P. v. Adams

Filed 6/18/08 P. v. Adams CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Anne H. Egerton, Judge. Affirmed with modifications.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * *

Appellant Carl Leon Adams was convicted of second degree burglary and sentenced to one year four months in prison. The trial court stayed a one-year prior prison term allegation at the sentencing hearing. It struck that allegation altogether while the appeal was pending. Appellant contends: (1) There were errors in some of the rulings on his motions to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). (2) There was insufficient evidence that he committed a burglary. (3) The handling of the prior conviction was erroneous. We order a modification of the abstract of judgment to correct clerical error and otherwise affirm.

FACTS

The information originally alleged first degree burglary. The charge was reduced to second degree burglary during the trial due to a flaw in the name of the inhabitant of the burglarized house.

1. Prosecution Evidence

On December 7, 2006, Gene Segal lived in the guesthouse behind the main house on a lot in Los Angeles. An elderly woman lived in the main house. Around 3:00 a.m., Segal heard a rumbling or rattling noise outside. The noise continued occasionally over a period of five to 10 minutes. He went outside with a flashlight. A motion sensor light was going on and off. Appellant was standing in the yard between the main house and the guesthouse. He was about two feet from the window of the main house with his body turned toward that window. The window led to the houses laundry room.

Segal pointed a flashlight in appellants direction, approached him, and told him to leave. He repeated that order several times, sternly. Appellant walked away. Segal ran into his home, grabbed a cordless telephone, ran back outside, stood in the driveway, and dialed 911. He watched appellant cross the street, proceed south on Fairfax and then east on Eighth Street. Appellant disappeared from view down the walkway of an apartment building. He then reappeared and walked back toward Segals property. Segal hid. When appellant was at the propertys gate, Segal jumped out, blocked the gate, shone his flashlight in appellants face, and loudly and repeatedly yelled at appellant to get off his property. He repeated that statement 20 to 40 times. The police arrived at that point. They spoke to Segal and arrested appellant, who had started to walk away.

On cross-examination, Segal testified that appellant had nothing in his hands and had a demeanor that was unusual. Segal suspected that appellant might be mentally ill, as some of the things appellant said did not make sense. Segal never saw appellant touch the window.

When he talked to a police officer at the time of his arrest, appellant provided two different false names. His real name was ascertained at the station. The officer thought that appellant was under the influence of something, such as alcohol, a controlled substance, or prescription medication. He did not test appellant for any substances.

Segal checked the window the following morning. The screen and part of the window were dislodged. The window led to the main houses laundry room area.

2. Defense Evidence

Appellant testified that he wound up on Mr. Segals property when he was coming out of a blackout due to medications, prescribed medications. He had suffered from psychological disorders for 20 years. Around 5:45 p.m. on December 6, he saw a doctor in Sherman Oaks due to anxiety and arthritis pain. The doctor gave him Klonopin and extra strength Vicodin. He took too much medication. The doctor called an ambulance, which was supposed to take him to a hospital. The ambulance still had not arrived by 8:00 p.m., and he was feeling dizzy. He decided to find his own way to the hospital. He blacked out. He came to on Mr. Segals property, with no idea what planet [he] was on. He did not intend to do anything wrong. He started to regain comprehension when Segal flashed the light at him, but blacked out after that, or he would not have returned to Segals property.

On cross-examination, appellant testified he did not remember how he got onto Mr. Segals property at that hour of the night. He recalled walking away from the doctors office in Sherman Oaks to catch a bus, but did not recall how he got to Segals property. He was going to be admitted to the hospital because he suffered from bipolar disorder, anxiety, depression, hepatitis, bronchitis, and arthritis. He was living at that time at a homeless shelter. He was not familiar with the area of Fairfax and Wilshire where the incident occurred. He had committed theft crimes and had a conviction for petty theft with a prior petty theft in 2003, but he was not a burglar. He did not recall telling Segal that he was at the location to receive a bag from a friend. He did not recall being questioned by the police.

DISCUSSION

1. The Marsden Issue

Appellant contends that Judge Anne H. Egerton committed reversible error in denying two of his Marsden motions as untimely.

A. The Record

Although appellants complaint concerns Judge Egerton, we must begin with the earlier Marsden proceedings that were held before Judge Carol H. Rehm.

On February 9, 2007,appellant appeared with counsel, Deputy Public Defender John Lawson, for pretrial proceedings before Judge Rehm.^[1] Judge Rehm denied a Penal Code section 995 motion and continued the case to February 16, as Lawson was waiting for medical records that showed appellants condition on the date of his arrest.^[2] Appellant complained that a trial should not be necessary, as he was under the influence of medication at the time of the crime. Judge Rehm replied that the medical records were needed to support that defense, and appellant should talk to Lawson if he had questions.

On February 16, the case was continued to February 23 because Lawson was engaged in trial.

On February 23, appellant appeared in Judge Rehms courtroom with a different deputy public defender, Ms. Avalon Economou, whom we will hereafter refer to as counsel.

Counsel explained that the case had been transferred to her because Lawson was currently in trial. A continuance was necessary because the medical records for the date of arrest still had not arrived. Counsel then said that appellant wanted to address the court with respect to his representation.

Appellant told Judge Rehm that there were incorrect statements in the police report. He wanted to know why his section 995 motion had been denied and why he was charged with first degree burglary, when he had been merely trespassing. The judge patiently explained that there was enough evidence at the preliminary hearing to meet the lesser standard of probable cause, but the issue at trial would be whether guilt was proven beyond a reasonable doubt. Appellant said he understood, but he still did not understand how a trespass became a first degree burglary. The prosecutor and defense counsel told the court about their plea discussions.

Appellant then asked, Can I get a state[-]appointed attorney? Judge Rehm told him that he already had one, and his other attorney was now engaged in trial. He inquired, Can I change this one that I have? The judge told him no. Appellant said, I dont think she is in my best interest. The judge responded that there would be a Marsden hearing later that day, after it completed the other cases on its calendar, so that no one else would hear about appellants case. Appellant said, I will do that with you, sir, because she wont hear me. Somebody got to hear me. []  . . .  []  I have to deal with this woman here. I have no choice. The judge told him, Unless there is some ground to remove her. Appellant complained, I just met her yesterday. The judge told him to wait to discuss the problem. The prosecutor announced that the People planned to amend the information to add prior convictions. Appellant continued speaking. The judge told him to let his attorney talk. Appellant replied, If I can talk to her, it would be different. I dont have to come in here. I feel nobody is going to hear me because she aint doing a good job.

The judge told appellant not to make statements in court that could be used against him. Appellant said he understood, but he did not know why there was a need to wait for the medical records. The judge and the prosecutor explained that the medical records might help the defense. Appellant asked for a copy of the records. The judge told him that copies were not usually given to defendants because they might fall into the hands of other jail inmates. Appellant wanted certain papers he gave counsel to be returned to him. The judge said they would wait to talk about that problem.

Later, in open court, Judge Rehm asked appellant if he still wanted to discuss substituting counsel. Appellant asked if that might prolong his case. The court said that was possible. Appellant asked why the case depended on medical labs. The judge said that was up to counsel. Appellant asked counsel what would happen on the next court date. She replied that she was not in a position to answer that question. Appellant said, I guess I would like another attorney. See, I tried to talk to her. The judge then cleared the courtroom for a Marsden hearing, at which only the judge, appellant, counsel, and court staff were present.

At the Marsden hearing, appellant complained that counsel refused to listen to him. He said she had told him to shut up [or] be quiet. He thought she was trying to dump on him. He did not feel her vibe. The judge told appellant not to talk loudly to counsel in the courtroom when other people could hear him. Counsel complained about not being given an opportunity to respond. The judge wanted to hear from appellant first. Appellant said counsel should have told him not to speak in the courtroom. He thought she had an attitude against him based on how she was carrying on right now, her body language. The court asked for specifics about things counsel had done that should not have been done. Appellant said counsel hung up on him on the telephone the previous day. The court asked him if he had anything else to say. He answered no.

Counsel then said she graduated from law school nine years earlier, had been a public defender for eight and a half years, and had handled numerous jury trials involving similar charges. She believed she had done everything that could be done in the three days she had the case. She had reviewed the discovery and the available medical records. On the previous day, she had visited appellant at jail and explained the case status, including the need for a continuance for the missing medical records. At that meeting, appellant had talked while she spoke, which gave her no opportunity to respond to his questions. Finally, he became aggravated, called her an offensive name, hung up the phone, and walked away.

Counsel added that, when she came to court on the day of the proceedings, she saw that the subpoenaed medical records were still not in the court file. She told appellant in the lockup that another continuance was necessary for those records. She also told him that he had a right to go to trial immediately if he did not want to waive time. He would not listen, talked while she spoke, and demanded another lawyer. He refused to say whether he was willing to waive time. He did, however, give her some paperwork about his parole case, which she photocopied and gave back to him. He also gave her an additional witness statement that she had not received in the discovery materials.

At that point, appellant told the judge he wanted to waive time. He said the medical records would show he was out of [his] mind at the time of the crime and stayed out there for a day and a half following his arrest due to medication that had been prescribed for arthritis and anxiety. When he tried to show counsel the flaws in the evidence, she would throw it back in a different way than [he] explained it to her. He admitted that he called counsel an offensive name. He said he had nothing else to say. Then, he insisted that the laboratory results would show he lacked intent, and he had simply been trying to show counsel differences between the police report and the witness statement.

Counsel denied ever using the words shut up. She said what she told appellant was that she could not answer his questions if he kept speaking while she spoke to him. She insisted that he hung up on her the previous day. Appellant interjected that he did not hang up the phone, and it was her word against mine.

Judge Rehm observed that attorneys in that courtroom sometimes told their clients to shut up, so the clients would not say something that might be used against them. The judge again told appellant that the rules inside a courtroom were different than life outside the courtroom. The Marsden motion was then denied, as counsel had been doing all the right things, including obtaining the documents necessary for the defense. Appellant thanked the judge and said, I understand now. Thats all. The judge told him to cooperate with counsel, who was a good and experienced attorney. He promised to be [a] little less agitated and a little bit more patient with counsel.

Proceedings then resumed in open court. Appellant agreed to waive time, and the case was continued to March 19.

At the proceedings before Judge Rehm on March 19, appellant was still represented by the same counsel. He pled not guilty to the amended information. Both sides announced ready for trial. Appellant asked if counsel would be his lawyer at the trial. The judge told him to talk to counsel.

On March 20, over defense objection, the case was continued to the following day.

On March 21, the case was transferred to Judge Egertons courtroom. Later that morning, Judge Egerton summarized the discussions at a pretrial conference in chambers. The record then shows:

THE DEFENDANT: May I say something real quick? I had a lawyer before this one, and my ‑‑

THE COURT: Im sorry. I cant hear you.

THE DEFENDANT: My psych and ‑‑

THE REPORTER: Your what?

THE COURT: You know what? Youre going to have to speak really slow and loud because she cant get ‑‑

THE DEFENDANT: My psych and medical records, I signed a release of information ‑‑ Okay? ‑‑ about two months ago. They were received ‑‑ right? ‑‑ and that was going to help out my case to prove that it was my state of mind that got me ‑‑

[COUNSEL]: Please stop talking about the case. [] Your Honor, can we --

THE DEFENDANT: Im talking now, Your Honor, because she never talks to me.

[COUNSEL]: Your Honor, Im not going to have this discussion about the facts of [the] case. We are about to start trial.

THE DEFENDANT: Im just ‑‑

[COUNSEL]: Mr. Adams wants to discuss this with the court. I would ask we do that ex parte. Im not going to have to sit here and discuss the facts of the case and possible defenses in front of the district attorney in open court.

THE DEFENDANT: Why wont you talk to me about ‑‑

THE COURT: Okay. Okay. Mr. Adams, I need you to sit for just a minute. [] Im going to ask the district attorney ‑‑ since the jurors are collecting in the hall, if you would step into the jury room for one minute.

The second Marsden hearing then occurred, as follows:

THE COURT: Okay. [The prosecutor] left the room. Its not a good idea, as your lawyer just said, to talk about your possible defenses with the district attorney sitting here, but now shes stepped out. [] Go ahead.

THE DEFENDANT: Thank you, Your Honor. [] I have always tried to talk to this woman, time and time again, to ‑‑ its my life on the line; right? She never wants to hear my point of view or whats going to possibly help me in my case. [] You know, its embarrassing when she comes to the bull pen and people see her talk to me like that, like I dont have no sense of whats going on, like Im some idiot. She tells me things like, you know ‑‑ things that I know [are] not true, you know. And ‑‑ and ‑‑ and Im reading. Im doing my homework, and Im knowing shes just denying me everything I asked for. [] Shes telling me dont talk; so I have to make myself look like a fool in court. Im not going to sit back when I asked the lawyer before her, who gave me to her ‑‑ he just bailed out for some reason. He had my medical and psych. I signed my social security number and signature. You know, I got a ‑‑

THE REPORTER: Your Honor ‑‑

THE COURT: You know, I ‑‑

THE DEFENDANT: (Unintelligible.)

THE COURT: Im not going to require [the reporter] to transcribe this. Were going to go off the record because Mr. Adams is speaking so quickly despite being admonished to speak slowly. [] Off the record.

(Discussion held off the record.)

THE COURT: Back on the record. [] To the extent that Mr. Adams is attempting to make a Marsden motion at this point, Im denying it. It is untimely. [Counsel] is going to proceed as defense counsel in this case. Mr. Adams can certainly speak with his lawyer outside the jurys presence about any issues. [] If there are outbursts in court ‑‑ you have a right to be present in your trial, but if you start talking in court and dont stop, Im going to have you step in the back and proceed with the trial without you. [] All right. Jurors should be here any second.

THE DEFENDANT: Those papers are not going to be involved in my case, Your Honor?

THE COURT: Youre going to have to talk to your lawyer about that. Im not the expert on your defense, Mr. Adams. I dont know ‑‑ I was sent this for trial, and the whole purpose is for the judge whos trying the case not to know about the facts because Im supposed to hear it for the first time just like the jurors.

THE DEFENDANT: She said she wasnt going to present that. Thats going to help me.

THE COURT: Mr. Adams, thats between you and your attorney.

THE DEFENDANT: Can I get another attorney if shes not going to help me?

THE COURT: No. As I just said, its untimely. It was sent here for trial. Were nine of ten.

That Marsden hearing ended and the trial began.

During the trial, just before the defense case began, the issue recurred. Appellant raised his hand just after Judge Egerton ruled that if he testified, he could be impeached with his prior conviction. The following discussion ensued:

THE DEFENDANT: I have a question because I cant talk to her. She runs away from me.

THE COURT: Yes, sir.

THE DEFENDANT: Im talking to you ‑‑

THE REPORTER: I cant ‑‑ Your Honor, he has to speak clearly.

THE COURT: If you cant get it, just put unintelligible. Ive asked him to speak slowly, and ‑‑

THE DEFENDANT: Oh, Okay. Here we go. Ill speak slowly and loudly. I cant talk to [counsel].

MS. RITCHEY [the prosecutor]: Im sorry, Your Honor. Should I leave?

THE COURT: Were not having another Marsden right now. If you have a specific question to ask me, ask me. But were not going to have a ‑‑

THE DEFENDANT: Okay.

THE COURT: -- whole discussion about the -- excuse me. Youre interrupting, and it makes it impossible for her. Were not going to have a whole discussion about the relationship between you and your attorney in the middle of trial.

THE DEFENDANT: Can I address the jury when I get up there in my fashion --

THE COURT: No.

THE DEFENDANT: ‑‑ and let them know? I got to ask only ‑‑ got to answer only the questions she asks me?

THE COURT: And the ones the D.A. asks you, yes.

THE DEFENDANT: Well, I have to say, first of all, I was never seen. No one ever said I broke into anything. I read the law ‑‑

[COUNSEL]: Again, were getting into ‑‑

THE DEFENDANT: I never did any burglary.

THE COURT: Mr. Adams, thats why youve pleaded not guilty. Thats why youre having a trial.

THE DEFENDANT: Well ‑‑

THE COURT: Your attorney will ask you questions, and you can answer the questions.

THE DEFENDANT: Shes not ‑‑

THE COURT: You do not get to make a speech to the jury.

Appellant then complained that counsel was not asking the questions that would exonerate him or asking about mistakes in the police report. He said he had been reading the law, and he had not committed a burglary or an attempt. Judge Egerton told him that courts follow rules, and there was a rule that witnesses must answer questions from attorneys. She also told him that counsel was asking the questions that she thought were important for the defense case. Appellant said he would appeal if necessary. He then took the witness stand.

B. Analysis

Appellant maintains that Judge Egerton erred in denying the Marsden motions he made immediately before and during the trial, as a Marsden motion may not be denied based on untimeliness. (People v. Roldan (2005) 35 Cal.4th 646, 681.) The argument lacks merit because any reliance on the purported untimeliness was harmless under any standard (ibid.), since the multiple inquiries that were conducted showed that counsel was providing adequate assistance and there was no basis for substituting counsel.

In People v. Clemons (2008) 160 Cal.App.4th 1243, 1250 (Clemons), we recently summarized the applicable principles. Under Marsden, supra, 2 Cal.3d 118, a criminal defendant who seeks to substitute counsel must be allowed to state the specific reasons for his dissatisfaction with counsel. Once that opportunity is given, it is within the trial courts discretion whether the circumstances justify a substitution of counsel. Substitution is required if the record clearly shows that defense counsel is not providing adequate representation or that there is such a conflict between the defendant and counsel that ineffective assistance of counsel is likely to result. The trial courts determination will not be disturbed on appeal absent a showing that denial of the motion substantially impaired the defendants right to the effective assistance of counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1085; People v. Welch (1999) 20 Cal.4th 701, 728.)

As in Clemons, we find no abuse of discretion in the Marsden rulings in this case.

During the extensive Marsden hearing before Judge Rehm on February 23, appellant and counsel were given a very complete opportunity to discuss the problems between them and what counsel had done to prepare for trial. Judge Rehm properly denied the Marsden motion after the inquiry showed that, although appellant did not trust or like counsel, there was no legal basis for a substitution of counsel. Appellants subsequent statements of dissatisfaction with counsel in front of Judge Egerton showed that he was essentially upset about counsels tactics, such as the questions she asked witnesses and her decision not to use the medical records from the date of his arrest. We infer from the record that once the records arrived, they proved not to be useful to the defense, since counsel had earlier recognized the potential importance of the records when she requested a continuance. Similarly, counsel was not required to ask every question appellant wanted. Tactical disagreements between the defendant and his attorney do not by themselves constitute an irreconcilable conflict. (People v.Roldan, supra, 35 Cal.4th 646, 682.) We therefore conclude that appellant is not entitled to a reversal of his conviction based on Marsden error.

2. Sufficiency of the Evidence

Appellant contends the evidence of burglary was insufficient, in violation of federal due process, because the evidence did not show that he was the person responsible for dislodging the screen and window pane. He points out that he had nothing in his hands, no one saw him do the dislodging, and there was no evidence of when the dislodging occurred.

Under the law of burglary, a person enters a building if some part of his body or some object under his control penetrates the area inside the buildings outer boundary. [] A buildings outer boundary includes the area inside a window screen. (CALCRIM No. 1700; see People v. Valencia (2002) 28 Cal.4th 1, 3.) The prosecutor relied on that theory in argument, telling the jury that appellant committed the act of entry by removing the screen and extending a hand or arm across the threshold of the property to grab that window panel to slightly, partially remove it from the sleeve.

Applying the appropriate standard of review and viewing the evidence in the light most favorable to the judgment (People v. Kraft (2000) 23 Cal.4th 978, 1053), we find substantial evidence to support appellants conviction for second degree burglary.

At the highly suspicious hour of 3:00 a.m., Segal saw appellant standing near, and turned toward, the back window of the main house. The jury could reasonably infer that the persistent rumbling, rattling noise that caused Segal to come outside resulted from appellants efforts to break into the main house by dislodging the screen and window pane. Also, appellant walked away when the police arrived and attempted to avoid identification by giving two false names to the officer. The combination of those facts was sufficient to justify the verdict.

3. The Prior Conviction

After the verdict, appellant admitted a prior prison term that could add a year to his sentence. At the sentencing hearing, the trial court stayed that allegation. After the opening brief was filed, apparently in response to a letter by appellate counsel, the trial court issued this nunc pro tunc order: It appearing to the court that through inadvertence and clerical error, the minute order dated 4-23-2007 does not reflect the proper order of the court, said minute order is corrected nunc pro tunc as of that date as follows: [] by deleting: [] stayed [] and substituting: stricken.

Appellant argued in the opening brief that the trial court erred in staying the prison prior or, alternatively, he received an inadequate advisement of rights when he admitted it. In the reply brief, appellant agrees with respondent that the issue is moot. We note, however, that although the minute order of the sentencing hearing was corrected, the abstract of judgment still indicates that the one-year prior was stayed. We therefore order a correction of the abstract of judgment to reflect the same change that was made to the minute order.

DISPOSITION

The sentence in the abstract of judgment that reads, Sentencing on admitted 1-year prior is ordered stayed pursuant to Penal Code Section 654 shall be corrected to read, The admitted 1-year prior is stricken. A copy of the corrected abstract of judgment shall be sent to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

BIGELOW, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further court proceedings in this section occurred in 2007.

^[2] Subsequent code references are to the Penal Code unless otherwise stated.