10 ql 12 13 14 15 16 1 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA counry OF MONTEREY sauimas o1vision CERTIFIED Copy HON. RUSSELL D. SCOTT, JUDGE DEPARTMENT 2 PEOPLE OF THE STATE OF CALIFORNIA, Plaintifé, ) ) ) ) vs. } Case No. $S101826A } JOSEPH JOHN CUBBAGE, ) ) ) Defendant. PARTIAL TRANSCRIPT OF PROC! MARSDEN MOTION REPORTER INGS APPEARANCE For the Defendant: JAMES EGAR PUBLIC DEFENDER BY: JEREMY DZUBAY ASSISTANT PUBLIC DEFENDER STEFANI CORTOPASSI, CSR 11993, OFFICIAL REPORTERSALINAS, CALIFORNIA MAY 8, 2013 PROCEEDINGS THE COURT: Joseph Cubbage. THE DEFENDANT: Your Honor. MR. DZUBAY: Jeremy Dzubay, Deputy Public Defender. THE COURT: And Mr. Cubbage is here. We're in camera, out of the presence of the public, court attaché only, for a Marsden motion. And I'll say it now. This hearing is confidential and is to be sealed after it's completed, not to be transcribed without further order of the court. So, Mr. Cubbage -- THE DEFENDANT: Your Honor. THE COURT: -- a Marsden motion is a motion where you're requesting the Court to relieve your attorney. THE DEFENDANT: Yes, sir. THE COURT: Okay. THE DEFENDANT: And just to let this court know now that I -~ I have a high level of anxiety, and I've had to write things down, which I'm going to have to follow my notes so that I keep my train of thought. THE COURT: Go. THE DEFENDANT: And I do appreciate the Court taking the time to hear me today. I've been in front of this court nearly one hundred times, in front of you, your Honor, And I -- as my father STEFANI CORTOPASSI, OFFICIAL REPORTER 607wn e 10 ree 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would call, I'm not a student of law. However, I'm going to do my best today. And thank you for your patience. I'm filing this Marsden motion on two grounds, if the Court would allow me. One is incompetent counsel. And I'm going to be providing those lists of reasons. The second is conflict of interest. And that conflict of interest is by where my current lawyer is not able to, one, provide a habeas corpus. File a habeas corpus on my behalf; and second, he will not be able to file an appeal. I'd like to go into -- since I was charged by the Monterey County District Attorney's Office in, I believe, August of 2010, I've been appointed three lawyers -- actually, four lawyers, but one was just for an appearance. And it started with -- THE COURT: I'm going to actually slow you down just a little bit. THE DEFENDANT: Yes, sir. THE COURT: I need you to talk about him, not about other people. I'm aware that you were represented by other people. This only has to do with Mr. Dzubay and your -~ kind of your relationship with him. So, can you do that? The conflict of interest or incompetent counsel, I don't care which one you start with. THE DEFENDANT: Okay. I'm spinning out now, because I've kind of listed in order of how I was going to go about this. So, if you give me a moment. THE COURT: Go through your list, but maybe STEFANI CORTOPASSI, OFFICIAL REPORTER 60810 a1 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 abbreviate it with the idea that I'm concerned about you and him, not other people. THE DEFENDANT: Yes, sir. Okay. So, I went from Heather Rogers, to Lisa Navarro, and then eventually I was given Jeremy Dzubay, who then was taken away from me and I was given Lisa Navarro again. And based on the incompetent counsel, your Honor -- THE COURT: Okay. THE DEFENDANT: -- this has to do with Ms. Lisa Navarro. And she made statements to me and -- that, one, that we have limited resources. We're short staffed by three to five lawyers, and our case loads are overwhelming us. We don't have the time, money, or resources to provide the zealous defense that your case needs. Over the nearly one hundred court dates that I've had, I've met with Ms. Navarro very limited times. Most of those meetings were in court, just prior to being heard. THE COURT: She's irrelevant right now. She is no longer working for the Public Defender's Office. THE DEFENDANT: Okay. Let me try and move on then, your Honor. So, as my case moved forward, Ms. Navarro stated that an investigator would be appointed to me when one was available. It took nine months for an investigator to be assigned to my case, your Honor. Ms. Navarro was calling my dad by the name of Mr. Shapiro when his name is Johnny D. Cubbage, your Honor. Johnny D. Cubbage. STEFANI CORTOPASSI, OFFICIAL REPORTER 609)10 1 12 13 14 15 16 17 18 19 20 al 22 23 24 26 27 28 Ms. Navarro scheduled two separate meetings with THE COURT: Ms. Navarro is out of the picture THE DEFENDANT: Okay. All right. Let me move on. I met with Mr. James Egar on two separate occasions while Ms. Navarro was there, and it was to file an appeal for my case, appeal on my no contest plea. Excuse me. I want to -- I want to retract that. I met with Mr, James Egar two times prior to taking the deal that I took. Mr. Egar and Ms. Navarro, through their comments, statements, and what I feel they put me a position where I felt like my plea was involuntary, your Honor. We don't have the time, the money, or the resources. We're short staffed three to five lawyers. At sentencing, on May the 20th, when Honorable yourself, Judge Scott, sentenced me to one year without time in the Monterey County Jail, I immediately, at that point in time, in custody -- and I was in custody. It's irrelevant. Just for the record, I was standing in line at my local college, enrolling, and a family member gave me a hug and a kiss, told me she loved me THE COURT: JI heard all about it. THE DEFENDANT: So, at sentencing, after you had sentenced me, I immediately asked Ms. Navarro to file an appeal, right then and there, and she made the stateme: me, she said, I'm no longer your lawyer, I am no longer representing the Monterey County Public Defender's Office, and I have a plane to catch to Costa Rica. STEFANI CORTOPASSI, OFFICIAL REPORTER 61010 a 12 13 14 15 16 17 18 19 20 al 22 23 24 25 26 27 28 THE COURT: Mr. Cubbage, the problem with this is -- you know, maybe I'm wrong. Maybe I'm in some other world. But I have to determine whether or not the attorney that you have in this courtroom should continue to represent you, not -- not Ms. Navarro, who doesn't. THE DEFENDANT: Okay, your Honor. I hear you and I'm trying to, in my mind ~~ THE COURT: I sit here and I think about -- THE DEFENDANT: -- try to address that. THE COURT: You know, I think about this -- you know, I think about the idea that Mr. Dzubay is incompetent. And I'm waiting to hear something that maybe would be relevant to an issue like that. THE DEFENDANT: Okay. I hear you now, sir. THE COURT: Because it startles me to hear someone say that about Mr. Dzubay. THE DEFENDANT: Okay. I hear you now. Now I hear you and understand where you're coming from. THE COURT: Okay. Go. THE DEFENDANT: JI apologize for -~ THE COURT: That's all right. THE DEFENDANT: -- not understanding. So, where Mr. Dzubay is concerned would come under my habeas corpus and his inability as -- from what I've been told, his inability to file an appeal on my behalf because of a conflict of interest. That conflict of interest would lie under his inability to -- I may be misunderstanding, but his inability to defend me while he's represented by a law firm by where STEFANI CORTOPASSI, OFFICIAL REPORTER 611aa 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 another lawyer is accused of incompetent representation. So, he is not able to file an appeal on my behalf because one of his co-counsel members, under the offices of James Egar and the Monterey County Public Defender's Office, he would be trying to represent me against negligence. And therefore, that's where, under my request for this Marsden motion, Mr. Dzubay comes into play. And I do appreciate, your Honor, you taking the time to hear me now because I've kept quiet for nearly one hundred court dates, and I really appreciate you hearing me today. I really do. And I'm almost done here with what I'm about to say. And I'd like to call Mr. Dzubay, actually, on the stand if I could, please. THE COURT: No. Just make your representations about what you think is the problem. THE DEFENDANT: Do I legally not have the right to call my lawyer to the stand? THE COURT: No, not right now. No. THE DEFENDANT: Because I think it's a vital part, with the documents I'd like to submit as evidence. THE COURT: Well, listen to me, Mr. Cubbage. Right now, as far as I'm concerned, I'm in control of the courtroom. THE DEFENDANT: Yes, sir. THE COURT: You're not. THE DEFENDANT: Yes, sir. THE COUR! And we're going to conduct this right now, the way that I am directing it to be conducted. STEFANI CORTOPASSI, OFFICIAL REPORTER 61211 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 THE DEFENDANT: Yes, sir THE COURT: You need to tell me what your points are. I'll tell you whether or not Mr. Dzubay should be called as a witness. THE DEFENDANT: Okay. THE COURT: So, tell me what your points are THE DEFENDANT: Okay, my points. I discussed with Mr. Dzubay -- during the course of this leading up to me taking the deal that I took, I talked to Mr. Dzubay about -— and I complained to him about the -- the -- the incompetence with the counsel that I currently had THE COURT: I guess I'm just really confused. I don't know. I feel like I'm disconnected here just a little bit, Mr. Cubbage, because we aren't talking about the plea, we aren't talking about an appeal, we aren't talking about something that's not connected to our current proceeding our current proceeding is a restitution matter. How is Mr. Dzubay incompetent to handle that? This is not the court, this is not the place, this is not the time to be talking about what should have been done, what could have been done by someone else, at another time. We are moving forward I need to know, from you, what your point is about Mr. Dzubay and his inability to competently represent you moving forward not backwards. THE DEFENDANT: Yes, sir. And moving forward, I wish to have my no contest plea of non-caregiver theft of an elder of $950, 368(d), appealed. That is my wish. That is my goal. STEFANI CORTOPASSI, OFFICIAL REPORTER 61310 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘THE COURT: That is what you'd like to have done? THE DEFENDANT: Yes, sir. That's my ultimate goal. I would like to do that, your Honor, and I'd like to take my case to trial. THE COURT: That's not my business right now. THE DEFENDANT: Yes, sir THE COURT: That's not my business HE DEFENDANT: Okay. THE COURT: My business is to get the restitution hearing done. THE DEFENDANT: I understand, but -- and I'm doing my best, your Honor. And I'm not trying to frustrate you. The Public Defender's Office did not follow my request within a time period to file this appeal, which has put me in this position. Ms. Navarro had retired Mr. Don Landis, who I called from the Monterey County Jail -- I called the Public Defender's Office more than one hundred times, documented. I finally got Don Landis on the phone. And I don't even need to look at my notes because I know what happened. when I tried to speak with Mr. Landis over the telephone, to tell him I needed a new lawyer sent to Monterey County Jail to immediately file an appeal, he told me that he refused to discuss the matter over the telephone and that when I was released from the Monterey County Jail to come to the Monterey County Public Defender’s Office and see him or Mr. Egar, I don't remember which one he stated, of which time I did STEFANI CORTOPASSI, OFFICIAL REPORTER 61410 a 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 I got out. And I have this document I'd like to submit as evidence dated 8 -- I got out the 8-6 of 2012, I believe was the date. The 6th of August I had many phone calls with Mr. Egar. No calls were returned. I showed up at the office and I filled out the form to request a meeting with him. It's regarding appeal of charge. THE COURT: What's the date? THE DEFENDANT: 8-20 of '12. I was not returning -- he may have been busy, may have been out of town, I don't know, but I was not getting return telephone calls. So, I took the time to drive from Monterey to Salinas and I came in unannounced and I asked to see somebody. I asked to see Mr. Egar. on my way out the door, I left a note. "Please get back to me as soon as possible. Thank you. Joe Cubbage," with my telephone number. As I'm leaving, Mr. Egar walked in the door. Mr. Egar took the time to see me at that moment, at that time. And Mr. Egar, at that point in time, when I told him that I would like to file an appeal, in his words he told me I needed to move on with my life. Your Honor, would you please allow me this moment? I realize that you asked that this court be sealed, everything that happens here. Would you please allow me to call my lawyer to the stand? THE COURT: Well, I haven't heard you tell me anything that would suggest for a second that Mr. Dzubay should be called to the stand. Tell me something STEFANI CORTOPASSI, OFFICIAL REPORTER 615)ws 10 1 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 THE DEFENDANT: On April the 12th of 2013 -- THE COURT: Now we're talking, Mr. Cubbage. THE DEFENDANT: On April 12th of 2013, I was here -- THE COURT: Mr. Cubbage, I'm going to cut you off. You are interrupting yourself with a motion, and I don't have all day. THE DEFENDANT: I understand. THE COURT: You need to gather your thoughts. THE DEFENDANT: Yes, sir. THE COURT: And you need to tell me what it is about Mr. Dzubay that makes him incompetent. THE DEFENDANT: Yes, sir. THE COURT: Makes him unable to competently handle your case. THE DEFENDANT: Yes, sir. THE COURT: Just tell me. It's not a big deal. THE DEFENDANT: On April the 12th of 2012 (sic), Iwas here. And at that point in time a document was put in front of me titled "Notice of Disqualification of Judge Russell D. Scott, Pursuant to Code of Civil Procedures Section 170.1(a) (6) (a) (3)," I believe, "and 170.3(b)." Mr. Dzubay -- THE COURT: That was .6? Is that what you said? THE DEFENDANT: 170.3, your Honor. And at that point in time, Mr. Dzubay had informed me that -- to the best of my understanding, that you, yourself, your honorable judge of this court, had informed the Court that there was a STEFANI CORTOPASSI, OFFICIAL REPORTER 61610 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conflict of interest by where your son, Christian Scott, I think is his name, was the law partner in one of the lawyers who represented the victim in my case, where I was in this court nearly one hundred times. THE COURT: Right. THE DEFENDANT: At that point in time -- your Honor, I suffer from something called Posttraumatic Stress Disorder. My best friend was murdered, he died in my arms, and I still suffer from it to this day. Mr. Dzubay knows this. In fact, I have documents here from the doctor, that I provided to Mr. Dzubay a few months prior to the April 12th of 2013 document that I was asked to sign -- or that was presented to me with an option to sign of disqualification of yourself, your Honor. The date of this document is February the 7th of 2013. And -- THE COURT: The date of which document? THE DEFENDANT: Again, your Honor? THE COURT: The date of which document? THE DEFENDANT: Of the document from my doctor. THE COURT: All right. THE DEFENDANT: Okay? THE COURT: That's fine. THE DEFENDANT: And at that meeting, prior -~ moments prior to coming into court, I signed this document. And I discussed several issues pertaining to yourself, all of the players that have been in my case, and whether or not to sign this document. And I need to call my lawyer to the STEFANI CORTOPASSI, OFFICIAL REPORTER 61711 12 13 14 15 16 17 18 19 21 22 stand. THE COURT: Just tell me what happened. What's the point? THE DEFENDANT: Okay. At that meeting, I was overwhelmed, your Honor. And I had been complaining all along of the association with the people who have made these charges against me, or claims against me, my sister, about things that happened that did not happen And I talked about the players involved, which were my sister's husband, a twenty-five year veteran of the Monterey County Sheriff's Department, and his contacts with the Monterey County District Attorney's Office. I talked about my sister's lawyer and Lori Espinosa (phonetic), who is, my understanding is, and her relationship with Monterey County District Attorney's Office and as a city attorney for the City of Salinas and I believe a part-time Prosecutor for the Monterey County District Attorney's Office. Mr. Tom Espinosa, Lori Espinosa's husband, who serves as a pro tem conservatorship court judge in the Monterey courts where I fought for the conservatorship of my father while these charges were over my head. And then, when it was brought to my attention that after being in front of this court nearly one hundred times, with a lawyer who is telling me that we're understaffed, we don't have the time, the resources, a woman who is calling my dad by Mr. Shapiro and telling me that I'm looking at thirteen to twenty years, at one point, in prison if I didn't examine an opportunity for them to negotiate a deal for me -- because, STEFANI CORTOPASSI, OFFICIAL REPORTER 61810 1 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 your Honor, the story that was presented to this Court was a lie, a blatant miscarriage of justice and a lie in my opinion, your Honor. THE COURT: So -- THE DEFENDANT: So, when you did -- when my opinion, the right thing, which is to provide me this opportunity to see this -- THE COURT: You're referring to the 170.3 notice? THE DEFENDANT: Yes, your Honor. THE COURT: Uh-huh. THE DEFENDANT: I was beside myself. THE COURT: In a good way or a bad way? THE DEFENDANT: In a bad way. I said to my lawyer, Jeremy, I am overwhelmed. I am stressed. I'm -- I couldn't even breathe; okay? I'm very calm and collected now, as I speak to you, compared to the moment that we reviewed this document. I told him I did not know what to do. I was confused, overwhelmed, and I told him that I was suffering from Posttraumatic Stress Disorder. And I'm trying to be respectful in the way I'm talking about Mr. Dzubay because I respect Mr. Dzubay. THE COURT: As you should. THE DEFENDANT: And I truly regret the day he was taken off of my case, because I would have taken it to trial. Nine months I waited to get an investigator. THE COURT: You -- you were doing so well, I thought we were going to actually achieve -- THE DEFENDANT: I lose my train of thought, your STEFANI CORTOPASSI, OFFICIAL REPORTER 61910 11 12 13 14 15 16 1 18 19 20 21 22 23 24 25 26 27 28 Honor. THE COURT: Yeah. Well, I'm trying to redirect you now. THE DEFENDANT: I appreciate that. THE COURT: So, going back to the 170.3. You were overwhelmed in a bad way. THE DEFENDANT: And I signed this document. THE COURT: Right. THE DEFENDANT: I was overwhelmed, not in a good way, your Honor. THE COURT: I understand. So -- THE DEFENDANT: And after I signed the document, I stated to Mr. Dzubay that I don't think that that was the right decision to make. THE COURT: To sign it? THE DEFENDANT: Yes sir. And -- and as best as I understand this law, this gentleman cannot represent me in terms of filing an appeal of my -- to have my case overturned, and the misrepresentation by previous lawyers, prior to Mr. Dzubay, when he was taken off my case, your Honor. And he cannot file a habeas corpus, I believe is the one that refers to divulging the facts and the truth about what happened. THE COURT: We are not -- we're not talking about habeas corpus. Habeas corpus starts off with you've got to be in custody. HE DEFENDANT: Okay. THE COURT: You aren't in custody. THE DEFENDANT: All right. I did not know that. STEFANI CORTOPASSI, OFFICIAL REPORTER 620won 10 ql 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 THE COURT: Well -- THE DEFENDANT: Now, in terms of my appeal, your Honor. Mr, Dzubay cannot file an appeal on my behalf, as I've been told. And there is a lot of very important information that I believe this gentleman has, and would be able to concur with this Court, information that you might actually find interesting if I could call him to the stand, your Honor. And I would make it brief. THE COURT: Well, you know, I don't know how many times I'm going to tell you this, but I think this is probably the last time. You can tell me what you expect he's going to say. You can tell me what you believe are the facts. I'm not -- Mr. Dzubay is not going to take the stand. THE DEFENDANT: Okay. Would it be an option, your Honor, to things that I'm telling you, that you've asked me to divulge, would it be possible for you to ask him if those things are accurate? THE COURT: Just tell me what they are THE DEFENDANT: Okay. But my -- my problem, your Honor, is I'm trying to respect -- THE COURT: Okay. I'm going to give you one more opportunity. You either tell me what they are or this hearing is done. You have to -- you have to play by the rules here THE DEFENDANT: I'm confused, your Honor. I truly am. THE COURT: I'm explaining to you what you have to do. You have to tell me what the problem is. THE DEFENDANT: The problem -- STEFANI CORTOPASSI, OFFICIAL REPORTER 62110 11 12 13 14 16 47 18 19 20 22 23 24 25 26 27 28 THE COURT: We've been at this for a half an hour now. I have I don't know how many people standing out in the hallway back there waiting to have their cases heard, and you have yet to tell me one thing, one thing, that has in -- in any way reflects on Mr. Dzubay's competency, other than to endorse it. THE DEFENDANT: Okay, your Honor, ‘That one thing would be this. That one thing would be that prior to signing this document, which is 170.3, which you divulged the conflict of interest by way of your son's law firm, I told Mr. Dzubay moments before I signed this document that I was confused, I was stressed, I was overwhelmed, and I told him that I was suffering from my symptoms, that I have with Posttraumatic Stress Disorder, and Mr. Dzubay allowed me to sign the document. And I discussed with him later, after I signed t document, that I think that it was a mistake. THE COURT: Do you want another judge? Is that what you're saying? It's not the attorney, it's the judge? This is a twist on the Marsden motion, but -- THE DEFENDANT: Okay. Your Honor, I'm trying to absorb what you just said. THE COURT: Because that's what it sounds like It sounds like you're having second thoughts about having signed the waiver. And if that's the case, we can address that. That's different. THE DEFENDANT: Okay. So, if you're asking what I would like, your Honor, I would like -- my goal -- I have three goals. One would be, yes, your Honor, I would like STEFANI CORTOPASSI, OFFICIAL REPORTER 62211 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 another judge with respect to you. THE COURT: Okay. THE DEFENDANT: Number two, I would like to an appeal of my -- THE COURT: Well, that I can't help you with THE DEFENDANT: Okay. And three is I would like to have a lawyer appointed to me that is different than the Monterey County Public Defender's Office, your Honor. I would like a different lawyer. I do not -- I have no trust in the Monterey County Public Defender's Office, under James Egar And I -- I believe, your Honor, that -~ I believe that there's a serious conflict of interest by where you have divulged this conflict of interest under 170.3(b). And yes, I would like a new lawyer and I would like a new judge, your Honor. And I'm willing to provide the facts, whether it be this court, if you would like for me to provide the documents and the facts to substantiate my position, or another court But I would like another judge, your Honor, and that's with respect THE COURT: All right. So, we'll cross that bridge in just a moment. Mr. Dzubay, do you have any thoughts? MR. DZUBAY: Your Honor, I -~ I think that what Mr. Cubbage may have been trying to say is that when I received Mr. Cubbage's case for the restitution hearing he expressed to me that in retrospect he felt that -~ he claimed that certain things were said to him by Mr. Egar and by STEFANI CORTOPASSI, OFFICIAL REPORTER 62310 1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ms. Navarro, which, if true, may have amounted to ineffective assistance of counsel. I talked to Mr. Egar about this. Mr. Egar had a different version of the facts and stated that, as far as he was concerned, that any such collateral attack based on that would not have merit and I should not file it. So, I think that's what Mr. Cubbage is probably trying to say is that, you know, essentially he's trying to make a claim -- and this is completely excretion from the restitution issue, which is where we are procedurally. But I think that's where he's claiming that there is a conflict of interest, in that it's our office's position that the factual claims made by Mr. Cubbage are -- are untrue, and our office is not willing to collaterally attack the plea based on his version of the facts. THE COURT: What about the 170.3? MR. DZUBAY: Your Honor, my recollection of that is the Court informed me, as well as the District Attorney's Office, the night before. I remember calling Mr. Cubbage. I don't think he returned my call that night. I remember, in the morning, talking with Mr. Rabow, speaking with you briefly. I remember going to the conference room with Mr. Cubbage. I remember he was nervous. He had a variety of different questions. I told him I had consulted people in my own office the day prior about which judge we would be likely to get would we not waive, if any of those attorneys had had experiences with restitution hearings with the various judges STEFANI CORTOPASSI, OFFICIAL REPORTER 62410 1. 12 13 14 15 16 17 18 19 20 2. 22 23 24 25 26 27 28 We spoke about which judge we may get if we did not waive the disqualification. We discussed that it may actually be an advantage to be in front of your Honor because probably never would a judge be more detail oriented than when he knows that there's extra eyes, perhaps, on what's going on. So, I remember we had that discussion. He was nervous. And I remember Mr. Cubbage said, 1 want -- I want this judge. I want the judge that heard everything else to hear this restitution. And I -- I mean, he was nervous, but most of my clients are nervous. If -- I did not think he was in a state in which he was unable to appreciate what was actually being asked of him and to intelligently respond. It's possible I made a mistake, but t-- THE COURT: Was there some discussion about this document he has here? MR. DZUBAY: Oh, the -- actually, yes. It would have been prior to -- prior to that day, in a meeting in my office, he had disclosed that he had gone to a physician and that he had received the documents he has, which is a -- I believe is actually a -- a document stating that Mr. Cubbage is unable to work. And the -- it gives two diagnoses as to why this physician feels he's unable to work. One was Posttraumatic Stress Disorder and I believe the other one was paranoid ideation. And he did present that to me. That is in my file And I did know of those two diagnoses prior to the hearing in which we both waived the disqualification under 170.3. STEFANI CORTOPASSI, OFFICIAL REPORTER 62510 11 12 13 14 15 16 a7 18 19 20 a1 22 23 24 25 26 27 28 THE COURT: Do you have some notation or memory of how -- what the sequence of time was from discussing or finding out about the document and then the 170.3? MR. DZUBAY: I'm going to estimate it was at least a month. It was at least a month THE COURT: Was that topic brought up when the discussion was had about the 170.3? MR. DZUBAY: I don't remember specifically Mr. Cubbage talking about Posttraumatic Stress. I remember he was extremely nervous, He was clenching his fists. He was sort of rolling his eyes upward. He was visibly nervous However, based on my time with Mr. Cubbage, I know that that's not unusual. THE COURT: He was doing similar things here MR. DZUBAY: And he's probably very nervous right now THE DEFENDANT: Can I say one thing, your Honor? THE COURT: Sure. THE DEFENDAN' I have a document that is dated 12-6 of '12; that is e-mailed, and it's got the address here, to Jim Egar and Dennis Taylor of the Monterey Herald, which outlines my case and my issues with the Monterey County Public Defender's Office. The media is following my case right now extensively. They actually appointed me a member of the media to put me in contact with a private lawyer at no expense, and they're following my case now. There's actually a couple of media sources that are -- that believe that -- it's my opinion that STEFANI CORTOPASSI, OFFICIAL REPORTER 62611 12 13 14 15 16 18 19 20 21 22 23 24 26 27 28 they believe that there's a story that needs to be told so that this court can see the true justice from my position, your Honor, and the position of the person who's claimed to be a victim, and tell the true story of what really happened here. THE COURT: Yeah. ‘That's really not a part of this. THE DEFENDANT: Okay. Your Honor. THE COURT: So, let me ask you one more thing, Mr. Dzubay. MR, DZUBAY: Yes, your Honor. THE COURT: In our discussions, you did the chronology the evening before and then the morning of. And during the morning of, I think, was the conversation in chambers between you, me, and Mr. Rabow. And there was some focus there, if I recall correctly, about -- who was it that my son was representing? Or the Lavorato Law Firm was? MR. DZUBAY: I believe at that time it was the Lavorato & Chilton firm, which is why I didn't catch it early on, And I believe that would have been the victim -- one of the victims in the case, Pat C. Cubbage, which would be Joseph's mother. THE COURT: All right. And there was some discussion about she actually wasn't a -- a claimant or something along those lines. There was some discussion about she wasn't really an issue in the case when we got back together the next morning. MR. DZUBAY: I believe the issue was, your Honor, STEFANI CORTOPASSI, OFFICIAL REPORTER 62710 11 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 that the Lavorato & -- at that time the Lavorato & Chilton firm had already been paid by Ms. Cubbage or her family THE COURT: I see. That's what it was MR. DZUBAY: So, I believe the representation was that there was really -- there would really be no economic impact upon anyone related to the Court, regardless of the Court's decision. THE COURT: All right. And that -- that came after distributing, I think, the Notification of Disqualification, and we followed through with it anyway. All right. So, we may talk about that a little bit more in the public arena, rather than here As far as the -- let me ask you this, Mr. Cubbage THE DEFENDANT: Yes, sir. THE COURT: Forget Mr. Egar, if you can, for a minute. We're just talking about Mr. Dzubay, right now, handling the restitution hearing. That's all we're talking about right now. Let's just assume that We aren't talking about appeals, we aren't talking about a habeas corpus, we aren't talking about what Lisa Navarro did, we're talking about Mr. Dzubay handling this hearing that -- it is complex. There's complexity to it, that he is prepared for. The question I have of you is do you have confidence in him, in your ability to work with him, and his ability to work through this hearing? Does the -- does the question make sense? THE DEFENDANT: The question -- the question STEFANI CORTOPASSI, OFFICIAL REPORTER 62810 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 26 27 28 makes sense, your Honor. THE COURT: So -- THE DEFENDANT: It does. But -~ THE COURT: Can you answer that though? THE DEFENDANT: Well, my mind is jumping ahead to -- THE COURT: I don't want to jump ahead. I don't want it to jump ahead. I want to focus you here. I need to know if you -- you have twice complemented the talent of Mr. Dzubay, which is what I would have expected you to do, because I would do the same thing And I know you have this angst about Mr. Egar, for example, ox Mr. Landis, or Ms. Navarro, these other people but I have yet to hear you express that about Mr. Dzubay. And so, my -- my sense is that you -- you retain your confidence n Mr. Dzubay, you recognize that he has talent, and that you will do your best, if you have to, to work with Mr. Dzubay to help him represent you as zealously as he can in this restitution hearing. THE DEFENDANT: That's incorrect, your Honor THE COURT: Okay. Then tell me how it's incorrect. THE DEFENDANT: 1 feel that, once upon a time when I was in front of your court on the criminal matter, that a lot of what you had to say is true and accurate. I believe that to be true. THE COURT: Okay. That's me, I'm talking about Mr. Dzubay now. STEFANI CORTOPASSI, OFFICIAL REPORTER 629THE DEFENDANT: I'm talking about back then, when Mr. Dzubay was my lawyer, the things that you had to say about your opinion of my opinion of him is true. However, I feel that Mr. Dzubay should have -- my problem is I don't like to offend anybody, your Honor. THE COURT: My problem is I'm about to ~~ THE DEFENDANT: And my problem is that I feel he should have better counseled me -~ THE COURT: I didn't mean to interrupt you. THE DEFENDANT: -- on the document. THE COURT: I didn't mean to interrupt you. Maybe I did. But I can do that and you can't. THE DEFENDANT: Yes, sir. THE COURT: So, if I start talking, you just have to kind of go with it, you know. THE DEFENDANT: Yes, sir. THE COURT: We are going to be done in -- it's now forty-five minutes into this session, and there have to be at least a dozen, a dozen-and-a-half cases with attorneys, pairs of attorneys, waiting for this. This is not a scheduled hearing. This is an impromptu hearing. And you have done everything you can, I don't know, to sort of just, for the most part, ignore what the purpose of this is, despite my effort to focus you on it. You need to simply answer the question. So, you have begun to do that. I don't know what your reason is, why you are saying now that you would have a difficult time with Mr. Dzubay. I don't know why. Just tell me. STEFANI CORTOPASSI, OFFICIAL REPORTER 63010 qa 12 13 14 15 16 a7 18 19 20 ai 22 23 24 25 26 27 28 THE DEFENDANT: I feel that when I met with Mr. Dzubay to talk about the 170.3(b), which would take you off my case as a conflict of interest, I feel that I should have been better counseled, or at minimum given an opportunity to think about it. I told him I was overwhelmed. I told him I was stressed. I told him I was confused. And I don't believe that he -- the gentleman would deny that, your Honor I was -- I was overwhelmed. And I, after the fact, advised him that I thought that we should withdraw this. And therefore, your Honor, based on those grounds, which are current times, I feel that I need to be appointed a new lawyer; and I feel like I need to be appointed a new judge, with respect to you and your court, sir THE COURT: All right. Well, the first thing I'm going to do is I'm going to determine that you and Mr. -- Mr. Dzubay is quite capable, in this Court's estimation has always demonstrated competence. There has been nothing that you have said to -~ that changes the Court's impression of Mr. Dzubay's ability. He is as prepared of an attorney as any I've run into. So, I don't doubt his ability to do the best job that can be done on your hearing I also believe that -- and there's no doubt in my mind about this either, that Mr. Dzubay can work with you to accomplish that; that the only way that that wouldn't work is if you choose not to cooperate in your own defense. So, I'm going to deny the Marsden motion. We're going to take the 170.3 up in the public forum. That's the end of the sealed portion of this. STEFANI CORTOPASSI, OFFICIAL REPORTER 631won 10 1 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 (thereupon the Marsden Motion concluded.) STEFANI CORTOPASSI, OFFICIAL REPORTER 63210 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss. COUNTY OF MONTEREY ) I, STEFANI CORTOPASSI, Official Reporter of the County of Monterey, State of California, do hereby certify that the foregoing pages, 606 - 633, comprise a full, true, and correct transcription of my stenographic notes in the aforementioned case of the Marsden motion held on May 8, 2013. Dated September 12, 2014. ENT CORTOPASS STEFANI CORTOPASSI, OFFICIAL REPORTER 33