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Filed 11/30/21 P. v. Marsh 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY PAUL MARSH,

Defendant and Appellant.

C091983

(Super. Ct. No. 62145181)

Defendant Jeffrey Paul Marsh molested his eldest daughter from the age of 11

until she was 17 years old. He also molested and took sexual photographs of his younger 

great-nephew, who was a minor at the time.

Following a jury trial, defendant was convicted of 26 counts of lewd acts on a 

child (Pen. Code, § 288, subd. (a))1 with multiple victim allegations (§ 667.61, subd. 

1

 Undesignated statutory references are to the Penal Code.
2

(e)(4)) and one count of using a minor to pose for sex acts (§ 311.4, subd. (c)). The trial 

court sentenced him to 180 years to life in state prison.

He contends on appeal that the trial court abused its discretion in denying his 

Marsden2 motions and prejudicially erred in admitting evidence of child pornography.

There was no abuse of discretion in denying the Marsden motions. Counsel 

vigorously and effectively represented defendant at the time of the motions. While trial 

counsel once expressed serious concerns about his relationship with defendant in the 

context of Marsden, the trial court was within its discretion to conclude the relationship 

was not so impaired that the right to effective representation was impaired, and 

subsequent events proved the trial court correct. Finding no abuse of discretion in 

admitting the photographic or cell phone search evidence, we shall affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

Defendant had three daughters with his wife Martina, Jane Doe (Jane), Alyssa, and 

Heather. When they divorced, Jane was 11 years old, Alyssa was eight years old, and 

Heather was six years old. Defendant was given primary custody of the girls.

A. Jane Doe

Following the divorce, defendant and his daughters lived in a house on Five Mile 

Drive in Stockton, where Jane had her own room with a rose theme. Once when she was 

asleep, defendant entered the room carrying a coffee cup that smelled of wine. Jane 

pretended to sleep while he touched her vaginal area on the outside of her pajamas. 

When she opened her eyes and stopped pretending to sleep, defendant gave her a drink of 

red wine from the coffee cup. He then put a vial, similar to a brown oil vial, under her 

nose and told her to sniff it. She sniffed the vial and encountered a strong chemical smell 

2

 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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that made her feel lightheaded. Defendant pulled down her pajamas and exposed his 

genitals. He then put his mouth on her vagina and performed oral sex on her. Defendant 

also put his fingers in Jane’s vagina. He next put his penis inside her vagina, which was 

painful and made her want to scream. Jane screamed inside her head as defendant 

sexually assaulted her. When he finished, there was “wet stuff” between Jane’s legs; 

defendant wiped her legs and vagina with a hot washcloth. Jane went to sleep after he 

left.

Defendant kept sexually abusing Jane every week until she was 17 years old. He 

generally performed oral sex on her, then placed his penis on her face and made Jane 

suck it, followed by vaginal intercourse. Jane hoped defendant would leave her sisters 

alone because he was doing this to her. She did not tell her mother about this during their 

weekend visits because defendant told Jane she and her sisters would be separated and 

put in foster homes if she ever reported the abuse.

The sexual abuse continued when defendant moved the family to a two-story 

home in Galt. Jane had a bedroom next to the family room and defendant would come 

into her bedroom and sexually assault her after her sisters went to sleep upstairs. Each 

time defendant assaulted her, Jane would mentally “check out.”

Defendant next moved the family to another home in Galt, where Jane had a nice 

room with big windows. In addition to the continued sexual abuse of Jane he also started 

a rotation where each girl took turns sleeping in his bedroom. This caused Jane to worry 

that defendant would start abusing her sisters. Defendant gave her an inhalant and 

molested her when it was her turn to sleep in his bedroom. Defendant once gave Jane 

too much inhalant, causing her to believe she was going to lose consciousness. 

The landlady at the second Galt home once came over and asked to use 

defendant’s computer. Jane saw the back of the landlady’s head while she was at his 

computer. Later that night, a Galt police officer came over and talked to Jane and her 

sisters.
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In April 2000, Galt Police Detective Garrett Wood contacted defendant regarding 

a child pornography investigation. Defendant declined to consent to a search of his 

computer. Jane told the officer everything was fine even though defendant was sexually 

abusing her because she feared she and her sisters would be split up into different foster 

homes if she reported the abuse.

Following the investigation, defendant moved the family to his mother’s mobile 

home in Hillsboro, Oregon. Jane and her sisters rarely saw their mother after this move; 

defendant repeatedly told Jane and her sisters their mother did not want to see them. 

Defendant was also very likable and charismatic at church, which led Jane to think that 

no one would believe her if she reported the abuse.

The sexual abuse continued when they were at Jane’s grandmother’s home. Jane 

typically slept with defendant in the spare bedroom, where the abuse usually took place. 

Defendant once sexually abused her in the back of the family’s van at a storage unit in 

Beaverton, Oregon. She did not tell defendant’s mother about the abuse because she did 

not think his mother would believe her.

The family also stayed in hotels and motels. Jane sometimes shared a bed with 

defendant while her sisters shared the other bed. Defendant would sexually abuse Jane 

under the covers so her sisters would not notice. Jane remembered this happening in an 

Oregon Ramada Inn, when she was about 12 years old. Defendant “spoon[ed]” Jane 

from her behind and put his penis in her vagina at the Ramada Inn.

Jane and her sisters attended many different schools; Alyssa recounted attending 

13 different schools from kindergarten to high school. They lived in Lodi, Galt, 

Stockton, and Elk Grove, Hillsboro and Tigard, Oregon, and in Richfield, Washington. 

Heather never finished a school year at the same school because of the family’s many 

moves.

Defendant never allowed his daughters to disclose the family’s address, having 

them instead give a P.O. Box. He repeatedly said they had to hide their address because 
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their mother was trying to do bad things to them and get him in trouble. Heather thought 

defendant was paranoid, as he told her someone was looking for him and that his brother 

was out to get him. Defendant would not let them see the contents of the many storage 

units he had.

Defendant would give his daughters Nyquil before bed, calling it “night-night 

juice.” Defendant gave them Nyquil even when they were not sick. Jane recalled 

defendant giving her a melatonin pill and Nyquil almost every night.

Defendant worked at many different jobs when his daughters were children. He 

always had several computers. Defendant would not give the computer passwords to 

Jane and her sisters and would not let his daughters use them without his permission. 

When Jane was a sophomore in high school, she once was pasting images from one of 

defendant’s computers for a school project; Jane opened a picture gallery containing 

many photographs of naked children. Another time she found a picture of a naked little 

boy that was in defendant’s sock drawer.

Defendant did not stop sexually abusing Jane until she turned 17 years old, got a 

job at Target, and started dating a much older man. Defendant stopped the sexual abuse 

after Jane made clear to him that she did not want the sexual abuse to continue. When 

Jane told defendant she intended to report the sexual abuse, defendant asked her to 

forgive him and forget that it happened.

While they were living in the Shiloh Inn in Tigard, Oregon, Jane came home 

crying one night and told Alyssa and Heather that she had an abortion. When he found 

out, defendant got really upset and yelled at Jane. He printed photographs of aborted 

babies and put them in a Mother’s Day card dated April 15, 2004. A few days later, 

defendant drove to his mother’s house, where he had Alyssa and Heather go in the mobile 

home while defendant remained in the car with Jane. Jane eventually stormed into the 

mobile home, packed, and left them for good. Defendant told Alyssa and Heather that 
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Jane was a liar and a bad person, and that Jane and their mother were out to get 

defendant.

Jane lived with her grandmother when she was a junior in high school. She 

reported the sexual abuse to a pastor after she moved away from her grandmother’s 

home. Jane finally reported the sexual abuse because she was afraid that defendant might 

sexually abuse her sisters and because the pastor encouraged her to report it to the police.

Tigard Police Detective Gary Wayt met Jane on May 31, 2004. Jane told 

Detective Way defendant sexually abused her from the time she was 11 years old until 

she was 17 years old. She also provided the names of two people whom she had told 

about the sexual abuse, Pastor Steven Brockdorf and her friend Tammy Long. Defendant 

was not charged at this time because Detective Wayt could not find him.

B. John Doe 

John Doe (John) was born in April 1998 and lived in Auburn. He has a brother, 

John Doe 2 (John 2), who is four years older. Defendant is their grandfather’s brother; 

John called defendant “Uncle Jeff” when he was growing up.

John remembered defendant visiting his family when he was six or seven years 

old. Starting when he was eight years old, defendant regularly took John to a 7-Eleven 

near the fairgrounds to buy him a Slurpee. When John and defendant were alone at 

John’s house, defendant would show John pictures of naked women, telling John he was 

in relationships with the women in the pictures. Defendant told John how he had sex 

with them.

Defendant also showed pictures of naked women to John when they went to 7-

Eleven. He then asked John if defendant could take photographs of him. John wore 

clothes when defendant first photographed him. Defendant rewarded John with money, a 

toy, or a video game when he photographed John. Defendant began having John turn 

around to expose his backside as he posed. The posing progressed to John pulling down 
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his pants and bending over, exposing John’s buttocks. This led to defendant taking 

photographs of John as John had his penis out and his shirt off.

Defendant usually photographed John when they were underneath the stairs in a 

hallway at John’s home. John also posed for defendant on a silver car at a carwash near 

the 7-Eleven. He posed lying on the hood of the car with his buttocks facing the camera 

with his hands on his hip. Defendant took many more than 20 photographs of John with 

his exposed penis and buttocks.

Eventually defendant showed John how to masturbate by masturbating in front of 

John in the 7-Eleven parking lot. Defendant had John touch himself while defendant was 

masturbating. John got rewards from defendant for getting an erection and for allowing 

defendant to photograph his erect penis. Defendant took such photographs at least 10 

times. He would tell John to hold or stroke his penis as defendant took the photograph.

Defendant eventually asked John to touch and masturbate defendant’s penis, and 

to perform oral sex on defendant, which John refused. He also rejected defendant’s 

request to perform oral sex on him. John allowed defendant to touch his penis on more 

than one occasion. At times, defendant would rub John’s back, shoulders, leg, and thigh 

area near his penis.

John was sent to counseling after getting into trouble at high school. He 

eventually disclosed the sexual abuse to his counselor. John also told his close friend 

about the abuse. He eventually disclosed the sexual abuse to Auburn Police Detective 

Jennifer Turner.

John 2 recalled defendant visiting their family in Auburn many times, usually 

about once a month and staying for the day. He usually visited while their parents were 

not around. Defendant always took John to 7-Eleven for a Slurpee. John 2 eventually 

became concerned by the length of their absence when John and defendant went to 7-

Eleven. When he was in his teens, defendant showed John 2 pictures of defendant’s 

naked girlfriend on the family’s home computer.
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Other Evidence

Defendant and Alyssa lived in separate residences in Washington in 2016. One 

night, defendant left her a frantic voicemail asking why she was not answering her phone 

and that he was going to be arrested. Defendant also wanted Alyssa to pick up a laptop 

and GPS system from her friend Nate Fear.

Nate Fear knew defendant through Alyssa and would sometimes help defendant 

with tasks around the home. One night in May 2016, defendant phoned Fear at 1:00 a.m. 

and said he needed help. When they met, defendant told Fear he was going to be arrested 

and gave Fear a laptop, a GPS system, and a phone with the memory card ripped out. 

Defendant told Fear to hold onto the items.

Fear kept the laptop in his closet for a few months before turning it over to the 

police. The laptop was in a bag that also held a black SD card, an orange SIM card, a 

USB card reader with a SIM card installed, and a thumb drive, as well as several 

photographs of adult male nude models.

Defendant was arrested by Vancouver, Washington Police Sergeant Joseph Graaff

on May 12, 2016, at around 12:30 p.m. Defendant was found loading black garbage bags 

into a black Chevy Impala in a parking lot outside his apartment building. One of the 

bags contained cut up CDs and DVDs. There were hundreds of CDs in the Impala’s 

trunk. A large duffel bag in the trunk contained sealed bottles containing liquids. Some 

of the bottles had labels like “Man Scent” and “Jungle Juice,” which were terms for 

inhalants containing amyl nitrate. The fumes of amyl nitrate, also known as “poppers,” 

were used to create a sense of euphoria and increase flow to blood vessels. They were 

commonly used by persons before engaging in sex.

A USB flash drive, eight SD cards and flash drives, a Maxtor hard drive, and a 

large box of photographs were taken from defendant’s apartment. The apartment 

manager boxed up defendant’s property and moved it to a storage unit after his arrest. 

The manager found many boxes of black security cameras, as well as remnants of 
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shredded CDs. This unit and another storage unit of defendants in Vancouver

Washington were subjected to warrant searches. The storage unit containing property 

from the apartment found containers or vials, “poppers” and melatonin along with 

photographs of John at various ages, including three shirtless photos of him in 2003. 

John’s armpits were exposed in two of the photos. There was also a photograph of him 

leaning against the wall that resembled the wall of the carwash near the 7-Eleven.

Three of the DVDs seized from defendant’s possessions could not be viewed as 

they contained military-grade encryption. A forensic expert was able to retrieve deleted 

files from a SparQ disk3of defendant’s. The files contained 112 photographs of scantily 

clad boys and girls posing in various stages of undress and 330 images of child 

pornography. The images on the disk were described to the jury; 330 images were 

pornographic pictures of children between the ages of five years old and 16, many of 

whom were prepubescent. About 90 percent of the children were male. The children 

were naked or partly naked, in sexual positions alone or with others. In some, children 

were engaged in sex acts with each other, while others had children in sex acts with an 

adult male. There were also many pictures of boys with erections, as well as children in 

poses with their armpits exposed. The remaining 112 images were of child erotica or 

nudity that did not involve them engaged in sex acts or with exposed genitalia. Some of 

these had a child exposing the armpit.

Nine sexually explicit photographs of prepubescent boys were found on an SD 

card in a folder titled, “Zfreunden.” One photo was of a boy with an exposed armpit, 

another of a boy with his penis showing through his pants, and another showed a boy 

with a visible erection through his Speedo. Defendant also had a white binder of printed 

photographs of John and John 2. One photo was of the boys holding presents. There was 

3

 A type of removable data storage produced around 1997.
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also a photograph of John by the carwash near the 7-Eleven, another of him in a tank top, 

and a photo of him at the same carwash with exposed armpits. In another photo, John 

looked like he had just consumed a red Slurpee. There were no nude photographs of 

John.

Photos of John were also found in an SD card and from the Maxtor hard drive. 

The SD card had photos of John shirtless and one of him in boxer shorts, while the hard 

drive had photos of him at various ages. Other photographs of John were found in the 

storage unit from the apartment. These included pictures of him at various ages and had 

photos of him shirtless and of him exposing his armpits. One photo had John standing 

with exposed armpits against a cinderblock wall similar to the same wall at the carwash 

by the 7-Eleven.

An electronic file folder labeled “women” contained pornographic and nonpornographic photographs of women exposing their armpits. Detective Turner found 

defendant had several hundred photos of boys swimming, diving, or wrestling. The focus 

in each picture was either the boy’s armpit or his crotch area. She also found a file folder 

labeled “Download” containing numerous photographs of wrestlers focused on the 

crotch. The laptop case contained photographs of male models, a few nude and some 

with exposed armpits. Two exhibits of photographs of young men and boys with a theme 

of armpits were presented to the jury.

At the time of his arrest, defendant had downloads for files titled: “The Boys,” 

“lockerroomdogtag.jpg,” “towloff.jpg,” “marcus-ricci-underwear.jpg,” “bulges.jpg,” 

“Wrestling+cock+bulge.jpg,” “Speedo-erection.jpg,” “Teen-boys-in-speedo-line,” “Guybulge,” “Boner.jpg,” “Naked+twink,” “Cute+blond+twink+wanking,” 
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“Twink+twink...cumming.gif,” “Twinknakedjerk+off,” “Teentwinkfucked.gif,” and 

“Nakedtwink...caltorture.gif.”4

Dr. Anthony Urquiza testified as an expert on child sexual abuse. He described 

the five parts of the Child Sexual Abuse Accommodation Syndrome (CSAAS): secrecy, 

helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and 

recantation or retraction of the abuse allegation.

The Defense

Testifying on his own behalf, defendant said he divorced Martina in 1996. He had 

full custody, with Martina having visitation until March 17, 2005, when she obtained full 

legal and physical custody of Alyssa and Heather.5 Defendant opposed Martina having 

custody because of her physical abuse of their daughters and her poor lifestyle choices. 

He noticed the girls had bruising and red marks after visiting their mother. Alyssa once 

vomited after a visit and told defendant that Martina had hit her in the stomach; Martina 

also dropped Jane into hot bathwater when she was a baby, scalding Jane’s legs.

Defendant was not consistently employed, so he would rely on Aid to Families 

with Dependent Children (AFDC) welfare and often moved to find employment. He also 

moved to get away from Martina, who harassed defendant and the girls. Jane always 

slept with defendant’s mother when they lived at his mother’s mobile home in Hillsboro, 

Oregon. From his mother’s home, defendant moved the family briefly to a rental home 

in Ridgefield, Washington and then to a manager’s apartment in a Tigard, Oregon hotel, 

where they stayed for two years.

Jane moved in with her grandmother three months before high school graduation. 

When defendant later learned she had an abortion, he sent Jane a 10-page letter on 

4

 Detective Turner testified that “twink” is a term for a slender, slightly built, hairless 

boy.

5

 Jane was over 18 years old at the time.
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abortion that contained multiple color photographs of aborted fetuses, a decision he now 

regrets.

Defendant gave Nyquil to the girls when they had a cold or flu and to help them 

sleep when they lived in the hotel in Tigard, Oregon, which was noisy at night. He 

occasionally gave them melatonin to help with Heather’s nightmares and to help their 

immune system.

Defendant restricted his daughters from using the computer after they crashed the 

hard drive. He had a work computer and eventually got another computer for the girls’ 

schoolwork. Defendant used P.O. boxes and mail services for his address because he was 

afraid of his brother and because Martina’s boyfriend was trying to take the girls from 

school.

Defendant often visited Auburn when traveling to and from Reno. He never 

showed pictures of naked women to John and never took naked photographs of him. 

Defendant took both John and his brother to the 7-Eleven for Slurpee’s. He gave John 

gifts only for holidays or his birthday; he never gave John gifts for taking pictures.

According to defendant, Jane and defendant’s brother John Marsh orchestrated the 

sexual abuse allegations against him. Defendant has not had a good relationship with his 

brother since childhood, and he had threatened defendant several times. Defendant 

denied all of the allegations of abuse made by Jane and John. He was taking things from 

his car to his apartment when he was arrested. He admitted having shredded CDs in his 

apartment on the night before his arrest and having given a computer containing naked 

pictures of men to Nate Fear in the middle of the night.

Defendant had used a program called CCleaner to clean both of his laptops to 

speed them up. He owned a SparQ drive from 2001 to 2003 but had not seen it since 

moving to Oregon. The SparQ drive was in a van that was stolen in 2005 and later 

recovered without its contents; the SparQ drive admitted into evidence was not 

defendant’s.
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The defense played a tape of a call between defendant and Alyssa when defendant 

was in jail. Defendant maintained his innocence during the call. When Alyssa brought

up “poppers”, defendant said that he and Martina loved using them when they lived in 

Lincoln City.

Recalled as a defense witness, Jane said she contacted her mother a few days 

before leaving her grandmother’s house. Her grandmother had asked her to leave at 

defendant’s direction. When she reported the sexual abuse to the police on June 1, 2004, 

Jane had already told the pastor and Martina. Defendant gave her the Mother’s Day letter 

before this. Jane helped Martina by testifying in the custody proceedings following 

Jane’s allegations.

John was also recalled by the defense. His grandfather, defendant’s brother John 

Marsh, reported John’s allegations to the police without John’s knowledge, but had 

discussed the report with John’s parents. John had discussed the allegations with John 

Marsh, who was “blinded by rage.”

Dr. Deborah Davis, a psychology professor at the University of Nevada, Reno

testified as an expert on memory. False memory had been documented in individual 

reports of sexual abuse. Deliberately false reports could be motivated by dislike of the 

accused, or a need for attention or revenge. Unintentional false reports could be caused 

by a misinterpretation of a person’s actions or could be triggered by a parent or therapist 

suggesting abuse to the child or persistently questioning the child about abuse. False 

reporting could also be caused by negative family dynamics such as divorce or custody 

issues.

People remember things differently and memory fades over time, becoming a selftold narrative supported by a few images. Memory is also easily distorted and can be 

created. Interpretation of a childhood event as sexually motivated might be difficult, as 

the child might lack the knowledge to correctly interpret the event. Discovery that there
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are other abuse allegations against the person may make memory of abuse by that person 

more plausible.

Dr. Alan Donelson testified as an expert on pharmacology and toxicology. 

Nyquil’s formula varied over time and over the intended consumer. From 1996 to 2005, 

children’s Nyquil contained no sleep-inducing ingredients. Melatonin is no more 

effective than placebos for inducing sleep.

DISCUSSION

I

Marsden

Defendant contends his conviction must be reversed because the trial court 

erroneously denied all of his Marsden motions regarding the counsel who represented 

him at trial.6

A. Background

1. January 29, 2020 Hearing

Defendant’s first Marsden motion against trial counsel was heard on January 29, 

2020. At the hearing, defendant said the claims against him were false, having been 

orchestrated by his brother, his ex-wife, and by Jane following a period of bad behavior 

by her. He complained that his attorney, John Lyman, had not investigated many options 

for exculpatory witnesses and documentation. Defendant had never met with a defense 

investigator, and, while Lyman met with him several times, the visiting booth was not 

soundproof.

Defendant complained that he had not been informed of defense strategy or 

allowed to make any informed, meaningful decisions about the defense. Lyman’s firm 

had also served the district attorney’s office with a defense game plan that was supposed 

6

 Defendant also made an unsuccessful Marsden motion regarding a prior appointed 

counsel, which is not part of his contention on appeal.
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to be sealed and given only to the court. Lyman had not contacted his ex-wife’s 

boyfriend or expert witnesses he suggested regarding the lifetime stress induced by 

abortion, the effect of physical and emotional abuse on a girl by her mother, and a 

pharmacological expert who could explain the effects of children’s Nyquil and melatonin. 

He also claimed there was exculpatory evidence in the Colusa County Sherriff’s 

Department and family law and custody files.

Defendant gave the name of witnesses who could establish his van had been stolen 

and had contained the data storage device later found in his residence. He also wanted 

counsel to interview several other potential witnesses, including John and Nate Fear. 

Finally, defendant wanted a copy of Jane making a graduation speech as well as photos of 

John in precocious poses taken by his parents, and for Lyman to retain a computer expert 

to examine the various data storage devices.

Lyman replied that upon getting the case file a year ago, he hired an investigator to 

start from scratch by recontacting witnesses and finding people who had not been 

interviewed. He since had one of his junior investigators visit defendant with pertinent 

documents. Lyman had visited defendant 12 times and spoke with him on the phone 

twice. He had an investigator locate the 17 people defendant had on a witness list, but 

not all of those potential witnesses had relevant testimony.

Lyman had explained to defendant his approach of restricting as much evidence as 

possible from being presented by the prosecution. He told defendant that several of the 

proposed witnesses are dead, while others were character witnesses who would allow the 

prosecution to expand the scope of evidence it could present against defendant. Lyman 

was still in the process of contacting all of the people on defendant’s list. He had not 

found any evidence that abortion caused any type of mental health disorder but planned 

to highlight the timing of Jane’s allegations happening after she was ejected from her 

grandmother’s home following the abortion. Lyman had obtained the family law file and 

would be using it to show how Jane’s mother orchestrated the allegations. He spent a lot 
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of time on the case, but was concerned about the health of his relationship with defendant 

in light of the Marsden motion.

Regarding disclosures to the prosecution, counsel admitted that he had attached a 

sealed declaration to his second continuance motion detailing defense reasons for the 

continuance, but the declaration was served not sealed. Lyman learned of it the following 

day, with the assigned prosecutor sealing the declaration herself and returning it to him.

When defendant brought up undisclosed evidence about the “Scott brothers,” 

Martina’s ex-boyfriend, a towing company, and videos possessed by the Auburn Police 

Department, Lyman replied he did not know what defendant was talking about, except 

for the Auburn police videos, which contained no relevant evidence.

The trial court denied the Marsden motion. Lyman then requested a continuance 

based on defendant’s various complaints, which the trial court denied because defendant 

waited so long to make them. Defendant then made another Marsden motion, and the 

trial court set a hearing for February 13, 2020.

2. February 13, 2020 Hearing

Defendant opened the hearing by noting Lyman was appointed just over a year 

ago and had kept promising to send an investigator over regarding exculpatory evidence 

and to review the Auburn police videos. He had also failed to obtain a video of Jane’s 

graduation speech and a yearbook; he had requested both for over a year. Defendant 

wanted a polygraph to prove his innocence and complained that he had received only two 

contact visits from Lyman. Defendant’s primary grievance was that he had not been 

given a meaningful opportunity to participate in his defense. He also complained that at 

the last Marsden hearing, Lyman falsely told the court that defendant’s brother did not 

have any convictions, but subsequently told defendant he had not checked California. 

When Lyman did check California, he found, as defendant had said, that defendant’s 

brother a had prior conviction. Defendant had also found on his own that his brother had 

two prior convictions in Oregon as well.
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Defendant also questioned counsel’s mental acuity and expressed that he cannot 

trust counsel to represent him because of counsel’s political or social bias. He again 

brought up how the Placer County Public Defender’s Office had served the prosecutor 

with privileged information that was supposed to be under seal. He found this and the 

other actions over the last two years had irreparably damaged his defense and the public 

defender firm, depriving him of his Sixth Amendment right to effective representation.

Lyman told the trial court he did not intend to go over what was covered in the last 

Marsden hearing. He and defendant had a difference of opinion on how the trial should 

be conducted. Counsel explained to defendant why they differed on numerous occasions, 

but defendant’s opinion would not change. What counsel heard at this hearing was a 

different situation, as defendant believed he acted with a reckless disregard regarding 

some of his key witnesses, and defendant has a complete lack of trust or confidence in 

counsel, or his office, or both. Defendant felt betrayed and the relationship broken 

beyond repair, and the problems have not remedied themselves, even though Lyman and 

defendant had talked about their differences.

Lyman “flat out” denied falsely telling the court what he had learned about 

defendant’s brother’s background. According to counsel, defendant’s assertion that he 

was working behind defendant’s back “demonstrates a complete break. It is beyond 

irremediable. It is just gone.”

Lyman denied having any leak in his office. Regarding the disclosure of 

confidential information to the District Attorney, he explained that the prosecutor brought 

it to the trial court’s attention when the continuance motion was heard and told the trial 

court that she had stopped reading the material as soon as she realized it should have been

sealed.

The trial court found there was insufficient evidence Lyman was or would be 

incompetent in his representation. Regarding the key issue, “whether there is such an 

irreconcilable conflict” that ineffective representation will result, the trial court found 
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defense counsel is: “steward of the ship in terms of tactics. While there might be a 

disagreement, I respect that and understand that. Still, counsel is steward of the ship of 

that.” The trial court noted in the context of the disagreement between defendant and 

counsel that defendant had a tendency to stray from the material issues, and that the court 

still had to rule over whether issues like the expert testimony on abortion would be 

admissible. There had not been sufficient showing that areas Lyman chose not to explore 

would be relevant to the case.

The court admonished counsel: “Mr. Lyman, I would expect that we all have 

thick skins. We are all subject to criticism. But as a professional, you are obligated to 

mount and to continue to mount a vigorous representation, and I would expect that to 

continue, notwithstanding the current Marsden motion. If that doesn’t work, you need to 

let me know . . . .”

3. March 16, 2020 Hearing

The third Marsden hearing relevant to this case was heard during trial. Defendant 

referenced sanctions the trial court threatened to impose on counsel for not having a 

pharmacological expert witness ready to testify. Defendant again raised the video of 

Jane’s graduation speech and told the trial court he had a witness who could establish 

Heather and Jane together discussed the case with his ex-wife.

Lyman replied that he decided to call the pharmacological expert only after 

hearing Jane and Alyssa’s testimony, he had not been able to locate the graduation 

speech, and that this morning’s testimony was expected to establish there were at least 

conversations among the sisters and their mother. Defendant told the court the 

eyewitness was a former jail inmate who saw Martina and Jane talking about the case. 

He also wanted an expert to rebut the CSAAS testimony.

The trial court denied the motion, finding counsel could make the arguments 

defendant raised and there was no ineffective representation.
19

4. May 14, 2020 Hearing

At this last Marsden hearing, defendant said he was communicating with outside 

counsel for a motion for a new trial. He also referenced the prior Marsden motions as 

demonstrating ineffective assistance of counsel. The trial court denied the motion.

B. Analysis

As explained in People v. Streeter (2012) 54 Cal.4th 205, 230: “ ‘When a 

defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 

2 Cal.3d 118, “the trial court must permit the defendant to explain the basis of his 

contention and to relate specific instances of inadequate performance. A defendant is 

entitled to relief 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.” ’ [Citation.] ‘A 

trial court should grant a defendant’s Marsden motion only when the defendant has made

“a substantial showing that failure to order substitution is likely to result in 

constitutionally inadequate representation.” ’ [Citation.] [¶] ‘We review the denial of a 

Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of 

discretion “unless the defendant has shown that a failure to replace counsel would 

substantially impair the defendant's right to assistance of counsel.” ’ [Citation.]”

“A defendant does not have the right to present a defense of his own choosing, but 

merely the right to an adequate and competent defense. [Citation.] Tactical 

disagreements between the defendant and his attorney do not by themselves constitute an 

‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional 

counsel, that counsel is “captain of the ship” and can make all but a few fundamental 

decisions for the defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 728-

729.)

Dissatisfaction or conflict arising from defendant’s own behavior or unfounded 

beliefs regarding counsel’s competency does not create irreconcilable conflict. (People v. 
20

Clark (2011) 52 Cal.4th 856, 918 [the defendant cannot refuse to cooperate with 

otherwise competent counsel and demand substitution]; People v. Smith (1993) 6 Cal.4th 

684, 688-689, 696-697 [conflict with, lack of confidence in, and not relating to counsel 

did not warrant substitution].) Further, to the extent there is a credibility determination 

between defendant’s complaints and counsel’s statements or explanations at a Marsden

hearing, the trial court is “ ‘entitled to accept counsel’s explanation.’ [Citation.]” (Smith,

at p. 696.)

Defendant asserts his disagreements with counsel were not tactical but “holistic” 

as they involved counsel’s: failure to communicate with him regarding the defense, 

failure to call various witnesses; failure to provide discovery and inform him about 

defense strategy; counsel’s choice of a defense strategy, and counsel’s lack of 

preparedness. He finds many of these deficiencies were long-standing; potential 

witnesses defendant brought up for years, and many of the Marsden motions raising 

issues that had been raised (and not sufficiently addressed) in previous motions. 

Defendant also finds the conflict with counsel was sufficiently great to justify 

granting Marsden relief at some point. Defendant notes his motions were “not made 

rapid-fire, but consistently over a period of several months.” While admitting that he and 

Lyman had tried to work things out, defendant asserts the relationship “was past salvage” 

by the February 13, 2020, Marsden hearing. In support of this last argument, defendant 

notes counsel’s own concerns about the relationship that counsel expressed at the 

January 29, 2020 and February 13, 2020, hearings. He concludes that the breakdown in 

the attorney-client relationship required granting the Marsden motion at the February 13, 

2020, hearing.

The record does not support a finding that trial counsel was ineffective at the time 

of any of the Marsden hearings or at any other point during his representation. Counsel’s 

responses to defendant’s complaints and the trial court’s inquiries at the Marsden 

hearings show he was mounting or in the process of mounting a vigorous, thoroughly 
21

researched, and thoroughly investigated defense. He showed that he was contacting some

of the witnesses defendant sought, but others on defendant’s lists were deceased, had not 

been found, or would not provide testimony relevant to the defense. Counsel also 

disputed defendant’s claims he was not being kept informed about the defense; we defer 

to the trial court’s implicit finding that trial counsel was more credible. Counsel likewise 

explained to the trial court how he had investigated the other evidence, and how he 

planned to use it, such as the family court file, or how it could not be found, like Jane’s 

graduation speech, or how it was not relevant, like the Auburn Police Department videos. 

Notwithstanding defendant’s protestations to the contrary, his dispute with counsel was 

essentially over trial tactics; Marsden does not entitle defendant to resolve such a dispute 

in his favor. (People v. Welch, supra, 20 Cal.4th at pp. 728-729.)

We also find it was within the trial court’s discretion to conclude the relationship 

between defendant and counsel was so irreconcilable that ineffective representation was 

likely. Although the first two Marsden hearings showed a real conflict between 

defendant and counsel, subsequent events demonstrate that the conflict, if not entirely 

resolved, was significantly ameliorated. While trial counsel did state at the February 13, 

2020, hearing that the relationship was broken beyond repair, the trial court did not have 

to accept counsel’s representation. “However, counsel’s statement was based on what 

defendant had told the court and does not itself compel the court to grant new counsel. A 

defendant may not effectively veto an appointment of counsel by claiming a lack of trust 

in, or inability to get along with, the appointed attorney. [Citation.]” (People v. Smith

(2003) 30 Cal.4th 581, 606.) Such is the case here. Counsel’s statements at the February 

13, 2020, hearing was prompted by defendant’s own statements regarding his relationship 

with counsel. The trial court did not have to give defendant an effective veto over who 

represented him by allowing this type of conflict to force the trial court to grant the 

Marsden motion. The trial court’s ruling, denying the motion while telling counsel to 

continue to represent defendant and to have a thick skin apparently worked. Counsel and 
22

defendant were able to work together to mount a vigorous defense subsequent to this 

hearing. Although defendant raised two more Marsden motions after this, those motions 

addressed only tactical differences, and the personal relationship between defendant and 

counsel appeared to be much better at those hearings.

It was not an abuse of discretion for the trial court to deny all four of the Marsden

motions.

II

Child Pornography Evidence

Defendant’s final contention is that the trial court committed a prejudicial abuse of 

discretion in admitting evidence of child pornographic images and search terms related to 

child pornography.7

In general, evidence of a defendant’s conduct other than what is currently charged 

is not admissible to prove that the defendant has a criminal disposition or propensity. 

(Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) Evidence 

Code section 1108 contains an exception to that general rule, and allows the trier of fact 

to consider uncharged sexual offense evidence as evidence of the defendant’s propensity 

to commit sexual offenses and that the defendant committed the charged sexual offense. 

(People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164 (Villatoro); People v. Falsetta

(1999) 21 Cal.4th 903, 912, 915, 922 (Falsetta).) Under Evidence Code section 1108, 

subdivision (a), evidence of the defendant’s commission of another sexual offense or 

7

 Defendant objected to the admission of child pornography images but did not object to 

the cell phone search evidence. While this forfeits the contention on appeal, we 

nonetheless review it on the merits as defendant claims the failure to object constituted 

ineffective assistance. Since we conclude the evidence was properly admitted, the failure 

to object was not ineffective, as any objection would have been futile. (See People v. 

Anderson (2001) 25 Cal.4th 543, 587 [“[T]here is no merit to defendant’s alternative 

contention that his trial counsel was ineffective for failing to object under Evidence Code 

section 352. Counsel is not required to proffer futile objections.”].)
23

offenses is admissible in a case where the defendant is charged with a sexual offense, 

unless its probative value is substantially outweighed by the probability that its admission 

will necessitate undue consumption of time or create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)

In enacting Evidence Code section 1108, the Legislature recognized “ ‘sex crimes 

are usually committed in seclusion without third party witnesses or substantial 

corroborating evidence. The ensuing trial [thus,] often presents conflicting versions of 

the event and requires the trier of fact to make difficult credibility determinations.’ 

[Citation.]” (Villatoro, supra, 54 Cal.4th at p. 1160.) Evidence Code section 1108 

permits the trier of fact to consider evidence that the defendant has a propensity to 

commit sexual offenses in evaluating the defendant and the victim’s credibility. 

(Villatoro, at p. 1164; Falsetta, supra, 21 Cal.4th at p. 911.)

“[B]ecause Evidence Code section 1108 conditions the introduction of uncharged 

sexual misconduct or offense evidence on whether it is admissible under . . . section 352, 

any objection to such evidence, as well as any derivative due process assertion, 

necessarily depends on whether the trial court sufficiently and properly evaluated the 

proffered evidence under that section. ‘A careful weighing of prejudice against probative 

value under [Evidence Code section 352] is essential to protect a defendant’s due process 

right to a fundamentally fair trial. [Citations.]’ [Citation.] As our Supreme Court stated 

in Falsetta, in balancing such Evidence Code section 1108 evidence under Evidence 

Code section 352, ‘trial judges must consider such factors as its nature, relevance, and 

possible remoteness, the degree of certainty of its commission and the likelihood of 

confusing, misleading, or distracting the jurors from their main inquiry, its similarity to 

the charged offense, its likely prejudicial impact on the jurors, the burden on the 

defendant in defending against the uncharged offense, and the availability of less 

prejudicial alternatives to its outright admission, such as admitting some but not all of the 

defendant’s other . . . offenses, or excluding irrelevant though inflammatory details 
24

surrounding the offense. [Citations.]’ [Citation.] In evaluating such evidence, the court 

must determine ‘whether “[t]he testimony describing defendant’s uncharged acts . . . was 

no stronger and no more inflammatory than the testimony concerning the charged 

offenses.” ’ [Citation.]

“On appeal, we review the admission of other acts or crimes evidence under 

Evidence Code section 1108 for an abuse of the trial court’s discretion. [Citation.] The 

determination as to whether the probative value of such evidence is substantially 

outweighed by the possibility of undue consumption of time, unfair prejudice or 

misleading the jury is ‘entrusted to the sound discretion of the trial judge who is in the 

best position to evaluate the evidence.’ [Citation.] The weighing process under section 

352 ‘depends upon the trial court's consideration of the unique facts and issues of each 

case, rather than upon the mechanical application of automatic rules.’ [Citation.] ‘ “The 

‘prejudice’ referred to in . . . section 352 applies to evidence which uniquely tends to 

evoke an emotional bias against defendant as an individual and which has very little 

effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with 

‘damaging.’ ” [Citation.]’ [Citation.] We will not find that a court abuses its discretion 

in admitting such other sexual acts evidence unless its ruling ‘ “falls outside the bounds 

of reason.” [Citation.]’ [Citation.] In other words, we will disturb a trial court’s ruling 

under . . . section 352 only where the court has exercised its discretion in a manner that 

resulted in a miscarriage of justice. [Citation.]” (People v. Dejourney (2011) 

192 Cal.App.4th 1091, 1104-1105, fn. omitted.)

The uncharged offense about which testimony was elicited, possession of child 

pornography (§ 311.11), is one of the crimes enumerated in Evidence Code section 1108, 

and therefore potentially admissible as propensity evidence. (Evid. Code, § 1108, subd. 

(d)(1)(A).) Defendant was charged with lewd acts on a minor (§ 288, subd. (a)), which 

punishes an act done “with the intent of arousing, appealing to, or gratifying the lust, 

passions, or sexual desires of that person or the child” (§ 288, subd. (a)), and using a 
25

minor to pose for sex acts (§ 311.4, subd. (c)), which “proscribes employing a minor to 

produce child pornography.” (People v. Cochran (2002) 28 Cal.4th 396, 398.) The child 

pornography evidence is relevant to the section 288 offense to show a sexual interest in 

children, and possession of child pornography is manifestly relevant propensity evidence 

in support of a charge of producing child pornography. The internet searches were 

likewise relevant as showing an interest in child pornography.

Such evidence was not so prejudicial as to require exclusion under Evidence Code 

section 352. “ ‘The “prejudice” referred to in Evidence Code section 352 applies to 

evidence which uniquely tends to evoke an emotional bias against the defendant as an 

individual and which has very little effect on the issues. In applying section 352, 

“prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 

46 Cal.3d 612, 638.) Child pornography is abhorrent and disturbing, but this evidence 

must be viewed in the context of the charged offenses, that defendant sexually abused his 

eldest daughter and younger great-nephew, and used the boy to produce child 

pornography. Any prejudice within the meaning of Evidence Code section 352 was 

further diminished by the fact that the child pornographic images were not presented 

directly to the jury at trial. Detective Turner described the images to the jury, and the 

images were placed in a manilla envelope labeled “explicit images.” Since the cell phone 

searches did not involve such images, their admission was even less prejudicial and was 

likewise properly admitted.

We also reject defendant’s contention that the adult pornographic and erotica 

images were improperly admitted over his objection. The adult pornography shows 

defendant had such images, partially corroborating John’s testimony that he showed such 

images to him. The other images, with their theme of crotches and armpits was 

consistent with John’s description of many of his poses, and shows these poses and the 

photos of John with exposed armpits found in defendant’s possession were motivated by 

a sexual interest in the boy, making them relevant to the section 311.4 charge and the 
26

section 288 charges involving John. These images were not prejudicial in light of the 

charges and the properly admitted child pornography evidence, and it was not an abuse of 

discretion to admit them.

DISPOSITION

The judgment is affirmed.

 \s\ ,

BLEASE, J.

We concur:

 \s\ ,

RAYE, P. J.

 \s\ ,

HULL, J.