2020-08

People v. Thomas CA6 ( 2020 )

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Filed 8/28/20 P. v. Thomas CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,                                                                 H044094
(Monterey County
Plaintiff and Respondent,                                      Super. Ct. No. SS142197A)
v.
DAVID JON THOMAS,
Defendant and Appellant.
Defendant David Jon Thomas was charged with sexual abuse of his minor
daughter (daughter) and stepson (stepson).1 Thomas believed, in the course of his
prosecution, that well-connected members of daughter’s mother’s family—namely
daughter’s maternal grandmother and grandfather—were exercising influence in the
Monterey County District Attorney’s office to encourage his prosecution and interfere
with his defense. Thomas also believed that stepson’s mother was cooperating with
daughter’s maternal family members to manufacture or embellish the charges against
him.
Believing that he would not get a fair trial under these circumstances, Thomas
filed a motion to recuse the Monterey County District Attorney’s office and filed three
motions pursuant to People v. Marsden (1970)

2 Cal.3d 118

 (Marsden), asking the trial
court to substitute his court-appointed attorney for alternate counsel. The trial court
1
We refer to the victims and certain witnesses in this case in a manner intended to
protect their personal privacy interests, including at times using a generic identifier or
only their first name and last initial. (See Cal. Rules of Court, rule 8.90(b).)
denied these motions, as well as Thomas’s subsequent motion to represent himself
pursuant to Faretta v. California (1975)

422 U.S. 806

(Faretta). The jury returned a
guilty verdict on all counts.
On appeal, Thomas challenges the denial of his Marsden and Faretta motions as a
violation of his rights under the Sixth and Fourteenth Amendments of the United States
Constitution. He also contends that the denial of his motion to recuse the District
Attorney’s office without an evidentiary hearing was an abuse of discretion in violation
of due process. Thomas also claims that his trial counsel rendered ineffective assistance
in violation of his Sixth Amendment rights. We find no merit in the asserted grounds for
reversal and will affirm the judgment.
I. BACKGROUND
A. PROCEDURAL BACKGROUND
The Monterey County District Attorney filed a third amended information
in August 2016 charging Thomas with five counts of crimes committed against the
two victims between September 10, 2010 and August 1, 2014, as follows: sex/sodomy
with a child under 10 years of age, as to stepson (Pen. Code, § 288.7, subd. (a);2 count 1);
two counts of a lewd act upon a child under 14 years of age, as to stepson (§ 288,
subd. (a); counts 2-3); and two counts of a lewd act upon a child under 14 years of age, as
to daughter (§ 288, subd. (a); counts 4-5). The information also alleged in separate
enhancements that Thomas committed a lewd act against more than one victim
(§§ 667.61, subds. (b), (e), 1203.066, subd. (a)(7); counts 2-5). Thomas pleaded not
guilty and denied the special allegations.
In July 2016, Thomas filed a motion pursuant to section 1424 to recuse the
Monterey County District Attorney’s Office from prosecuting the case.
2
Unspecified statutory references are to the Penal Code.
2
The defense argued that a conflict of interest existed within the meaning of section 1424,
which authorizes the trial court to decide whether an evidentiary hearing is needed and to
recuse a district attorney’s office if “the evidence shows that a conflict of interest exists
that would render it unlikely that the defendant would receive a fair trial.” (§ 1424,
subd. (a)(1).) The Attorney General opposed the motion to recuse, and the trial court
denied the motion after a hearing.
Between June and August 2016, Thomas also filed three Marsden requests to
substitute his appointed counsel. The trial court denied each request after a hearing.
Thomas then brought a Faretta motion to represent himself, which the trial court also
denied.
After a jury trial of a few weeks, in which Thomas testified in his own defense, the
jury found Thomas guilty as charged on all counts, and found true the special allegations
as to counts 2 through 5. At sentencing, the trial court imposed a term of 25 years to life
on count 1, consecutive terms of 25 years to life on counts 2, 3, and 5, and a concurrent
term of 25 years to life on count 4, for an aggregate prison sentence of 100 years to life.
Thomas timely appealed.
B. EVIDENCE ADDUCED AT TRIAL
1. The Prosecution’s Case
a. Incident Involving Daughter
Daughter was six years old at the time of the trial and was found competent
to testify. She identified Thomas in court as her father. She stated that she lived with
her mom (Aimee T.) and her maternal grandmother (Elizabeth T.) and grandfather
(David G.).3 She has a stepbrother (stepson) who did not live with them but lived with
For simplicity, we refer to Elizabeth T. and David G. as daughter’s maternal
3
grandparents, though according to the record David G. is the life partner of Elizabeth T.
and daughter’s putative, not biological, grandfather.
3
Thomas, his wife (Catalina F.), and Thomas’s mother (Eugenia), whom daughter called
“Grandma Jeanie.” Daughter said she loves her father.
Daughter used to visit Thomas at his house. Sometimes stepson and Grandma
Jeanie would be there too. One time she saw her father naked in bed. He told her to
touch his “private part.” She was standing near the bed. Afterward she “ran to the
bathroom and washed [her] hands.” The stuff that got on her hands was “white.” She did
not tell anyone because she thought it was a secret.
Aimee T. is daughter’s mother. She identified Thomas in court as daughter’s
father. She and Thomas dated for about six years and were married for one year. She
moved into his house which he shared with his mother and grandmother. Thomas and his
mother started to experience “demons” and negative energy in certain rooms in the house.
Daughter was born in November 2009, and Aimee T. left with daughter in February
2010. She felt “suffocated and restricted” and decided she “just couldn’t live like that
anymore.” She “was concerned with [daughter’s] well-being considering the demons and
stuff like that” that she had “experienced over the years from” Thomas. Aimee T. later
obtained physical custody of daughter, and Thomas had daytime visitation on the
weekends. Aimee T. testified that she and daughter live with maternal grandparents.
Aimee T. eventually got to know Thomas’s new wife, Catalina F., who helped
coordinate the drop-off and pickup times for daughter’s visits with Thomas. Catalina F.
often would be the one to pick up daughter, or sometimes it was Thomas with stepson or
Eugenia. There were no issues around daughter’s visitation with Thomas until March
2014.
On Monday, March 31, 2014, Aimee T. accompanied daughter to the bathroom to
use the toilet before they left the house. Daughter “all of a sudden . . . started pointing to
her private parts and she said, ‘My daddy let’s me touch here.’ ” Aimee T. stated that she
was “very concerned” but “remained calm.” She testified that she asked daughter “two
more questions. [¶] . . . [¶] I asked, ‘Your daddy let’s you touch yourself there or let’s
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you touch him there?’ And she said, ‘Let’s me touch him there.’ And I asked, ‘Did he
have clothes on or no clothes on.’ And she said, ‘No clothes on.’ ” Aimee T. did not ask
more questions because she “didn’t want to alarm her” but she told daughter that she
should tell grandmother what she just told Aimee T. Daughter told Elizabeth T.
“basically the same thing.”
Aimee T. contacted the police about daughter’s disclosure. Daughter gave a
longer statement to authorities on April 1, 2014. Later that day, Aimee T. made several
pretext calls to Thomas at the request of law enforcement. The next evening, she
received text messages from Thomas in which he offered to give her 100 percent custody
of daughter if she “ ‘would be willing to drop everything,’ ” saying “ ‘[i]t’s breaking my
heart, but I don’t think it’s going to be good for [daughter] or me or you or any of us to
go through a long arduous process. I’m not saying I’m guilty, I’m saying I don’t want to
fight . . . .’ ” Thomas’s text continued, asking at one point for “ ‘supervised visit every
once in a while . . .’ ” but stating “ ‘if you don’t want to agree to supervised visits, that’s
okay. You can have sole physical, sole legal, and I will waive my visitation rights
completely.’ ” In another text from July 2014, Thomas told Aimee T. that he would not
contact her anymore and would not try to see daughter “ ‘ever.’ ” He asked her to “ ‘love
her for me and say prayers with her for me. . . . She is yours now and this is what I
want. . . . Be free, live well, and be in peace. . . .’ ”
Aimee T. testified that she never threatened to take daughter from Thomas or
solicited an offer of full custody. She never told daughter to make up a story about
touching her father’s penis. She felt “[a]wful” that daughter had to testify in court. She
had nothing to gain by testifying at trial.
Aimee T. testified on cross-examination that Catalina F. called her on the day she
reported stepson’s disclosure, which was about two months after daughter’s disclosure.
Aimee T. denied coordinating with Catalina F. or talking together about the children’s
5
reports. They did coordinate for Aimee T.’s mother, Elizabeth T., to help Catalina F.
change her son to a different school.
Brian Baugh is a deputy sheriff for Monterey County. He took then four-year-old
daughter to the Bates Eldridge Center in Salinas on April 1, 2014, for a video and audio
recorded interview with county social worker Susan Gleason. Baugh observed the
interview. He noted that daughter remained “[c]alm, sitting in the seat[,] . . . [s]he
seemed pretty articulate” when talking about her family or things she liked to do. She
started moving and jumping around, refrained from making eye contact, and seemed
uncomfortable when asked about her dad and touching his private part. Baugh does not
have any particular training in early childhood education or child psychology, beyond his
police academy training.
Christina Gunter is a sexual assault investigator with the Monterey County District
Attorney’s office. She interviewed daughter in November 2015 at the Bates Eldridge
Center. Gunter described daughter’s physical gestures in responding to several questions.
Using a diagram that she was shown, daughter pointed to the penis when asked where she
rubbed lotion on her daddy. She made a circular motion with her right hand where her
thumb touched the tip of her other fingers. She also showed where she stood in relation
to his body, on his right side while he lay on the bed.
b. Incidents Involving Stepson
Stepson was 12 years old at the time of trial and about to begin seventh grade. He
identified Thomas in court as “David.” He lives with his mom, Catalina F., and
previously lived with Thomas from first through fourth grade, after her mother married
him, along with Thomas’s mother (Eugenia) and grandmother. Stepson did not like
living there because he did not feel safe. Thomas would get mad when Catalina F. paid
more attention to stepson than to him. Thomas would swear, which scared him, and if he
started crying, Thomas would tell him that he would “give me something to cry about”
which made stepson think Thomas was going to hurt him.
6
One time when stepson was in fourth grade, Thomas called him to his room.
Thomas had sent Catalina F. and Eugenia to the store to buy some things. Thomas
locked the door and closed the curtains, which stepson thought was “weird.” Thomas
was standing next to the bed. He told stepson to take off his clothes, and then he also
undressed. Stepson noticed he was “hairy, like a monkey.” Thomas laid a towel on the
bed and had stepson lie flat on his stomach, on top of the towel. Thomas “put his penis
inside [stepson’s] butt hole” for what “felt like it was a while.” Stepson felt “pain.”
Thomas “wouldn’t let” him get away. Thomas was “holding” and “kind of pushing [him]
down.” Thomas stopped when Catalina F. called on the cell phone. He told stepson to
get dressed and “don’t tell” his mom. Stepson was scared that Thomas would hurt him,
so he put his clothes on and “pretend[ed] nothing happened.”
Stepson described another time when Thomas made him use his hands on
Thomas’s penis. He made him “keep on doing it” until “[s]omething white” “shot out” of
Thomas’s penis “like a volcano.” It went on stepson’s glasses and on his lips. Thomas
cleaned it up with a towel. Thomas made stepson take a shower with him. Stepson
described another time that Thomas “put his mouth” on his penis.
Stepson did not initially tell anyone because he “didn’t know what was [sic] I
should say.” He and his mom eventually moved out of the house, which made stepson
“quite happy.” After he and his mother were out of Thomas’s house, stepson reported
what had happened. Thomas was his stepdad but “how he acted didn’t really feel like a
real dad.”
Nurse Practitioner Sheree Goldman, the coordinator of the Monterey County
sexual assault response team, testified as an expert in forensic sexual assault examination.
Goldman explained that a non-acute exam is a forensic exam where the assault event was
not recent. She described the factors that might affect whether there is injury to the anus
in a case of a male child victim and what research has shown about the likelihood of
residual injury or scarring. Goldman testified based on the report of stepson’s
7
examination that stepson described three times when he was 10 years old in which his
stepfather did things to him. “ ‘He touched my butt with his pee-pee.’ ” “ ‘He put it deep
inside . . . and it hurt real bad.’ ” Stepson said that he “ ‘yelled’ ” and “ ‘told him to stop
but he wouldn’t listen.’ ” Stepson also said, “ ‘When he pulled it out of my butt the white
stuff came out.’ ” Stepson reported having a “ ‘real sensitive spot in my butt.’ ”
Stepson’s sexual assault examination revealed nonspecific redness around the anus on the
outside but no injury.
The examination report also contained stepson’s description of two other acts by
his stepfather. These were, “ ‘He made me put my hand on his pee-pee’ ” and “ ‘[w]hen I
did that white stuff shot out of it.’ ” Also, “ ‘He put his mouth on my pee-pee, he sucked
on it, he bit it, but it didn’t bleed.’ ” Stepson said that Thomas told him not to tell anyone
and made him take a shower after the first time, which was “weird and [stepson] didn’t
like it.”
Catalina F. is stepson’s mother. She testified that she met Thomas around 2010
and they began dating shortly after. She had been living with a family, and he offered
that she and stepson could move into a trailer of his. Thomas moved into the trailer about
a week later. She found out that he had a daughter after they were living together.
Thomas told her that it would be easier for him to get custody of daughter if she married
him. She married Thomas after about five months, in June 2011.
They moved from the trailer into the house next to the trailer, on the same
property, in 2012. Catalina F. began to help with daughter’s custody exchanges and
eventually became the primary person who would pick up daughter and return her.
Stepson would be at the house during those times, as well as on the weekends when
Catalina F. would leave to run errands. She was the primary shopper for the household.
Thomas’s mother, Eugenia, would always come with her.
Everything was “fine” when they moved into the trailer but it changed when they
moved to the house. Catalina F. noticed behavioral changes in stepson from a “[v]ery
8
happy, driven, playful kid” to sadder, less confident, and less talkative. He began eating
more and gaining weight. Thomas would sometimes grab stepson by the head and shake
him, or would grab him and raise his fist toward him, and would spank him with an open
hand. He would call him a liar and would become more aggressive when Catalina F.
would try to intervene. He also would comment on stepson’s body by saying he “has a
big butt.”
Catalina F. became aware of an issue between Aimee T. and Thomas in March
2014, because Thomas was in his car on the phone for hours and told her that it was
about daughter who was having problems at school. She accepted the explanation but
then “more things start[ed] coming out.” Catalina F. insisted that he tell her what it was
about, and he said that Aimee T. was trying to have daughter say that he had touched her.
He denied doing it but Catalina F. was not convinced. Catalina F. testified there were
times that daughter would be alone with Thomas.
Thomas began changing things in the house, including that he took the blankets
off the bed in their bedroom, repainted the bedroom from white to blue, and removed the
television. He tried to tell his mother that the bedroom “always has been blue” and made
her repeat it three to four times. He did the same to Catalina F. and to stepson. Around
the same time that he was changing the bedroom, Thomas asked Catalina F. to write a
statement to defend him. She told him to do it himself, but he made her do it and told her
“ ‘you fucking bitch, you have to do it.’ ” She became afraid and did it. She typed
several paragraphs for Thomas but never signed the statement. The document shown at
trial had several pages and statements added to it that she testified she had not typed.
Catalina F.’s relationship with Thomas had started to deteriorate in early 2013,
before the allegations about daughter. She decided to leave Thomas because of his
treatment of her and of stepson, but she had to wait until she finished school and got a
job. He had begun calling stepson a liar and an idiot, yelling at him, and physically
grabbing him. Stepson appeared to be afraid of Thomas, did not want to talk, was sad
9
and lacked confidence, and did not want to go to school. When Catalina F. asked stepson
about what was happening he seemed “scared” and would not look at her in the eyes,
which was “very uncommon” for him.
Catalina F. began looking for a job in December 2013 and found work in August
2014. Catalina F. packed her car when Thomas was not home, took stepson, and left.
Stepson was excited to leave. She continued to ask him if something happened to him or
if there was something he was not telling her. He would tell her “it was nothing” and
seemed like he “didn’t want to talk about it.”
On August 16, 2014, Catalina F. repeated that she was worried for stepson and
really needed to know and wanted him to talk to her. She testified that while still playing
with his Legos, he said “ ‘Mom, I’m afraid to told [sic] you of this.’ ” He then “start[ed]
telling me everything.” He told her that Thomas grabbed his butt cheeks and he started
touching him, that when she would go to drop off daughter Thomas would call him to the
bedroom and lock the door, and that Thomas would have him pull his pants down and
Thomas even bit his penis. He also told her that Thomas put his penis inside him and that
it hurt him. She told stepson that “what you have told me right now, I need you to talk to
the police about this. I’m going to call them. And that’s what I did.”
On cross-examination, Catalina F. testified that Thomas’s mother, Eugenia, and
grandmother, Mary, were retired and for the most part present at the property. Thomas
had a job as a bank security guard for the years they lived together. Catalina F. was the
one who transported stepson to and from school. Stepson told her that his “butt hurts” in
early 2014. He was embarrassed and said he did not know why; he did not want to see a
doctor and she figured it was from constipation. Stepson seemed to get along okay with
Eugenia, who sometimes helped with errands or meals.
On redirect, Catalina F. testified that when she asked Thomas about daughter’s
allegations, he always told her “No. . . . Fuck you, bitch. You think I would do this to
my daughter?” When police came to the house to ask her about daughter’s allegations,
10
she did not speak to them because Thomas had told her not to. She did not talk to
Aimee T. about daughter’s allegations before leaving Thomas’s house in August 2014.
She asked stepson if he had seen anything between Thomas and daughter, and he replied
that he did not see anything. After stepson disclosed to her, she sent Aimee T. a text
saying that after what stepson told her, she believed everything that happened to daughter
was true.
Kim Smith is a detective with the Monterey County Sheriff’s office. She observed
stepson’s interview, conducted by Social Worker Alberto Camacho, on August 22, 2014,
at the Bates Eldridge Center. Stepson was 10 years old at the time. During the interview,
stepson told Camacho that he did not want to talk about “what happened to his butt.” He
instead showed with his hands “by making his two fingers going in a circle and his other
finger inserted” and moving the inserted finger inside and outside the circle. Stepson
pointed to the penis and the butt on the diagram when he said “ ‘this on this.’ ” Stepson
showed being grabbed around his hips, on the small of his back. He looked away from
Camacho when describing the white stuff that shot out of the private part. He gestured
toward a children’s counting puzzle in front of him when Camacho asked him about the
number of times that the incidents had happened.
c. Expert Testimony on Child Sexual Abuse Accommodation
Syndrome
Dr. Anthony Urquiza is a psychologist, professor of pediatrics, and director of a
child abuse treatment program at a university medical center. The trial court recognized
him as an expert in child sexual abuse.
Dr. Urquiza testified that there are five aspects of child abuse accommodation
syndrome, which describes “a pattern of events or characteristics that tend to co-occur.”
These are secrecy, helplessness, entrapment and accommodation, delayed and
unconvincing disclosure, and retraction or recantation.
11
Most often, a child is sexually abused by somebody who is familiar and with
whom they have an ongoing relationship. That person is usually in a position of authority
or control over the life of the victim. Kids may not report sexual abuse because they are
threatened or intimidated by the perpetrator, even where the threat is not overt. Kids may
be afraid that disclosure will result in a bad thing for their family. Research shows that it
often takes months or even years for kids, both male and female, to disclose abuse.
Because the victim is being abused by somebody they know, who has control and
ongoing access to them, the child usually has no recourse other than to be victimized.
Kids may not understand sexual abuse and do not understand adult erotic sexual behavior
or how to talk about what is happening.
Entrapment describes the cycle of being abused, being unable to tell anybody
because it is a secret, and being helpless to stop it from happening again.
Accommodation refers to the coping mechanism that develops when a child is powerless
to stop the abuse; the child may dissociate or emotionally disconnect from the feelings or
the experience of abuse. Though most victims are able to remember what they see, it
may be difficult for them to overcome the sense of embarrassment or shame and to talk
about it. They are less likely to remember the details of what was happening
peripherally. Talking about the event later in court and perhaps seeing the perpetrator for
the first time since the disclosure may make it even more difficult to talk about it.
The notion that a mother can recognize her child is being abused has been refuted.
Sexual abuse “happens behind closed doors, outside of people’s awareness” and “kids get
sexually abused in coercive ways that other people just don’t know about it.” The last
aspect of the accommodation syndrome is retraction, where in some cases a child who
discloses the abuse later takes back the allegation.
Dr. Urquiza explained that sexual abuse must be understood as a relationship.
“[T]o understand the affect that sexual victimization has on kids you have to understand
the motivations and . . . the distortions that perpetrators have . . . .” It is a myth to
12
presume that an offender of a certain sexual orientation will victimize only according to
that orientation.
Dr. Urquiza’s testimony was limited to the child abuse accommodation syndrome
and his experience working as a psychologist with kids who have been abused; he knew
nothing about this particular case, the defendant, or the victims.
d. Investigation by the Monterey County District Attorney’s Office
Christina Gunter interviewed stepson on the same day as she interviewed
daughter, though at a different time so the children were not present around one another.
Gunter described stepson’s gestures and movements while talking about the incidents.
Stepson arranged the diagram of the boy front-down and placed the diagram of the male
on top, then showed with his right and left hands, palms facing down on each butt cheek,
pulling the butt cheeks apart. He did not look at Gunter during the disclosure, especially
when talking about the penis touching his butt. Instead, “his head would go down and he
scrunched himself under the table more. I couldn’t see his hands anymore.” Stepson also
showed with his mouth how the defendant used his mouth on stepson’s penis, moving his
head back and forth and making a sucking, gagging sound. He similarly showed how he
used his fingers and hands to masturbate the defendant’s penis, and where the defendant’s
hands were as he lay on the bed.
Gunter acknowledged, on cross-examination, that certain comments made by a
child might be gleaned from what adults say at home. She did not form an impression
that he was parroting anyone in describing the alleged sexual abuse.
2. The Defense’s Case
Dr. Roberto Flores de Apodaca testified as an expert in forensic clinical
psychology regarding molestation as it relates to adult or juvenile offenders. Dr. Flores
practices forensic psychology, evaluating people in legal cases on issues of mental status.
He has testified in over a thousand legal cases split about evenly between prosecution,
13
defense, and court appointments. In sexual molestation cases, Dr. Flores evaluates only
the alleged perpetrators.
Dr. Flores evaluated Thomas in-person for several hours on behalf of the defense
case. He spoke with him about his background, took a social history, and administered a
psychological test. Dr. Flores also reviewed the charges against Thomas, the preliminary
hearing testimony, and police reports. Thomas was cooperative, answered questions
directly, and participated in the psychological testing, which produced “reliable and
interpretable” results. The test that Dr. Flores administered is designed to identify a
person’s “persisting sexual interest,” referring to the category of individuals the person is
sexually responsive to—whether adults, adolescents, school age, or toddlers. Although
there are those in the field who maintain questions about the test’s methodology, “the
growing and substantial level of opinion on this particular test is that it is valid . . . ,
particularly where . . . there’s an incentive to be less than fully honest and fully
forthcoming.” Thomas’s test results were “that he has persisting sexual interest in adult
and adolescent females only, not in males of any age or in prepubertal females.” Dr.
Flores agreed on cross-examination that the test does not assess underlying motivation for
alleged conduct, such as conduct based on power or control, but it would tell whether the
defendant “has a persisting interest in children or . . . not.” All factors indicated that
Thomas’s test reflected meaningful participation.
Eugenia Thomas (Eugenia) is the defendant’s mother. Thomas always lived with
her at their home in Salinas, along with her mother, Mary Dennis. Aimee T. lived with
them for a time, then left with daughter when daughter was still “little.” Eugenia would
see daughter on Saturdays and Sundays. Aimee T. wanted things for the baby done a
certain way, which “made it very, very hard on us” though they “did everything” they
could to appease her. Eugenia was always around the house including during daughter’s
visits. She never saw Thomas act in any way sexually inappropriate towards daughter.
14
Eventually Catalina F. and stepson began living with them. Eugenia slept in the
living room on the couch because of back problems. Stepson slept in the living room too.
They would watch television and chat. They grew close, and Eugenia loved stepson and
would take care of him. If stepson acted out, Catalina F. would discipline him and was
“very harsh,” so Thomas would talk to him and “try to teach [him] the right way . . . .”
Stepson did “not really” complain to her about the way Thomas treated him. They
seemed to get along and enjoy each other’s company. Eugenia was surprised when
Catalina F. left suddenly with stepson in August 2014 and “thought maybe she was
kidnapped.” Eugenia never saw Thomas act in a sexually inappropriate manner towards
stepson.
Eugenia testified on cross-examination that since Thomas’s arrest, she hears from
him about twice a day if she’s lucky and also visits him every Sunday. They never talked
about the allegations against him. She confirmed that the room Thomas shared with
Catalina F. was white, and Thomas painted it blue after April 2014. They also painted
the living room and bathroom. She stated that Thomas was not home when she would go
with Catalina F. to pick up daughter for visitation, because he was working. She denied
that there were times that she would leave with Catalina F. and stepson would be home
alone with Thomas. She said that stepson was “always” with her. She went shopping
with Catalina F. “very, very, very few” times, like “maybe one.” Thomas was never
alone with stepson or with daughter. She denied telling the police, when they came to the
house in April 2014, that Thomas told her not to talk to them.
Kaylee L. knew Thomas as a family friend. She was 15 years old at the time of
trial. Her mother was friends with Thomas’s ex-wife Catalina F., and they met Thomas
through her. Kaylee L. knew stepson and also knew Thomas’s daughter “a little.” She
and her family often got together on the weekends with them to see a movie or go
swimming. She described Thomas as “kind of like an uncle-type figure” who was nice
and fun. Her opinion was that Thomas was proper with children. She did not hear what
15
daughter and stepson said that Thomas did. Hearing the allegations against him would
not change her opinion about Thomas. She testified on cross-examination that she did
not know that her mom was romantically involved with Thomas. She believed that the
children accusing him “are very young” and “were influenced.”
Nancy Ferracane knows Thomas as a friend. Ferracane met him while he and
Catalina F. were dating. After Catalina F. moved in with him, they became “good
friends . . . like a family.” Ferracane became briefly romantically involved with Thomas.
The families would get together every other weekend for outings and activities. She
would bring her two daughters, and Catalina F. and Thomas would bring stepson and
sometimes daughter. Ferracane never saw Thomas alone with stepson. She stated on
cross-examination that she does not know what he does when he is alone with daughter.
Thomas testified in his own defense. He was 43 years old at the time of trial. In
2014, he was working as an armed security guard at Bank of America. Daughter was
born in 2010. Aimee T. left when daughter was about five months old. They later
mediated shared legal custody and 15 percent physical custody so that Thomas had
daughter for two eight-hour days every weekend. He did not try to change the custody
arrangement but had understood that it would change to include overnights and 50
percent physical custody when daughter turned five in November 2014.
However, in April 2014, Aimee T. called Thomas and told him daughter’s
allegations. Aimee T. said that daughter had made the statements, but he felt throughout
the conversation that they came from Aimee T. Thomas was in his car and had just
pulled into his driveway when he received the pretext call. There were actually three
pretext calls that afternoon, lasting a total of about three hours. He just sat in the car after
because he “couldn’t believe it.” Catalina F. came to the car trying to figure out what
was going on. Once he returned to the house and composed himself, he told her what
Aimee T. had said. He was “nervous” and “kind of freaking out.” At some point that
evening he also told his mom, Eugenia.
16
Thomas confirmed that he sent Aimee T. the text messages later that night. He
had thought about giving up daughter even before the allegations were made. Thomas
explained that maternal grandparents “had a monumental influence” on his decision to
want to terminate physical custody. He said that the grandparents, especial Elizabeth T.,
showed in many ways that they “wanted” daughter even when she was “still in the
womb.” He texted Aimee T. offering to give up physical custody of daughter because he
was “afraid.” Thomas explained that maternal grandparents “were very powerful
influential people” who had wanted Aimee T. to leave him “for the sole purpose of
getting full custody of my daughter.” Thomas was afraid of them; they had the “power of
the law” and “influence” in the system including the sheriff’s department.4 He was afraid
that they would prosecute him and take away his daughter. They had always scrutinized
everything Thomas did with daughter, from “the way she looked when she came back
[from visitation], what she was wearing, where we went, what we would do, if we were
even five minutes late.” He felt he was “under a microscope.” It put a lot of pressure on
him and his family.
Thomas felt that Aimee T. was trying to “entrap” him into saying something
during the pretext phone calls. She was vague with her questions and did not clarify what
she understood from daughter’s statement that “ ‘Daddy lets me touch here.’ ” He at
some point started suggesting scenarios that might have led to daughter’s statement, like
maybe having seen him in the bathroom peeing. He also mentioned to Aimee T. his skin
issues (psoriasis, eczema, and dermatitis), which she already knew about. He explained
to the jury that he has to apply a Cortisone cream, which is white, on his penis around the
head and the shaft, inside the urethra, in the crotch area, between his butt cheeks, and on
4
The trial court struck portions of Thomas’s testimony during his examination in
which he offered the fact that maternal grandparents were employed with the Monterey
County District Attorney’s office. We discuss the conflict of interest issue in detail in the
Discussion, post.
17
his scalp and ankles. He also would inject antifungal medication into the urethra and
squeeze it as far as he could to the base of his bladder, which process he described to
Aimee T. during the call.
He further testified that there was one time that involved daughter. It was in the
morning and he had gotten out of the shower. Catalina F. and Eugenia must have just
returned from picking up daughter. Catalina F. must have not locked the door when she
left the room. He was lying on his bed on his back with his towel open. He had just
applied the medication and his penis was erect. If the penis is flaccid, most of the
medicine stays in. But if the penis is erect when he puts the medicine in, about 90
percent comes back out. Daughter came in just after he had put the medicine in. He saw
daughter’s face. Her facial expression was “not good.” He covered himself immediately.
She did not touch him in any way. She was “scared” to come hear him. He did not talk
to her about the incident, but after that he began letting her put medicine on his ankle to
try to show her that it was helping him. He told her that it was medicine. She would
apply it with her fingers, and he would take her to the bathroom and wash her hands. He
would be wearing shorts and a shirt.
Thomas testified that daughter never would have seen him masturbate but might
have seen him having sexual relations with Catalina F. He did not have her masturbate
him or touch his penis in any way.
Thomas testified that Catalina F. and stepson moved to the property in 2010. He
was stepson’s stepfather through 2014. Catalina F. was in charge of discipline if stepson
acted out. Thomas did not approve of her way of disciplining. She is “from Costa Rica
and doesn’t know the laws here as well as an American citizen would . . . .” She would
slap stepson in the face or make him sit in the kitchen on the floor without dinner and
threaten to send him back to Costa Rica, to military school. She would spank him with
his pants and underwear all the way down “really hard, more than three or four times,
sometimes ten.” Thomas said that he spanked stepson himself “maybe twice” in the
18
years they lived together, but with his underwear and pants up. Everything happened in
front of his mother, Eugenia. It was not behind closed doors.
Thomas denied grabbing stepson and shaking him to punish him. He got along
“fine” with him in the spring of 2014, though he believed stepson was not “okay.”
Stepson “would have panic attacks and he would see things . . . and hear things” that
Thomas did not see or hear. Stepson would “panic” and “go into a different mode . . . .”
He denied that Catalina F. and Eugenia would leave the house, leaving him alone
with stepson. Thomas’s grandmother Mary was always there. There were only two
times that Thomas recalled his mom and Catalina F. leaving to go shopping while stepson
stayed behind. Both times stepson had asked if he could stay home and watch television,
and he stayed in the front room with Mary. When it was time to take daughter home in
the evening, everyone would generally go together, except for Mary who would stay
home.
Thomas denied ever calling stepson into his room alone. He never called him into
the bedroom, shut the door, and locked it. He never had him lie on the bed or take his
clothes off. Stepson has never seen him masturbate or ejaculate, and he never touched
stepson’s penis or anus. He testified that he never committed any of the sex acts that
stepson described and never touched him inappropriately. He did not shower with
stepson, other than to rinse off chlorine after the pool. There were times that Catalina F.
would stand in the bathroom while stepson showered to make sure that he cleaned
properly, and Thomas was standing there too.
When Thomas spoke with Catalina F. about daughter’s allegations, she never
asked him whether he had done something to her son. She left without telling him.
Their relationship had been falling apart “in bits and pieces” starting with him “catching
her in a lie.” Between April and August 2014, the relationship was “[h]orrible.” Stepson
“was a big part” of the marital issues but not because of anything related to the
allegations, which Catalina never discussed with him. Thomas was so surprised by her
19
leaving that he thought she had been abducted and called the sheriff’s office. The
officers came and verified that Catalina F. had left him.
Thomas testified on cross-examination that when his work schedule interfered
with daughter’s pickups or drop offs, Catalina F. and Eugenia and stepson would usually
go together. On Sundays, they would all go together to pick up daughter and then go to
church. After the pretext calls from Aimee T. in which he first heard daughter’s
allegations, a deputy called him saying that Aimee T. had temporary full custody of
daughter. He then spoke with a criminal and family lawyer and texted Aimee T. offering
to give up custody of daughter.
Thomas explained the reasons that he thought he needed to give up daughter. It
was not the first time there was a false allegation. When daughter was around six months
old, Aimee T. and maternal grandmother reported that he had slapped Aimee T., who was
immediately given full temporary custody of daughter. The claim was dropped but he
had to hire a lawyer and go to mediation to regain custody and visitation. So he was
“constantly worried” they would take daughter again and was on “pins and needles” the
entire time she was with him, afraid he was “going to get prosecuted by them for
something . . . because of who they are” and that daughter would be taken away. He
realized that “[h]e didn’t have the money to fight” and it “would have been an uphill
battle” to try to get custody again after the allegations had been made.
Thomas testified that he had already planned to repaint the bedroom and other
rooms blue before the allegations. He asked Catalina F. to type a declaration but did not
tell her what to type. He saw Catalina F. being physically abusive of stepson “[m]any
times.”
C. VERDICT
The trial court instructed the jury on the applicable law, and the jury returned a
guilty verdict shortly after on all counts. Thomas timely appealed.
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II. DISCUSSION
Thomas’s contentions on appeal revolve around a central theme, which is his
belief that a conflict of interest with the Monterey County District Attorney’s office
undermined the legitimacy and fairness of his prosecution and his trial. Thomas raised
the issue in pretrial proceedings and tried to raise it at trial.
In short, Thomas believed that daughter’s maternal grandmother, Elizabeth T., and
her lifetime partner David G., used their professional connections in the district attorney’s
office and the legal community, and their familial connections with daughter’s mother,
Aimee T., to influence the prosecution and ensure that Thomas would never gain custody
over daughter. As a result of the close working relationship between the offices of the
county district attorney and the public defender, Thomas believed the conflict of interest
adversely affected his defense. Thomas argued that the Monterey County Public
Defender’s Office saddled him shortly before trial with a deputy public defender who
was assigned to the case only because he did not know Elizabeth T. or David G., and who
Thomas believed was incapable of defending him effectively.
Thomas advances three independent grounds for reversal. We first address the
three Marsden requests to substitute Thomas’s appointed public defender for new counsel
and the Faretta motion to represent himself at trial. We next consider whether the
motion to recuse the Monterey County District Attorney’s office required an evidentiary
hearing. Last, we turn to the contention that Thomas’s trial counsel deprived him of his
Sixth Amendment right to the effective assistance of counsel.
A. DENIAL OF MARSDEN AND FARETTA MOTIONS
Thomas contends that the trial court’s denial of his Marsden and Faretta motions
violated his constitutional rights to the assistance of counsel under the Sixth Amendment
to the United States Constitution and article I, section 15 of the California Constitution
and to due process under the Fourteenth Amendment of the United States Constitution.
21
1. Relevant Background and Procedural History
a. First Marsden
Thomas made his first Marsden motion on June 7, 2016, before Judge Larry E.
Hayes. His jury trial at the time was set for June 20, 2016. About three weeks before the
scheduled trial, Thomas learned that his appointed counsel, Monterey County Deputy
Public Defender Thomas O’Keefe (who had been the fourth deputy public defender
assigned to his case) was reassigned to the civil calendar of the public defender’s office.
Thomas’s newly-assigned deputy public defender was Steve Prekoski.
Thomas said that Prekoski was immediately dismissive of his concerns about the
proximity of the trial, the conflict of interest with the prosecutor’s office, and the
complexity of him facing “two complicated cases.” Prekoski refused to request a
continuance for additional time to prepare for the trial, apparently stating that “[w]hether
it’s three weeks or five years, it won’t matter.” Prekoski “shot down” the motions that
Thomas said his other attorneys had agreed were “critical” to his case. This included a
motion to recuse the district attorney’s office, which Prekoski told Thomas “ ‘will never
happen.’ ” He also indicated that he would not move to sever the cases of daughter and
stepson, contradicting the advice that Thomas received from his former attorneys and
from a private attorney he had retained for legal advice.
Thomas believed there was a conflict of interest arising from “the whole D.A.’s
office and the Public Defender’s office, knowing [maternal grandparents], and wanting to
avenge them or make an example out of me . . . .” He claimed that the conflict of interest
extended to the public defender’s office, which had assigned his attorneys based only on
whether they knew Elizabeth T. and David G. and not based on qualifications or
experience. He “got pushed . . . from public defender to public defender” due to the
conflict, and when his former lawyer, O’Keefe, started helping him “too much,” he was
taken off the case just three weeks before trial. Thomas therefore asked the judge to
22
appoint counsel from the alternate defender’s office to represent him, someone “outside
the influence of the D.A.’s Office and the Public Defender’s Office.”
Judge Hayes noted that all the defense attorneys “have some form of relationship”
with the district attorney’s office and even an attorney from the alternate defender’s
office could have some acquaintance with maternal grandparents. The court explained
that it was not possible for the court to “attorney shop[]” to find someone who does not
know them, but that all attorneys have an ethical obligation to him as their client. The
court reminded Thomas that he was always allowed retain his own, hand-picked counsel.
Prekoski addressed the conflict-of-interest complaint by stating that of all the
attorneys assigned to the case, he had the most experience and least exposure to the
district attorney’s office and maternal grandparents. Prekoski explained that he did not
know either Elizabeth T. or David G., and though he has been a deputy public defender
for 14 years, he had only been in the Monterey office since October (2015). He pointed
out that none of Thomas’s prior attorneys filed a motion to recuse the district attorney’s
office, from which he inferred based on their ethical obligations that they did not believe
there was a meritorious basis for the motion. He noted that Elizabeth T. had been retired
from the district attorney’s office for a number of years and was going to be a percipient
witness in the case. Because she and David G. were not involved personally in the case,
Prekoski was skeptical that a recusal motion or motion for change of venue would have
merit, which he had tried to explain to Thomas during their meeting.
Prekoski also responded to Thomas’s complaints about the motion to sever and the
option to seek a continuance. He had tried to explain that a severance motion lacked
merit and would not be successful, because even if the cases were severed, the evidence
pertaining to each child would be cross-admissible in the other case under Evidence Code
section 1108. Regarding a continuance, Prekoski had initially expressed that he “ ‘could
go to trial on June 20th, if [he] felt like [he] could be prepared.’ ” But he had since
23
determined that he could not be prepared for trial by then and, depending on the outcome
of the Marsden request, intended to file a motion to vacate the trial date.
Prekoski told the trial court that by the time he arrived on the case, Thomas had a
very negative opinion of his treatment by the public defender’s office. Prekoski’s attempt
to communicate about the recusal or severance motions and to have “meaningful
conversations with him about the merits of the case, . . . evidence that he said he hadn’t
seen, things of that nature” further frustrated Thomas who decided he did not want to talk
to Prekoski. Thomas was “absolutely refusing to participate in his own defense.”
Prekoski stated that he needed Thomas to engage in “meaningful discussion” with him
about the case and was “fully prepared, fully equipped, fully experienced and fully
willing to litigate” the case and represent Thomas.
Thomas reiterated that he did “not trust” Prekoski and would “not go to trial with
him.” He emphasized that his case needed more time for discovery, for motions that had
not been filed, for witnesses who had not been subpoenaed, and for additional
investigation into critical defenses.
The trial court denied the Marsden motion. Judge Hayes explained that Prekoski’s
legal advice to Thomas appeared to be sound. Though Thomas may not have liked what
he was told, his dissatisfaction and the relationship between the district attorney’s and
public defender’s offices were not grounds to appoint a new attorney. The judge rejected
the possibility of an attorney from out of county and noted that none of Thomas’s other
attorneys, including private counsel, actually filed for recusal of the district attorney’s
office. The trial court encouraged Thomas to have a “good dialogue” with Prekoski and
to cooperate in his efforts to prepare for trial. Judge Hayes stated that it would consider
the merits of a motion to continue if Prekoski filed one.
24
b. Second Marsden
Thomas made a second Marsden motion on August 2, 2016, before Judge Andrew
G. Liu, to relieve Prekoski as his counsel and appoint an attorney from the alternate
defender’s office to represent him.
Thomas explained his representation during the nearly two years since his arrest.
He first retained private counsel, then ran out of money and was assigned a series of
deputy public defenders, all of whom had treated him unfairly, other than O’Keefe, who
was on the case for a year before he was suddenly reassigned. According to Thomas, the
public defender’s office had failed to provide him with adequate representation by
experienced counsel with expertise in the charges he was facing. Thomas’s goal for the
Marsden was to obtain the appointment of counsel from the alternate defender’s office.
Thomas believed that private counsel would not have the same institutional biases and
would be independent of influence by the district attorney’s office.
Thomas provided a detailed account of his grievances with the public defender’s
office and with Prekoski. He complained that the attorneys assigned to him had not
investigated what was needed for his defense and had lied continuously to him about their
reasons for refusing to seek a change of venue or severance of the two cases. Prekoski
refused to file the motions that Thomas wanted. Although Prekoski finally filed a motion
to recuse the district attorney’s office, Thomas believed the motion was filed incorrectly
and was poorly executed. Also, Prekoski did not move to disqualify Judge Liu so that
Judge Hayes could hear the motion. Thomas stated that Prekoski lied to him about why
O’Keefe had been taken off of the case. Thomas also complained that Prekoski had not
subpoenaed witnesses needed for the defense and had failed to “impeach” witnesses like
Aimee T., Elizabeth T. and David G. Thomas wanted Prekoski to subpoena an
ex-husband of Catalina F. named Curt W. who would testify that she had used him to
obtain her United States citizenship before accusing him of child molestation and abuse,
that she may have murdered someone in Costa Rica before coming to this country, and
25
that her interest in getting Thomas jailed and out of the way was related to “millions of
dollars at stake” in property.
Thomas stated that Prekoski refused to read all of the paperwork that Thomas gave
him, failed to show up to three of six scheduled attorney visits, and would get angry and
yell at Thomas during their meetings. Thomas had to “beg and plead” to see bits of the
discovery in the case, and Prekoski had not informed him of the witnesses he had
subpoenaed or shown him the evidence against him. He felt that Prekoski lacked
adequate experience and that their communication and relationship was “beyond repair.”
He believed that if he had the ability to hire a private lawyer, none of these injustices
would be happening to him. Prekoski was acting as a “surrogate prosecutor” in many
ways because he was siding with the prosecutor and telling Thomas that his evidence was
“worthless.” Also, someone in the public defender’s office was discarding materials
faxed to Prekoski by Thomas’s mother, who tried sending them multiple times only to
find them in a trash bin.
Prekoski stated that he was reluctant to engage in a lengthy refutation of Thomas’s
allegations, because he did not want Thomas to feel that he was advocating for or against
keeping his case. In response to the concerns about the quality of the defense’s
investigation, Prekoski noted that the assigned investigator for the public defender’s
office had been with the case “since well before” he had. The investigator interviewed all
the witnesses identified by Thomas and prepared witness statements. Prekoski intended
for most of those witnesses to testify at trial, except for Thomas’s grandmother who was
over 90 years old and whose testimony was likely to be duplicative of his mother,
Eugenia. Prekoski also retained two experts who were prepared to testify on behalf of
Thomas.
Prekoski determined for tactical reasons not to offer certain other witnesses
Thomas had identified. Prekoski explained that just six days before the trial, he received
eight telephone calls from Eugenia, who stated that she met with an individual (whom
26
she did not identify) who told her that he learned from another person that Catalina F. had
fled Costa Rica to escape detection for a murder she committed there. Prekoski stated
that he performed a brief relevancy analysis and told Thomas that he found the
allegations “relatively foundationless” and “ ‘incredible’ ” but would bring a motion to
continue if more credible information surfaced that was not hearsay and more relevant to
the facts in controversy.
Prekoski explained to the trial court the purported relevancy of the allegations
against Catalina F. from his client’s perspective. Thomas had submitted a bottle of
tanning oil to the defense, which he believed Catalina F. had been slipping into his food
to try to poison and kill him. This would show that she was committing crimes of moral
turpitude and was capable of influencing the testimony of her son against Thomas,
similar to how she had falsely accused her ex-husband in the past. Prekoski said that he
was prepared to use some evidence provided by Thomas to impeach Catalina F.,
including a declaration from her earlier divorce which intimated a possible, prior issue of
molestation by her ex-husband. The relevancy of the evidence would not be “about a
grand conspiracy” but would be for the jury to consider “how the child would have the
vocabulary of molestation without having ever been molested by my client.” Prekoski
had that document “at the ready, prepared for impeachment.” Otherwise, Prekoski was
“reluctant to proffer a defense to multiple-victim child molestation that has . . . little to do
with answering to the charges, and more to do with the conspiratorial global blaming of
everyone else.”
Thomas interjected that Prekoski was a “Surrogate prosecutor.” Prekoski
acknowledged that in trying to convey to Thomas the difficulties in representing the best
interest of a client facing these charges, he “may well have sounded prosecutorial”
because he had formed an opinion—due to the potential sentence Thomas was facing—
that they “ought to discuss resolution.” Prekoski also tried to express to Thomas that “it
may well be counterproductive to mount the defense that he intends to mount, and that he
27
should consider factors of likeability” in pointing fingers at people who appear to the
jurors “to be perfectly reasonable and . . . normal people.” Prekoski emphasized that
although he had many conversations with Thomas about whether to take the case to trial,
he “always told him it’s his decision, that he’s driving that bus.” Prekoski said he
believed there were “dangers in mounting the defense” that Thomas wanted to mount, but
“[w]ith minimal exception” he was prepared to mount that defense.
Prekoski admitted that he and Thomas had “a strained relationship.” The
communication between them was “difficult” and they disagreed “every time” they
spoke. It was clear to Prekoski that Thomas lacked faith in his ability as a trial advocate.
Prekoski said that Thomas had “a really difficult time” accepting his experience with the
concept of relevance and the fact that “there are several danger zones of evidence in this
case that are, frankly, not going to be acceptable testimony at trial for either side.”
The trial court denied the Marsden motion. Judge Liu observed that Prekoski was
performing his defense attorney role, which required looking “at the case from all sides”
to determine what the defense would be facing at trial, assessing whether the case should
be negotiated and how a jury would likely react to certain evidence, and fulfilling his
ethical obligation to tell Thomas “all the bad news” about the evidence against him.
Judge Liu likened it to a patient-doctor relationship, where the doctor has to inform the
patient of the severity of the diagnosis while proposing ways to fight or defend against it.
Judge Liu told Thomas that he understood the issues Thomas was facing and that
he had represented individuals in Thomas’s situation before. He emphasized that a good
attorney-client relationship meant having faith in the attorney, which for Thomas was
hard because he had liked O’Keefe and was not getting along with Prekoski. But Judge
Liu stated that it was “clear” that Prekoski had a strategy, focus, and foresight. He
explained that what he was seeing was “not inadequacy of representation. Not by a long
shot . . . . What I’m seeing is more of a difficulty in understanding his role and how he’s
going about it.”
28
Thomas responded that Prekoski “puts on a very good show” in front of a judge
but was merely “rearranging the things that make it seem like he’s very good and he’s
doing the correct job for me and he’s working hard for me . . . .”
Judge Liu reiterated that Thomas may have been misunderstanding his attorney’s
role and that he had an attorney who was fighting for him. He found no material
conflicts. “To the extent there are conflicts . . . they’re conflicts of perception mostly.”
Judge Liu also found that “any deterioration in relationship . . . , to some degree, rests
with Mr. Thomas . . . .” The trial court denied the second Marsden motion.
c. Third Marsden
Thomas made a third Marsden motion on August 8, 2016, asking that Judge Hayes
either discharge Prekoski and substitute O’Keefe, or appoint an attorney from the
alternate public defender’s office. Thomas stated that if the court were to deny his
motion, he would want to represent himself, with assisting counsel for the legal issues
and with a private investigator.
Thomas listed the following ways in which Prekoski had failed to provide
adequate counsel: he had lied many times about his experience defending sex offense
cases and had been trying to convince Thomas to take a plea deal because he was going
to lose at trial and was facing 136 years to life; he would get angry and yell, and was
hostile toward Thomas because he had filed three Marsden motions; he was not qualified
to try the case and was chosen only due to the conflict of interest with the district
attorney’s office; he filed a “botched recusal” motion which Thomas knew he was going
to lose because it failed to focus on the fact that daughter was living with maternal
grandparents, who could influence her against him and use their positions of power to
influence the district attorney’s office and public defender’s office; he also refused to
exercise a challenge against Judge Liu, who denied the second Marsden motion and was
not familiar with the case like Judge Hayes was; and he had not prepared Thomas for the
29
trial, had not shown him the video interviews of daughter and stepson, and kept
discouraging him from filing the Marsden motions, stating no judge will grant them.
Thomas also believed that Prekoski refused to represent his best interests,
including by refusing to speak with witnesses whose testimony was “critical and
pertinent” to the defense. Thomas said that a close friend of his family was waiting
outside the courtroom and was a best friend of Catalina F.’s ex-husband. The ex-husband
was willing to testify and would discredit Catalina F. by saying that she had tried to get
his money and his property, had tried to kill him while he was asleep, and had later
accused him of molesting stepson, as she did with Thomas. He also would testify that
Catalina F. had a criminal background in Costa Rica, had been married three times
(something Thomas did not know when he married her), and that she lied and used sex to
manipulate men into marrying her.
Thomas stated that Prekoski also refused to call Thomas’s grandmother as a
witness, even though she was home when Thomas was there with stepson and could
testify about whether she had seen stepson leaving the bedroom or acting strangely.
Thomas questioned why Prekoski was excluding these key witnesses and did not care to
“get the truth out” and avert an unfair trial and life sentence. Thomas stated that
Prekoski’s angry demeanor had traumatized him. Thomas felt that he could not trust
Prekoski because of the breakdown in communication, conflict of interest (based on
Prekoski having been assigned to the case only because he did not know Elizabeth T. and
David G.), wasted time, inadequate preparation for motions and trial, and Prekoski’s
anger and bias against him. Thomas reiterated his preference to represent himself rather
than to go to trial with Prekoski as his counsel.
Thomas told the trial court that he would not be ready to start the trial that day, as
scheduled, if the court allowed him to represent himself.
Prekoski preferred to limit his response to any questions the trial court had, due to
Thomas’s belief that it was Prekoski’s advocacy at the prior Marsden hearings that had
30
kept those from being granted. In response to the court’s questions, Prekoski stated that
he had told Thomas that he had more experience than O’Keefe, which he did. He
reported that he had handled approximately 50 sex offense cases and had taken five or six
of those to trial. Regarding showing Thomas the children’s statements, Prekoski
admitted his attempts to play the videos for Thomas in jail had failed but he had prepared
transcripts for Thomas to review.
As to Thomas’s allegation that he rejected key witnesses and refused to investigate
bias of his accusers, Prekoski described his communications with a “Mr. Goodyear” who
had contacted him six days earlier. Goodyear made a series of hearsay allegations
against stepson’s mother, Catalina F., including that of the murder in Costa Rica and that
she had similarly accused her prior ex-husband, a “Curt [W.].” The defense found
information that Curt W. might have been residing in South Carolina but did not know if
that was true. Goodyear refused to connect Prekoski with Curt W. and indicated that
Curt W. did not want to participate in any way. Goodyear then showed up at the court,
where Prekoski spoke with him again “more thoroughly” and took notes. Prekoski
explained that although he had “some concern” about both Thomas’s mother and
grandmother as witnesses, he decided “as a tactical proposition” to go with “the
69-year-old mother as opposed to the 91- or 92-year-old grandmother.”
Prekoski also stated that he believed the defense strategy was not about bias of the
witnesses. There was a defense based on Thomas’s consistent denial of wrongdoing and
the absence of physical evidence. Prekoski had discussed his concerns about how the
jurors might “stack up” the evidence and whether they should resolve the case; he tried to
express to Thomas that regardless of his “thoughts and theories about what may have
gone on behind the scenes” there was little “beyond speculation” to support his
conclusions. Prekoski stated that his courtroom advocacy at trial would not include any
of the skepticism he had expressed or his concerns about the case. He would argue “the
31
lack of physical evidence and very young, impressionable victims essentially making
statements in a vacuum.”
Prekoski acknowledged that communication with Thomas was “very, very
challenging” and that he had probably raised his voice during their discussions. He
agreed that he and Thomas often ended meetings feeling as though they have not
accomplished what either wanted to achieve. Prekoski was not certain whether their
challenged communication “constitute[d] a breakdown” and noted that sometimes they
were “inefficient,” they “wasted time,” and “spent hours together accomplishing very
little.” Prekoski believed that Thomas was competent, understood the charges against
him, and was present when they were discussing the case.
The trial court asked what effect the difficulties with communication might have
on the trial. Prekoski stated that he was prepared for the People’s case, though he did not
believe the defense was prepared for Thomas to testify on his own behalf. The court
noted that the People’s case was expected to take two weeks and there was still time for
the defense to prepare Thomas, should he choose to testify. The court asked whether the
communication difficulties would prevent Prekoski from preparing Thomas for his
testimony. Prekoski responded, “[i]t has so far.” He explained that their communication
up until that point had made it “almost impossible” to prepare Thomas for his direct
examination. Prekoski explained that Thomas believed he was “incapable of performing
the task at hand” and put no stock in his advice, leading them to “spend hours on end
debating” his failures and lack of advocacy.
Thomas responded that he had never heard Prekoski describe a strategy for the
defense before the Marsden hearing. He believed Prekoski lied and simply tailored a
response based on Thomas’s complaints and the court’s questions. Thomas clarified that
his point about Prekoski not taking his proposed witnesses seriously was not about the
murder allegation, since “obviously there is no record of [Catalina F.] murdering
someone in Costa Rica,” but about showing her “method of operation . . . that she’s
32
habitually doing this to men . . . [a]nd when she doesn’t get what she wants, she discards
them and alleges things against them.” Thomas did not understand how what he said and
knew to be true based on his own life could be a “paranoid rant” like Prekoski made it out
to be.
The trial court denied the third Marsden motion, stating there was “no doubt that
the Defense Counsel has adequately represented the defendant.” The court stated that it
had carefully considered whether Thomas and his counsel were embroiled in an
irreconcilable conflict. It found the failure in communication was due to Thomas’s
“recalcitrant attitude and his focus on matters that are not relevant or admissible at
trial . . . .” The court believed that Prekoski’s lack of familiarity with individuals at the
district attorney’s office “should have taken care of” Thomas’s concern about a potential
conflict, but it had not. The court observed that defense counsel had been “working hard
and skillfully,” and though the defendant was unhappy with Prekoski’s tactical decisions,
it was “the job of any attorney worth . . . his or her salt . . . to tell and shoot straight with
the client about [their] likelihood of success, why certain evidence is not admissible,
and . . . not . . . worth spending . . . any time on.”
The trial court pointed out that defense attorneys typically do not focus on one
type of case, and that Prekoski had handled 50 sex cases and taken five to trial. It found
that Thomas was “a smart man” and had “competent counsel that you can listen to, listen
to the advice, and if you communicate with him, as I expect you to, you will have very
effective assistance of counsel . . . .”
d. Faretta Motion
The trial court reconvened to discuss Thomas’s Faretta request with the deputy
district attorney present. It explained that Thomas had “raised a Faretta issue” during the
Marsden motion, and that the court intended to deny the request as untimely based on “a
lot of factors.”
33
The trial court noted that the case had been continued several times already. This
was the morning of the trial, and Thomas had said he was not ready to proceed if the
Faretta request were granted. The children, as minors, had priority in trials; yet there
would be a significant delay required for Thomas to prepare for his trial. The court also
noted that the defense counsel was prepared to try the case and had demonstrated his
competence and preparation to do so.
The deputy district attorney added that the case was over two years old. There
were already three continuances granted for the defense, and both parties were present for
the trial date that day. The deputy district attorney argued that this appeared to be a delay
tactic or a means to another continuance, given that there was no reference to any Faretta
issue in their prior court dates, including two dates the week before.
Thomas explained that he did not make a Faretta request at the first Marsden
hearing because he did not really want to do it and “would rather have an attorney that
has 400 plus trials under their belt.” He did not make the request with the second
Marsden because he was so “out of [his] mind frustrated” with the public defender’s
office and his attorney for going forward with the recusal motion before a different judge
that he “did the Marsden spur of the moment” because he saw that the motion was not
handled properly. He did not ask to represent himself when the Marsden was denied
because he was still trying for an alternate public defender or for O’Keefe to be
substituted back in. He confirmed, “[t]hat’s what I want. That’s what I need. I feel that
that’s what’s best for me.”
The trial court denied the Faretta request for the reasons it had stated, noting that
Thomas had the right to retain any counsel he wanted but it was now the morning of the
trial and jury selection was under way.
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2. The Trial Court Did Not Abuse its Discretion in Denying the Marsden
Motions
A criminal defendant is entitled under the Sixth Amendment right to assistance of
counsel to substitute another appointed attorney “ ‘ “ ‘ “if the record clearly shows that
the first appointed attorney is not providing adequate representation [citation] or that
defendant and counsel have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.” ’ ” ’ ” (People v. Valdez (2004)

32 Cal.4th 73

, 95 (Valdez).) A defendant who seeks to substitute court-appointed counsel on the
basis of inadequate representation must be permitted to explain the basis of his or her
contention and to relate specific instances of inadequate performance. (People v.
Rodriguez (2014)

58 Cal.4th 587

, 623 (Rodriguez); see Marsden, supra, 2 Cal.3d at
p. 123.) “If the court holds an adequate hearing, its ruling is reviewed for abuse of
discretion.” (Rodriguez, supra, at p. 623.)
“ ‘A defendant does not have the right to present a defense of his own choosing,
but merely the right to an adequate and competent defense.’ ” (Valdez,

People v. Thomas CA6 ( 2020 )

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