People v. Auxila CA1/5

Filed 9/20/24 P. v. Auxila CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, A169442 Plaintiff and Respondent, v. (Marin County Super. Ct. No. SC222386A) ISHMEL AUXILA, Defendant and Appellant.

Ishmel Auxila (appellant) appeals following his convictions for making criminal threats (Pen. Code, § 422) and violating a criminal protective order (id., § 166, subd. (c)(1)(A)). The sole issue on appeal is whether the trial court erred in denying appellant’s motion made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We affirm. BACKGROUND1 In July 2023, a jury found appellant guilty of violating a criminal protective order, but was unable to reach a verdict on the criminal threats charge and the court declared a mistrial on that count.

1 We recite only those facts relevant to this appeal.

1

In September 2023, before the start of a second trial retrying appellant on the criminal threats count, appellant brought a Marsden motion. At the Marsden hearing, appellant raised multiple issues with his attorney, a deputy public defender: (1) the public defender’s office had a conflict of interest, which appellant did not identify; (2) he provided his attorney with contact information for multiple potential witnesses but they were not subpoenaed or contacted in sufficient time; (3) he requested his attorney subpoena documents; and (4) he requested his attorney make certain motions and other filings, identifying only a motion based on double jeopardy. Appellant’s attorney responded that she had been a lawyer for 27 years and had been representing appellant since his arrest in March 2023. With respect to the asserted conflict of interest, counsel stated that in a prior case, the prosecution intended to call appellant’s father as a witness and the public defender’s office had previously represented appellant’s father, thereby creating a conflict with representing appellant in that case. In this case, the prosecution did not intend to call appellant’s father as a witness, so that conflict was not present. With respect to the potential witnesses, the attorney’s investigator had attempted to contact them, was able to locate two, and one agreed to testify and was on the witness list. The second located person stopped responding to the attorney and her investigator, and counsel made the strategic decision not to subpoena that person because the resulting testimony could be bad for appellant. As for the documents identified by appellant, counsel had subpoenaed them from the Internal Revenue Service but had not yet received them. With respect to the filings requested by appellant, counsel stated she had repeatedly requested the court release appellant before trial but the requests were denied. Counsel had researched double jeopardy and found caselaw adverse to appellant’s position, but had