the grand jury proceedings in 2002 and from Taylor’s
testimony (based on the evidence from the grand jury proceedings) was not
relevant.24 Because this evidence has no tendency in reason to establish
that Appellant had “newly discovered” evidence of actual innocence for
purposes of her section 1473.7(a)(2) motion (including whether she exercised
due diligence in discovering the evidence), Appellant did not meet her burden
of establishing that the court’s ruling was arbitrary, capricious, or patently
absurd. Accordingly, Appellant did not meet her burden of establishing an
abuse of discretion.25
2. Substitution of Counsel & Continuance of the Hearing
Appellant next argues that the trial court erred in denying her initial
request to substitute counsel during the hearing—on the condition that the
hearing be continued for new counsel to prepare26—and her multiple
24 Likewise, although not argued by the parties, we have no difficulty
concluding that, in excluding the evidence from Bradley, Helson, and
Sullivan, the trial court did not err in ruling that Appellant failed to make an
adequate offer of proof. (See Morrison, supra, 34 Cal.4th at p. 724 [trial court
properly excludes evidence where proponent fails to make adequate offer of
proof as to relevance].)
25 Again having found no abuse of discretion, we do not reach Appellant’s
arguments regarding due process or cumulative error.
26 At no time did Appellant ask that the court allow Nasseri to be
substituted for Byrnes without a continuance for Nasseri to prepare.
27
requests for a continuance during the hearing. This error, according to
Appellant, prejudiced her by infringing on her right to counsel of choice and
depriving her of the right to effective assistance of counsel during the
hearing.
a. Additional Background
Attorney Byrnes represented Appellant in 2016 and, on her behalf
prepared, filed, and prosecuted both the petition for writ of coram nobis and
the section 1473.7(a)(2) motion. Different counsel represented Appellant in
her appeal from the denial of the petition and motion. (Marugg I, supra,D072065.) After jurisdiction returned to the superior court with directions to
conduct the section 1473.7(a)(2) hearing at issue in this appeal, Byrnes again
represented Appellant as of the first court appearance. Byrnes represented
Appellant at all seven status conferences between January 2019 and June
2019. At the May 9 status conference, the court set August 19 as the date for
motions for the section 1473.7(a)(2) hearing; at the June 28 status conference,
the court confirmed August 19 as the date for hearing motions and set
September 16 as the date for hearing evidence; and on August 19, the court
continued the motions hearing until August 23 and confirmed the
September 16 date for hearing evidence.
On the first day of motions, August 23, the court issued a number of
rulings, including the two principal rulings Appellant challenges in this
appeal, discussed at part II.B.1., ante. At the end of the first day, the court
clearly and unmistakably told Byrnes that it would not allow further
continuances for the purpose of further research or preparation.
At the beginning of the second day of motions, Appellant moved to
substitute counsel. She asked to replace Byrnes with Attorney Nasseri on the
condition the court continue the section 1473.7(a)(2) hearing. Nasseri
28
explained, “I am not prepared to proceed today”; “I was recently retained as
of [two days ago,] and I have informed both Mr. Byrnes and [Appellant] that
any substitution would be contingent on the Court allowing me time to
prepare the case and being amenable to moving dates to allow me to prepare
for the case.” More specifically, Nasseri asked that the continued hearing on
the motions be set for September 19 and that the evidentiary hearing be
continued until a date between October 28 and November 12. The only
comments from or representations regarding Byrnes were that the current
proceedings were “the third difficult hearing” he had that week and that he
lacked energy.
The court reminded counsel and the parties that they were “in the
middle” of the section 1473.7(a)(2) hearing, “which is essentially our trial for
purposes of the limited jurisdiction this Court has” pursuant to the remand in
Marugg I, supra, D072065. The court further reminded counsel and the
parties that they had had over three years to prepare since the filing of the
section 1473.7(a)(2) motion in 2016 and over a year since the remand order in
Marugg I, supra, D072065, in 2018.
Given the history of the section 1473.7(a)(2) proceedings and the timing
of the motion—i.e., almost three years after the filing of the
section 1473.7(a)(2) motion; a year after the opinion in Marugg I, supra,
D072065; more than three months after the court set the date for hearing
motions; and the day after adverse rulings on evidentiary motions—the court
explained: “[T]he court may deny a defendant’s motion to discharge retained
counsel if discharge . . . would result in a disruption of the orderly processes
of justice, unreasonable under the circumstances of the particular case.”
(Citing People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz).) Given this standard, the
court advised Nasseri (and Appellant) that it “has some concerns . . . as to
29
delay tactics and manipulation of the court.”27 After listening to argument,
the court told Nasseri that it was “not asking for any privileged information
in open court,” instead offering him the opportunity “to have some sort of in
camera hearing if there’s some reason that you feel at this stage there’s
justification for the substitution of counsel other than to delay the
proceedings.” (Italics added.) The court also offered to allow Nasseri to
associate in as co-counsel with Byrnes, “so that we would not have to delay
the proceedings.”
After taking a break to allow Appellant, Nasseri, and Byrnes to confer,
Nasseri made no further offer of proof and—with Appellant’s authorization—
accepted the court’s offer to allow him to associate in as co-counsel.
The court assumed without deciding that Appellant had a right to the
assistance of retained counsel of choice. Then, after expressly “balancing
[Appellant’s] interest in counsel of choice against the disruption flowing from
the substitution of counsel at this point,” the court denied Appellant’s request
for a continuance of the proceedings and the absolute substitution of counsel.
In support of its ruling, the court found as follows: “The Court is concerned
that this motion is being brought essentially midway through the Court’s
adjudication of the merits of the [section 1473.7(a)(2) motion] in order to get a
second bite at the apple, essentially, and to relitigate and reargue everything
before the Court, which is an improper purpose; however, to the extent that
[Appellant’s] interest can still be satisfied through association of counsel
without delaying the Court’s proceedings, . . . the Court will allow
Mr. Nasseri to be counsel of record, along with Mr. Byrnes.” (Italics added.)
27 In addition to the timing, Appellant gave Respondent no notice that she
was bringing a motion to substitute counsel.
30
At the end of the second day (Aug. 27), Nasseri renewed his motion for
a continuance. The court denied the request.
Weeks later, shortly after the beginning of the first day of the
evidentiary portion of the section 1473.7(a)(2) hearing (Sept. 16), Appellant
personally made an oral motion to substitute counsel. The court noted that it
had already “essentially granted that motion at the previous hearing by
allowing [Nasseri] to substitute in.” Nasseri clarified that Appellant’s
request was for a continuance so that he could “do a diligent investigation
and present the documents properly to the Court.” After listening to the
argument of counsel, the court deemed Appellant’s request an oral motion for
“yet another” continuance of the hearing and denied the motion, finding “no
good cause.” Nonetheless, the court expressly gave counsel the opportunities:
(1) to present in camera privileged communications related to Byrnes’s
representation of Appellant, if necessary; and (2) to request additional time
for research, upon a sufficient showing. Nasseri did neither.
b. Analysis
In response to criminal charges, a nonindigent criminal defendant has
due process and Sixth Amendment rights to retained counsel of the
defendant’s choice and may discharge retained counsel at any time with or
without cause. (People v. Verdugo (2010) 50 Cal.4th 263, 310-311 (Verdugo);
People v. Lara (2001) 86 Cal.App.4th 139, 152 (Lara).) That is because the
right to counsel of choice includes not only the defendant’s choice of new
counsel, but also the defendant’s decision to discharge previously retained
counsel. (Ortiz, supra, 51 Cal.3d at p. 983.) Notably, “the Sixth Amendment
applies only to ‘criminal prosecutions,’ ” and a due process right to counsel
applies only upon a showing of a statutory right to counsel or the potential for
“ ‘a significant deprivation of liberty.’ ” (Conservatorship of David L. (2008)
31
164 Cal.App.4th 701, 710 (David L.); accord, People v. Fryhaat (2019) 35
Cal.App.5th 969, 980 [“ ‘neither the federal nor the state Constitution
mandates an unconditional right to counsel to pursue a collateral attack on a
judgment of conviction’ ”].) As we explain, a section 1473.7(a)(2) motion is
neither a response to a criminal prosecution nor a proceeding that involves
the potential for a deprivation of liberty; it is a motion by an out-of-custody
convicted defendant who seeks to collaterally attack the conviction and
ameliorate its effects. Accordingly, a section 1473.7(a)(2) motion does not
implicate a statutory right to counsel.
A section 1473.7(a)(2) motion is a statutory post-conviction procedure
initiated by the defendant which, if successful, will result in the prior
conviction being vacated. Section 1473.7(a)(2) authorizes this relief only
upon the defendant’s showing, by a preponderance of the evidence, of newly
discovered evidence of the defendant’s actual innocence. Significantly,
Appellant presents no authority for her presumption that she has a due
process or Sixth Amendment right to retained counsel of her choice in such a
proceeding.
Appellant’s reliance on David L., supra, 164 Cal.App.4th 701, is
misplaced. In David L., the court concluded that a proposed conservatee has
a right to counsel (and, thus, a right to effective assistance by counsel) only
because the proposed conservatee has a statutory right to counsel under
Welfare & Institutions Code section 5365. (David L., at p. 710 [“Section 5365
provides in pertinent part: ‘The court shall appoint the public defender or
other attorney for the . . . proposed conservatee within five days after the
date of the petition.’ ”].) By contrast, section 1473.7(a)(2) does not provide a
32
statutory right to counsel, Appellant does not suggest such authority, and our
independent research has not disclosed any.28
Thus, we proceed with the understanding that, under the
circumstances here, Appellant had no constitutional or statutory right to
counsel at the section 1473.7(a)(2) hearing. She was not in custody, she was
able to meet (and, in fact, met) with counsel of her choice, and she attended
the hearing with—and was able to assist (and, in fact, assisted)—her
counsel.29
We review the trial court’s denial of a motion to relieve retained
counsel for an abuse of discretion. (See Verdugo, supra, 50 Cal.4th at p. 311
28 In People v. Rodriguez (2019) 38 Cal.App.5th 971, disapproved on a
different ground in Vivar, supra, 11 Cal.5th at page 526, footnote 4, a
noncitizen defendant moved to vacate his conviction under section 1473.7,
subdivision (a)(1), on the basis that prejudicial error had affected his ability
to understand the immigration consequences of his plea. (Rodriguez, at
pp. 974-975.) There, the indigent defendant was in federal detention at the
time of the section 1473.7 hearing, and no counsel had been appointed for
him. (Id. at pp. 980-981.) Even though former section 1473.7 did not provide
a statutory right to counsel, the trial court denied the defendant’s right to
have counsel present because the statute required a hearing and authorized
the court to hold the hearing without the personal presence of the defendant
“ ‘if counsel for the moving party is present.’ ” (Rodriguez, at p. 980, quoting
former § 1473.7, subd. (d).) Since the defendant was not personally present
(and could not have attended, as he was in federal custody), the trial court
had erred by proceeding with the required hearing without appointing
counsel. (See Rodriguez, at pp. 980-984.) For the reasons we explain in the
text, post, Rodriguez is distinguishable from the present case.
29 Our ruling regarding the right to counsel in section 1473.7(a)(2)
proceedings is limited to the facts of this case. We express no opinion as to
the right of such counsel where, for example, the defendant cannot be present
at the hearing (e.g., where the defendant is in custody on charges other than
those at issue in the section 1473.7(a)(2) proceedings) and has been unable to
meet with counsel. That is not the situation here.
33
[posttrial proceedings]; Lara, supra, 86 Cal.App.4th at pp. 153-154 [during
trial].) We likewise review the trial court’s denial of a continuance for an
abuse of discretion. (People v. Blake (1980) 105 Cal.App.3d 619, 623-624
[motion to continue trial to retain new counsel].) Appellant has not shown an
abuse here.
As we explained, ante, prior to Appellant’s first request for a
continuance (for which Appellant gave no notice to Respondent) on
August 27, 2019:
• In December 2016, Appellant had filed her section 1473.7(a)(2)
motion;30
• in March 2017, Appellant had already presented her evidence once (and
the motion was denied);
• in October 2018, the matter had been remanded for purposes of a
section 1473.7(a)(2) hearing and findings;
• during the January – May 2019 time period, the court had conducted
seven status conferences;
• in May 2019, the court had set an August 19 date for presentation of
motions;
• in June 2019, the court had set a September 16 date for presentation of
evidence;
• in early August 2019, the court had continued until August 23 the date
for presentation of motions; and,
30 Well-prepared in 2016, Byrnes prepared and filed Appellant’s
section 1473.7(a)(2) motion prior to the effective date of section 1473.7.
(Stats. 2016, ch. 739, § 1, eff. Jan. 1, 2017.)
34
• on August 23, 2019—the court day immediately preceding the day of
Appellant’s first request for a continuance—the court had issued two
adverse evidentiary rulings against Appellant.
Despite this chronological background and the date of Appellant’s conviction
16 years earlier, on the first day of the presentation of the evidence
(Sept. 16), Appellant again requested a continuance in order for Nasseri to
“do a diligent investigation.”
Given these undisputed facts, the court reasonably and understandably
found “concerns . . . as to delay tactics and manipulation of the court.”
Likewise, the court reasonably and understandably found that Appellant’s
motive was “to get a second bite at the apple, essentially, and to relitigate
and reargue everything before the Court, which is an improper purpose.”
Such findings satisfy the requirement that Appellant’s choice of retained
counsel may be rejected where that choice results “in a ‘disruption of the
orderly processes of justice unreasonable under the circumstances of the
particular case.’ ” (See Ortiz, supra, 51 Cal.3d at p. 982 [criminal trial];
accord, Lara, at p. 152 [same].)
Appellant does not convince us otherwise. Appellant contends that the
court erred in denying her “initial request for a full substitution of counsel
and her multiple requests for a continuance for new counsel to prepare,”
because Byrnes was “unwilling and/or unable to provide effective assistance.”
(Bolding and some capitalization omitted.)
Initially, we reject Appellant’s contention that she was prejudiced by a
ruling which precluded “a full substitution of counsel.” At the time of the
initial request, the court suggested that, instead of substituting Nasseri for
Byrnes, Nasseri could associate with Byrnes; the court gave counsel an
opportunity to discuss the suggestion with Appellant; and Nasseri reported
35
that Appellant did not object. Appellant’s only other contention of prejudice
is that, had she been allowed “a full substitution,” a continuance would have
been necessary; and this circuitous argument does not support a finding of
prejudice.
We acknowledge that the court was often frustrated by Byrnes’s
requests to consult with Appellant before responding to questions or effecting
proffers of evidence; however, at no time did the court preclude the
consultations or otherwise preclude Byrnes from looking for items in response
to the court’s inquiries. In addition, in suggesting to the court that Byrnes
was unprepared, Nasseri referred only generically to a lack of preparation to
lay the necessary foundation of unidentified documents.31 Finally, the court
offered Nasseri two opportunities to explain in camera any potentially
confidential information as to how or why Appellant might be prejudiced if
she were not granted a “full substitution of counsel”; but Nasseri made no
additional showing of prejudice.
In closing, Appellant argues that she is entitled to relief because the
trial court’s denial of the requests to substitute counsel and continue the
proceedings were based on Byrnes’s ineffective assistance. (Citing People v.
Gonzalez (2005) 126 Cal.App.4th 1539, 1548 [“ ‘Entitlement to a midtrial
continuance requires the defendant “show he exercised due diligence in
preparing for trial.” ’ ”].) We disagree. Unlike Gonzalez, this was not a jury
trial; and, as we explained ante, under the circumstances of this case,
31 This suggestion was made at the time of the second request to
substitute counsel, the denial of which Appellant does not challenge on
appeal. At the time of the initial request, there was no mention of Byrnes’s
lack of preparation. To the contrary, at the time of the initial request, the
principal focus was on the need for a continuance in order to allow Nasseri to
be prepared.
36
Appellant had no constitutional or statutory right to retained counsel of her
choice in the section 1473.7(a)(2) proceedings.32 (See David L., supra, 164
Cal.App.4th at p. 710.)
3. Denial of Section 851.8, Subdivision (d) Motion
As we introduced at footnote 9, ante, Appellant acknowledges that, if
she fails to obtain relief under section 1473.7(a)(2), then she is not entitled to
a finding of factual innocence under section 851.8, subdivision (d). We agree
and discuss the issue no further.
32 On the fourth day of the section 1473.7(a)(2) hearing, although
Appellant personally presented a written “ ‘Request for Leave to File Motion
for Ineffective Assistance of Counsel, Motion for Ineffective Assistance of
Counsel,’ ” she expressly withdrew it before the court filed it. Appellant then
made the oral motion, discussed in the text, ante, that Nasseri represent her.
However, as the court noted, Nasseri was representing her in court at that
time. Subsequently, neither she nor Nasseri presented further argument
regarding ineffective assistance of counsel, even though Nasseri again
requested a continuance. Thus, contrary to her argument on appeal,
Appellant did not raise the issue of ineffective assistance of post-conviction
counsel in the trial court for purposes of preserving an issue on appeal. In
any event, as we explained in the text, ante, because Appellant had no
constitutional or statutory right to retained counsel of her choice in the
section 1473.7(a)(2) proceedings, there is no legal basis for such a motion in
the trial court.
We likewise reject Appellant’s suggestion that, had we found Byrnes
failed to provide effective assistance, Respondent would have had the burden
on appeal to establish that Byrnes’s ineffective assistance was harmless
beyond a reasonable doubt. (Citing People v. Hill (2013) 219 Cal.App.4th 646,
652 and Chapman v. California (1967) 386 U.S. 18.) This is not an appeal
from a judgment of conviction, in which the People proved the defendant’s
guilt beyond a reasonable doubt in the trial court. This is an appeal from the
trial court’s denial of a motion, in which the defendant (Appellant) failed to
prove by a preponderance of the evidence the elements of her post-conviction
collateral attack.
37
III. DISPOSITION
The September 17, 2019 order denying Appellant’s motions under
sections 1473.7 and 851.8 is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
38