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Name: People v. Lee
Case #: B140904
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 01/28/2002
Subsequent History: As modified on 2/20/02.
Summary

Appellant did not receive ineffective assistance of counsel because his attorney failed to file a timely peremptory challenge to the trial judge. Although counsel filed the 170.6 challenge, he filed it late because he claimed confusion about whether the transfer to the judge in question was just for motions or for the trial itself. The court found that the record was clear and dismissed the motion as untimely. Here, the appellate court found that counsel’s “honest mistake” did not deprive the defendant of effective assistance of counsel. Further, there was no showing that the loss of the 170.6 motion deprived appellant of a defense or prejudiced him. The trial court also did not err when it failed to treat appellant’s complaints about the late 170.6 as a Marsden motion. Appellant did not make a Marsden motion, and in fact, responded in the negative when the court inquired about whether he wanted to do so. The trial court also erred when it admitted the results of the witness’s polygraph examination and the subsequent interrogation based on the results of the examination. The evidence was clearly offered to prove guilt, not for the collateral purpose offered by the prosecution, and were therefore prohibited by Evidence Code section 351.1, subdivision (a). Further, it was reasonably probable that without the inadmissible polygraph evidence, the jury would have reached a more favorable result, and therefore reversal was also required on these independent grounds. Where police coerced the statement of a witness who identified appellant as the shooter, the statement should not have been admitted. Police made improper threats, misrepresentations, promises of leniency, and exploited the witness’s areas of vulnerability. The interrogation by police was not designed to produce the truth, but to support a version of events the police had already decided upon. Therefore, the evidence was “inherently unreliable.” Further, the error was prejudicial beyond a reasonable doubt. Without the identification, the prosecution evidence was “slim.” Therefore, reversal was required. Appellant did not receive ineffective assistance of counsel because his attorney failed to file a timely peremptory challenge to the trial judge. Although counsel filed the 170.6 challenge, he filed it late because he claimed confusion about whether the transfer to the judge in question was just for motions or for the trial itself. The court found that the record was clear and dismissed the motion as untimely. Here, the appellate court found that counsel’s “honest mistake” did not deprive the defendant of effective assistance of counsel. Further, there was no showing that the loss of the 170.6 motion deprived appellant of a defense or prejudiced him. The trial court also did not err when it failed to treat appellant’s complaints about the late 170.6 as a Marsden motion. Appellant did not make a Marsden motion, and in fact, responded in the negative when the court inquired about whether he wanted to do so.