People v. Jackson

Filed 02/27/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051606

v. (Super. Ct. No. 13NF3826)

MICHAEL JAMES JACKSON, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, James E. Rogan and Scott A. Steiner, Judges. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

The trial judge in this case exercised uncommon common sense in a ruling that guaranteed defendant would not have to face the beggar‟s crossroad of having to choose between revealing damaging information to the judge about to hear his bench trial or giving up his chance at a new attorney. This sagacity is assigned to us as error. Appellant Michael James Jackson was convicted of multiple counts of sexual misconduct arising from his work as a massage therapist. His sole claim on appeal is that the trial judge erred in transferring his motion for a new attorney – commonly known as a Marsden motion (see People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) – to another judge for adjudication. Although Marsden motions generally should be heard by the judge who is assigned to the defendant‟s case, the transfer here was justified because at the time appellant made his motion, he was facing a bench trial in front of the very judge to whom he would have addressed his complaints. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Appellant was charged with committing sex crimes against four different women to whom he provided massage services. He was also charged with one count of possessing child pornography. The trial judge, James E. Rogan, granted appellant‟s motion to sever the pornography charge, and appellant waived his right to a jury trial on that charge. Then, while that charge was awaiting resolution, Judge Rogan conducted appellant‟s jury trial on the remaining charges. At the jury trial, appellant‟s clients Tina M., Erica V., and Lisa R. testified appellant touched and/or digitally penetrated their vaginas while massaging them. Although all three women objected to this conduct, appellant assured them he was doing it for therapeutic purposes, i.e., to break up scar tissue or “work out knots” in their genitalia. The evidence also indicated appellant had sexual intercourse with Antoinette Y. against her will during the course of a massage. Testifying on his own behalf, appellant denied touching Erica or Lisa inappropriately. He admitted touching Tina‟s vagina and having sexual intercourse with