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Filed 11/30/21 P. v. Long CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK HERBERT LONG,

Defendant and Appellant.

C090578

(Super. Ct. No. 18FE000521)

Defendant Mark Herbert Long appeals from his conviction for the first degree 

murder of his wife Susan Roberts (the victim). He argues the trial court erred in 

(1) denying his Marsden1 motion and (2) admitting graphic photographs into evidence. 

We will affirm the judgment. 

1 People v. Marsden (1970) 2 Cal.3d 118.
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FACTUAL AND PROCEDURAL BACKGROUND

Defendant and the victim married in 2015. By 2017, the victim was unhappy and 

told one of her friends in November of that year that she wanted to leave defendant. She 

was concerned about defendant’s drinking. 

On January 6, 2018, the victim and defendant failed to show up to a scheduled 

dinner at a friend’s house. The next day, after unsuccessfully trying to reach the victim

and defendant, the friend and her fiancé went to the victim’s home to check on her but no 

one answered the door. The friend and her fiancé returned later with additional 

companions. They eventually discovered that defendant was in the home but he refused 

to let them in. One of the friends noticed it smelled like “death,” and he knew the victim 

was dead. Scared, they called the police. 

Police arrived and knocked on the door, but defendant did not respond. Officers

noticed the rear sliding glass door was shattered, and they saw defendant moving in the 

house. The SWAT team arrived and eventually entered the home. Officers found 

defendant in the front bedroom, sitting on the bed with his dog. He later told police he 

could not remember anything. Police later reviewed defendant’s phone records and 

found the last activity was a photograph taken just after midnight on January 4 showing 

the victim lying in bed. 

After entering the home, police found the victim dead in the kitchen, lying face 

down with her legs cut off above the thigh. There was blood on the kitchen countertop,

cabinets, and floor. Near the victim’s head, police found a blood-soaked towel and a 

garbage bag containing two human legs. There were socks on the feet and a small piece 

of pajama bottoms near one of the thighs. Also in the kitchen were clothing, an ax, a 

cordless saw with blood on the blade, leather work gloves with the name “Mark” and the 

initials “M.L.,” scissors with blood, rubber cleaning gloves with blood, a cutting board, a 

circular saw, and a saw blade. A bag of saw blades also was found in a bedroom, and just 

outside the bedroom was a drywall saw. Another saw was found in the garage. 
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The forensic pathologist testified that the victim had likely been dead for 

approximately two days before the police found her. She had injuries on her hands 

consistent with defensive wounds. She also had 11 chop wounds (i.e., sharp and blunt 

force injuries) on her head, including multiple skull fractures and brain injuries. Some of 

these wounds were fatal. 

At trial, defendant testified he killed the victim in self-defense. He explained they 

had argued for a few days before the killing, and the victim said their marriage was over. 

Then, early in the morning on January 4, 2018, defendant drank beer and vodka and 

eventually fell asleep on the couch while watching television. He awoke to find the 

victim standing nearby, asking him to leave. Defendant refused, and the victim grabbed a 

knife from the kitchen and came toward him. Defendant moved to his right, got off the 

couch and tripped over a box, which caused him to fall through a window, but the victim 

continued to approach and slash at him with the knife. He eventually grabbed a nearby 

hammer and hit her in the shoulder. Defendant then followed her to the kitchen and hit 

her in the head with the hammer repeatedly because she “wouldn’t stop.” The victim fell 

face down and appeared dead. Defendant said he was too scared to call the police, so he 

drank “[a] lot” of alcohol and tried to sleep. 

On January 5, defendant decided he needed to cut off the victim’s legs so he could 

dispose of her body. He tried various methods, including a knife, an axe, and several 

different saws. He eventually was able to amputate her legs after buying a new saw at a 

local hardware store. The next day he decided this was “madness” and “has to stop.” He 

kept drinking but did nothing more to the body. 

Defendant was charged with first degree murder. (Pen. Code, § 187, subd. (a).) It 

was further alleged defendant personally used a deadly and dangerous weapon while 

committing the crime. (Pen. Code, § 12022, subd. (b)(1).) 

In August 2019, a jury found defendant guilty of first degree murder and found the 

deadly weapon allegation to be true. In October 2019, the trial court sentenced defendant 
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to 25 years to life, plus one year consecutive for the deadly weapon allegation. The trial 

court also imposed various fines and fees. 

DISCUSSION

I

Defendant contends reversal is required because the trial court erred in denying his 

requests for new counsel. According to defendant, he and counsel were embroiled in an 

irreconcilable conflictsuch that ineffective representation was likely to result. Defendant 

notes that during the hearing, he argued his counsel had not adequately met with him and 

failed to provide him with requested discovery. Defendant also questioned counsel’s 

qualifications and claimed counsel did not have experience with murder trials. 

Defendant further argues his counsel breached his ethical duty by “drawing 

adverse facts to the court’s attention and arguing against [defendant’s]interests.” 

According to defendant, his counsel mocked his self-defense theory and “refused to argue 

it to the jury.” In addition, counsel told the court defendant was “extremely difficult” and 

accused defendant of manufacturing the Marsden request to delay the trial. 

A. Additional background

1. August 12, 2019 hearing

i. Defendant’s contentions during the Marsden motion

Defendant brought his first Marsden motion on August 12, 2019, the first day of 

trial proceedings. During the in camera hearing, defendant complained his counsel had 

only visited him approximately 10 times during the prior seven months, and it was not 

enough. Even when his counsel visited, defendant felt they did not spend enough time 

together. During the most recent visit, counsel gave defendant a copy of the in limine 

motions to review and informed defendant he was going on vacation. When counsel 

returned, he spent only five minutes with defendant and said he would not be in court. 

Defendant felt like everything was last minute with his counsel. 
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Defendant also was frustrated because his counsel arranged for trial clothing rather 

than coordinating with his family to get clothing, as defendant had requested. Counsel 

had also failed to request a change of venue, as defendant requested. 

Counsel sent a first-year law student to meet with defendant. Although they spent 

a lot of time together, defendant did not find their meetings productive. The law student 

would bring DVD’s and other things to review, but they would not play on the machines 

at the jail. One time, she did not show up as scheduled because she forgot her driver’s 

license and was unable to get through security. 

Defendant complained his counsel had not adequately looked for exculpatory 

evidence. For example, counsel had failed to obtain e-mails from the victim or cell 

phone records from defendant and the victim, even though defendant had asked for them. 

Defendant felt his counsel was also confused by the phone records, since the time zones 

were different between his and the victim’s phones. Defendant wanted to see all the 

potential evidence, especially the few months before the killing, because there might be 

something exculpatory. 

In addition, defendant suggested his counsel had never tried a murder case before, 

let alone a high stakes first degree murder case. According to defendant, his counsel told 

him, “I don’t know what to do.” Counsel also told defendant his “statements about the 

facts of my case are ridiculous and that I’m crazy and that he knows more about my case 

than I do.” Counsel had recently gotten some of the facts mixed up, and defendant felt 

this showed his counsel did not understand his case. In addition, at one point, defendant 

said he should have just pleaded guilty, and his counsel “was almost like, ‘Yeah, you 

might as well.’ ” In sum, defendant was “frustrated,” and felt their relationship had 

deteriorated “way beyond a clash of personalities.” 

ii. Defense counsel’s response

Defense counsel explained he had been a lawyer since 1992. For his first 15 years 

he ran a private practice focused on criminal, dependency, and delinquency. He 
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supervised 10 or 11 attorneys. He began working at the public defender’s office in 2006, 

and had worked there ever since. At the time of the hearing, he was the most senior 

attorney in the trial division. He did not keep track of the number of trials he had done 

over the past 27 years, nor his win-loss percentage (although he did state that it was “not 

good”). 

Counsel had met with defendant at least 10 times. He also read each of the more 

than 60 letters defendant sent to him, cataloguing them in a two-inch binder. The law 

student had met with defendant for over 25 hours and helped show him the 45 different 

discs and thumb drives of evidence in the case. 

Counsel had tried to see defendant twice the previous week but had to leave 

because defendant’s “behavior became out of control,” making the meetings “not 

productive.” Defendant berated his counsel and had emotional outbursts, even using his 

cane to beat the door. Counsel was so unsure of how defendant would behave that he 

even prepared a motion to have defendant shackled during the trial. Although counsel 

had spaced his visits by a few days to “give him a couple days to mellow out,” defendant 

was still “unable to control his emotions and stormed out of the room.” At one point, 

counsel described defendant as “extremely difficult.” In sum, even though counsel had 

tried to see defendant before trial, defendant was “unwilling and unavailable to do that.” 

Counsel explained he had prepared with defendant for trial. For example, he had 

asked defendant to review and comment on his draft in limine motions and statement of 

facts. He also had met with defendant for two hours regarding the trial readiness 

conference and to go over the evidence. Counsel also had received and reviewed all 

2,000 pages of discovery, including the phone records. He admitted he was confused 

about the different time stamps on the calls. Defendant had also seen all the phone 

records. Counsel had hoped to discuss the various texts sent by the victim to other 

witnesses, but defendant was “unable or unwilling to speak with [him] about strategy on 
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that.” Defendant had also been given the opportunity to review other evidence with the

intern, including the e-mails, but defendant had instead “rant[ed] for two hours.” 

Counsel reiterated that there was no indication this was exculpatory evidence since 

the quarrel that led to the killing was sudden. Defendant told counsel the argument arose 

in the middle of the night, and the victim approached defendant with a knife. Defendant 

responded with a hammer, and the victim died. Given that the victim was “physically 

disabled, unarmed, and smaller than [defendant],” counsel “would never in a million 

years say this was a preplanned murder” attempt by the victim. Counsel acknowledged 

defendant might testify otherwise, but counsel preferred to avoid the argument because it 

was “not plausible” and would cause him to lose credibility with the jury. 

Regarding the e-mails, counsel tried to show them to defendant, but they were in 

an unusable format. Nevertheless, counsel had reviewed the most recent ones and 

concluded they were not exculpatory or otherwise relevant. Defendant told counsel he 

wanted to argue self-defense based on the victim suddenly attacking him with a knife 

when they quarreled in the middle of the night. There was no indication the victim had a 

prior plan to murder defendant. Under the circumstances, counsel did not feel it 

necessary to review the older e-mails, especially since he could simply ask the witnesses 

who knew the victim if they had received any e-mails where she threatened to harm 

defendant. 

In counsel’s opinion, defendant was trying to “manufacture a continuance” 

because defendant wanted to avoid trial. Counsel noted that defendant had previously 

requested two other Marsden hearings. The first time, defendant dropped it. The second, 

defendant failed to appear. 

In sum, counsel advised the court he was “prepared” and “ready to go.” He had 

worked late and on the weekends, and he had informed defendant of new developments 

in the case, including the amended information. Counsel also had the knowledge from 
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defendant’s prior lawyer, who worked in the same office as counsel and had met weekly 

with defendant for nearly a year before he was removed to change assignments. 

The trial court stated that to the extent there were conflicts between defendant’s 

statements and those from counsel, the trial court believed counsel. The trial court found 

counsel had properly represented defendant and “would continue to do so.” Although 

there might be some personality conflicts, the court did not find there was such a 

breakdown in the relationship that counsel could not continue to properly represent 

defendant. The trial court advised defendant to cooperate with counsel. 

2. August 15, 2019 hearing

Defendant again asked for a Marsden hearing on August 15. During the in camera 

hearing, defendant complained his counsel had not been to visit him or even talked to him 

during trial breaks. Defendant also said his counsel refused to explain what he planned to 

say during opening argument. He then asked counsel not to give an opening statement. 

Counsel disagreed, and still refused to tell defendant what he planned to say. Defendant 

was concerned, stating, “This is my life.” 

The court responded that it was common for the defense to reserve the opening 

statement. In addition, the court had given defendant a copy of the calendar. 

Counsel stated he was prepared for trial and reminded the court that when he tried 

to visit defendant the week before, defendant had twice thrown him out and refused to 

speak with him. Defendant had also been out of control emotionally and beaten the walls 

with his cane. Even during the hearing, defendant interrupted counsel. Counsel stated he 

knew defendant’s defense and understood what defendant would say on the stand. 

Counsel had reviewed the draft direct examination and cross-examination questions 

drafted by defendant, but felt he was not required to use them. 

Counsel said he had a general idea of what he would say during opening statement

but, as a practice, he did not rehearse. Counsel offered to share his plan with defendant, 

and defendant responded that was all he wanted. 
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The court agreed to delay opening statements until after lunch to allow defendant 

to speak with counsel. It asked defendant to avoid interrupting his counsel and allow him 

to “communicate with you.” The court stated it would “treat this as a misunderstanding” 

and a withdrawal of the Marsden motion. 

B. Applicable law and analysis

A trial court must grant a defendant’s Marsden motion for new counsel only if 

“ ‘the record clearly shows that the appointed counsel is not providing adequate 

representation or that defendant and counsel have become embroiled in such an 

irreconcilable conflict that ineffective representation is likely to result.’ ” (People v. 

Taylor (2010) 48 Cal.4th 574, 599.) 

We review a trial court’s denial of a Marsden motion for abuse of discretion, and 

we will not disturb the ruling “ ‘unless the defendant has shown that a failure to replace

counsel would substantially impair the defendant’s right to assistance of counsel.’ ” 

(People v. Taylor, supra, 48 Cal.4th at p. 599.) “[T]actical disagreements between a 

defendant and his attorney or a defendant’s frustration with counsel are not sufficient 

cause for substitution of counsel.” (People v. Streeter (2012) 54 Cal.4th 205, 231.) In 

addition, “the number of times one sees his attorney, and the way in which one relates 

with his attorney, does not sufficiently establish incompetence.” (People v. Silva (1988) 

45 Cal.3d 604, 622.)

None of defendant’s complaints indicated that he and counsel were embroiled in 

such an irreconcilable conflict that ineffective representation would likely result. 

Whatever personal differences defendant had with defense counsel, counsel was 

experienced in criminal law, and he was “prepared” and “ready to go” to trial. He was 

familiar with all 2,000 pages of discovery and defendant’s argument that he acted in selfdefense. Counsel had also worked extensively with defendant to prepare for the trial, 

despite defendant’s emotional outbursts. He had met with defendant at least 10 times, 

and he had evaluated each of defendant’s more than 60 letters to him. Counsel’s law 
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student also had met repeatedly with defendant to review the evidence. Although counsel 

was unable to provide defendant with some of the victim’s older e-mails due to 

formatting issues, these e-mails were not relevant because defendant told counsel that he 

wanted to argue he killed his wife in self-defense during their sudden argument. Even if 

counsel’s explanations of the relevance of the older e-mails suggested to the court that 

defendant would not have a strong argument that the wife planned to murder him, it was 

not improper for counsel to provide context as to why he had not provided the evidence 

that defendant was now requesting. 

To the extent defendant asserted during the hearing that counsel had mocked his 

self-defense theory, refused to argue his preferred theory of the case, or suggested he 

should have pleaded guilty, counsel responded he was ready for trial, familiar with the 

evidence, and understood defendant’s defense and what defendant would say on the 

stand. It was not unreasonable for the trial court to find counsel more credible than 

defendant. Moreover, during the second hearing, defendant appeared satisfied when the 

trial court granted him time to discuss opening argument with counsel, and defendant did 

not object when the trial court said it would treat the Marsden motion as withdrawn. 

Under the circumstances, we find no abuse of discretion. 

II

Defendant next argues the trial court abused its discretion and violated his Fifth, 

Sixth, and Fourteenth Amendment rights in admitting two photographs from the crime 

scene showing the victim’s severed legs. According to defendant, the photos were 

irrelevant and introduced solely to inflame the jury, especially since the prosecutor “drew 

the jury’s attention” to the photos during closing argument. He notes he admitted during 

testimony that he dismembered the victim’s body after her death because he believed he 

had to dispose of it. Given that he was only charged with murder, argues defendant, the 

only issues before the jury were whether he committed a homicide and, if so, what type, 

meaning the photographs did not tend to prove or disprove any disputed issue and were 
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inadmissible under Evidence Code section 350.

2

 Defendant further argues the prejudicial 

impact greatly exceeded the photos’ limited probative value and therefore should have 

been excluded under section 352. We disagree.

A. Additional background

During their investigation, police took video and photographs of the scene before 

marking potentially important evidence with placards. Another set of photographs was 

taken after the evidence placards were placed. The two sets of photographs were nearly 

identical, except that there was no photo of the severed legs in the set with the placards. 

The video also did not show the legs. 

The prosecution sought to introduce the photos and the video. Defense counsel 

objected to introducing any of the photographs, but tentatively agreed to introducing the 

video and the evidentiary photographs with the placards. The prosecutor also asked the 

court to admit two photos from the other set that showed the severed legs, since the video 

did not show them. 

The court, which had looked at the two photos, found them admissible. The court 

reasoned that the prosecution intended to rely primarily on the video to show the crime 

scene but wanted to use the two photos to show evidence that was not on the video. The 

court explained: “To a certain extent all homicide photos are graphic, gruesome just by 

the nature of the offense and by the nature of the photographs. And although 

photographic evidence is sometimes cumulative of testimonial evidence. That fact does 

not require[ ] its exclusion because the photographic evidence could assist the jury in 

understanding and evaluating the testimony. [¶] And it is just a factor to consider.” The 

court found the probative value outweighed any probability of substantial danger of 

undue prejudice, especially since the court intended to voir dire the jury about the 

2 Undesignated statutory references are to the Evidence Code.
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“graphic nature of some of the evidence.” Although this would not “completely inoculate 

them,” at least the jury would be prepared. 

During closing argument, the prosecutor described the scene of the victim’s death 

and reminded the jurors that the two photos showed (1) the bag containing the victim’s 

legs and (2) the legs. “That’s what [ ] defendant did to her,” she argued. She also argued 

she had shown so many photographs of the scene because it showed how defendant had 

attacked the victim in a “well-planned out ambush,” rather than in self-defense. The 

photos also showed the crime scene was “very clean,” indicating defendant had gone to 

great lengths to “contain this crime scene.” The prosecutor argued defendant showed 

consciousness of guilt by cutting off the victim’s legs. 

B. Analysis

The trial court may exclude relevant, otherwise admissible evidence if it creates a 

substantial danger of prejudicing, confusing, or misleading the jury, or would consume an 

undue amount of time. (§ 352.) As courts have explained, the “prejudice” in section 352 

refers to evidence that “ ‘uniquely tends to evoke an emotional bias against a party as an 

individual, while having only slight probative value with regard to the issues.’ ” (People 

v. Scheid (1997) 16 Cal.4th 1, 19 (Scheid).) Photographs of victims in murder cases are 

always disturbing, but they need not be excluded unless they are “unduly gory or 

inflammatory.” (Ibid.) For example, it may be necessary to exclude photographs that 

depict “a close-up view of the victims’ wounds,” a “revolting portraiture displaying 

horribly contorted facial expressions,” badly decomposed bodies, or bodies disfigured 

during autopsy. (Id. at pp. 19, 20.)

We review a trial court’s ruling to admit or exclude evidence for abuse of 

discretion (People v. Ledesma (2006) 39 Cal.4th 641, 705), and we will not disturb a trial 

court’s exercise of its discretion under section 352 “ ‘unless the probative value of the 

photographs clearly is outweighed by their prejudicial effect.’ ” (Scheid, supra, 16 
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Cal.4th at p. 18.) Admission of evidence violates federal due process “only if it makes 

the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.) 

Here, defendant claimed he killed the victim in self-defense, while the prosecution 

asserted that he attacked her. Despite defendant’s contentions, the photographs were 

relevant to the prosecution’s case because they cast doubt on defendant’s theory of selfdefense by suggesting defendant was conscious of his guilt and sought to amputate the 

victim’s legs and dispose of her body. (See People v. Anderson (2018) 5 Cal.5th 372, 

391 [“[e]vidence showing consciousness of guilt . . . is generally admissible within the 

trial court’s discretion”]; see also People v. Butler (1970) 12 Cal.App.3d 189, 193 

[“ ‘[a]ny conduct of a defendant subsequent to the commission of the crime tending to 

show consciousness of guilt is relevant and admissible’ ”].) 

In addition, the trial court did not abuse its discretion under section 352. The two 

photographs were not unduly prejudicial because they were not unduly gruesome. In 

addition, they were the only visual evidence of the severed legs and were shown together 

with the video and other photos of the crime scene. Although the prosecutor mentioned 

the two photos during her closing argument, she did so only briefly and as part of her 

overall argument that the crime scene indicated defendant planned to murder the victim

and exhibited consciousness of guilt. 

Moreover, the photographs were not cumulative merely because the forensic 

pathologist testified about the victim’s injuries and cause of death, or because defendant 

testified that he dismembered the victim’s body. As courts have explained, a prosecutor 

is not obliged to merely present evidence via witness testimony, and a jury is “ ‘entitled 

to see how the physical details of the scene and the bod[ies] supported the prosecution 

theory.’ ” (Scheid, supra, 16 Cal.4th at p. 16.)

Given our conclusions, we also reject defendant’s argument that the admission of 

the two photographs rendered the trial fundamentally unfair in violation of defendant’s 

federal constitutional rights. 
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DISPOSITION

The judgment is affirmed. 

 KRAUSE , J.

We concur:

 MURRAY , Acting P. J.

 RENNER , J.