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Name: People v. Panighetti (2023) 95 Cal.App.5th 978
Case #: C095100
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/25/2023

Trial court did not abuse its discretion in denying multiple Marsden motions where disputes between trial counsel and defendant were over tactical decisions and trial counsel presented a defense consistent with the law. Defendant and Jill Doe practiced bondage, discipline, sadism, and masochism (BDSM) over a number of years together. Doe contacted police several times throughout the relationship when the encounters turned violent. Doe and Defendant reconnected in 2020 and their initial consensual sexual encounter was followed by violent encounters. Defendant was charged with multiple sex offenses. At trial, the jury rejected the defense that, by virtue of Doe’s written agreement to consent to BDSM at all times and be submissive to the defendant without restriction, she had consented to the nature of their sexual encounters. The jury found defendant guilty of the charged offenses. He raised multiple issues on appeal, including that the trial court abused its discretion in denying his seven Marsden requests before and throughout trial. Held: Affirmed, but conduct credits modified. The trial court did not abuse its discretion because the defendant and trial counsel’s disputes principally concerned tactical decisions about evidence, which do not constitute irreconcilable differences. At the root of many of defendant’s claims was his belief that the written agreement provided him carte blanche for everything he did. While not called on to resolve the legitimacy of the agreement, the court noted that the existence of the agreement did not provide insurmountable evidence of defendant’s actual innocence, but at best, provided support for whether Doe consented to the acts at issue. Counsel mounted a defense consistent with the law when he emphasized facts supporting Doe’s consent and attacking Doe’s credibility. Additionally, while counsel and defendant were often frustrated in their attempts to communicate, it was clear that it was defendant, not counsel, who created any lack of respect; a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.

Jury instructions that permitted the jury to consider uncharged offenses against the same victim proven only by a preponderance of the evidence did not impermissibly lower the standard of proof for the charged offenses. At trial, Doe testified that defendant committed prior uncharged criminal sex offenses and domestic violence upon her. The jury was instructed with CALCRIM Nos. 1191A and 852A, which permit the jury to use evidence of these uncharged offenses as propensity evidence if the People have proved the uncharged offenses by a preponderance of the evidence. Defendant argued the instructions confused and misled the jury about the prosecution’s obligation to prove the charged crimes beyond a reasonable doubt. In People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court rejected this argument, finding it is not reasonably likely a jury would conclude that the lower standard of proof applicable to the uncharged offenses would apply to the proof of the charged offenses. The analysis in Reliford is not changed because the uncharged crimes here were committed against the same victim, as opposed to uncharged crimes committed against third parties.

A third strike sentence of 280 years to life was not cruel or unusual, nor did it violate defendant’s due process rights. In this case, defendant was convicted of five violent felonies and three serious felonies, and had two strike priors. As a third strike offender, defendant was sentenced to an aggregate term of 280 years to life. The imposition of this sentence does not constitute cruel and/or unusual punishment within the meaning of the federal and state Constitutions merely because it cannot possibly be completed in his lifetime. Nor does this sentence violate due process merely because it constitutes a de facto life without the possibility of parole sentence without special circumstances findings. Here, the sentence was not unconstitutionally disproportionate to the crimes. A comparison of this punishment to that of murder is misguided, because the three strikes law punishes not only defendant’s current offenses, but also his recidivism.

The parties agreed that defendant’s presentence custody credits should have been calculated according to section 4019, and his worktime credits calculated according to section 2933.1. The court modified the judgment to reflect the award of actual custody credits and worktime credits.