P. v. Hardy
Filed 7/1/13 P. v. Hardy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
TARIUS JAVAR HARDY,
Defendant
and Appellant.
E055057
(Super.Ct.No.
RIF1103524)
APPEAL from the Superior
Court of
County. J. Thompson
Hanks, Judge. (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Reversed with directions.
Sharon M. Jones, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and James D. Dutton and Alana Cohen Butler, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Tarius Javar Hardy broke a
window to get into his girlfriend’s apartment and, after entering her home,
refused to allow her to leave the apartment to get medical help for cuts she
sustained from the broken glass. He also
confiscated her cellular telephone so she could not call the police. Defendant was convicted of false
imprisonment, first degree burglary, dissuading a witness, and misdemeanor
vandalism.
Defendant makes the following claims
on appeal:
1.
There was insufficient evidence presented to support his conviction of
first degree burglary.
2.
Evidence Code section 1109, on its face, violated his federal
constitutional rights to due process of
law and equal protection.
3.
His sentences on false imprisonment and dissuading a victim should have
been stayed pursuant to Penal Code section 654.
4.
The trial court abused its discretion by sentencing him to the upper
term for his conviction of burglary, in addition to imposing consecutive sentences
on the false imprisonment and dissuading a victim convictions.
5.
The trial court erred by refusing to consider or inquire into
defendant’s motion for a new trial and substitution of counsel, and the error
requires remand to the trial court for further inquiry.
I
PROCEDURAL BACKGROUND
Defendant was found guilty by a jury
of false imprisonment (Pen. Code, § 236)
(count 2); dissuading a victim (§ 136.1, subd. (c)(1)) (count 3); and a
misdemeanor charge of vandalism (§ 594, subd. (b)(2)(A)) (count 4). In a bifurcated
proceeding, after waiving his right to a trial, defendant admitted he had
suffered two prior convictions for which he had served a prior prison term
(§ 667.5, subd. (b)), he had committed one prior serious offense
(§ 667, subd. (a)), and he had committed one prior serious or violent
offense (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
Defendant was sentenced to the upper
term of 12 years on count 2, which was deemed the principal term. On count 1, he received a sentence of one
year four months. On count 3, he
received a sentence of six years. All of
the sentences were ordered to run consecutive to each other and were pursuant
to section 667, subdivision (e)(1). In
addition, defendant was sentenced to two years for the prior prison terms plus
five years for the prior serious offense.
Defendant received a total state
prison sentence of 26 years 4 months.
II
FACTUAL BACKGROUND
A.
Incident Occurring on July 15,
2011
Andrea Haro and defendant began a
romantic relationship in 2007. They
broke up several times during their relationship. In December 2010, Haro moved into an
apartment located on 12th Street
in Riverside. For the first three weeks that she lived at
the location, defendant lived with her.
Defendant was not on the lease for the apartment and did not pay rent or
any of the utilities.
On July 15, 2011, Haro was living in the apartment. Defendant was staying at the apartment on and
off despite the fact they had officially broken up. They continued to have sexual relations. Defendant kept some of his clothes at her house,
but they were in trash bags. Defendant
did not have a key to the apartment; he gained access by Haro letting him into
the apartment.
On that day, Haro worked until 3:00 p.m.
On her way home, defendant called her on her cellular telephone; he
wanted to see her. They met near her
apartment, and he gave her $25 for the gas bill. They both went back to her apartment. Defendant told Haro to get dressed because he
wanted to take her to a local bar. Haro
told him that she did not want to go with him.
Haro did not want to go because defendant was different when he was
drinking. Defendant got angry and said
he was going to go by himself. He said
that he was going to find another woman to have sex with him. Haro told him to go ahead and do it but not
to come back.
Defendant and Haro started to
argue. He complained she did not care
about him. Defendant grabbed his bags
full of clothes. He eventually had Haro
against a wall and was yelling at her.
Haro tried to get her shoes on to leave, but defendant would not let
her. He kept pushing her back up against
the wall. He closed a window so no one
could hear them. He pulled her to the
floor.
Haro’s knee was skinned from the
carpet, and she was screaming for him to stop.
Defendant covered her mouth so that no one could hear her scream. Defendant kept yelling, “Shut up. Shut up.â€
Haro estimated defendant covered her mouth on and off for 15
minutes. Defendant and Haro argued over
her cheating on him. Defendant
eventually got up and got her a towel for her knee.
Defendant then sat down next to Haro
and started crying. He told her that he
was sorry. Haro told him she did not
want to hear it. He then started asking
her for her telephone. He said: “I know you’re going to call the cops on
me.†Defendant emptied out the contents
of her purse, looking for her telephone.
Haro had the telephone on her person but did not tell him. Haro told him that it might be in her
car. She put on her shoes, went to her car,
got in, and drove away. Haro wanted to
get away because she was afraid defendant was going to hurt her.
Haro did not call the police because
she thought defendant had left her apartment and would not come back. Defendant called her and assured her he had
left the apartment. He apologized. Haro told him that she never wanted to see
him again. Haro went back to her
apartment, and he was gone. Haro locked
every door and window.
At around 10:00 or 10:30 p.m.,
Haro heard banging on her window. At the
same time, she got a text from defendant saying he was out in front of her
house. Defendant banged on the window
for about five minutes and then stopped.
Haro took a sleeping pill so she could sleep.
Haro woke up at 2:00 a.m. and heard a noise at her window. She opened the blinds and saw defendant
standing outside trying to open the window.
Haro yelled, “Get out of here,†and tried to hold the window shut. In the process of defendant trying to open
the window, it shattered. Haro was cut
and started bleeding. As she was looking
at her arm, defendant reached in the window and was able to reach the door
handle and open it.
title="">[2] At trial, she still had a scar from the
cut.
Haro immediately went to the
bathroom to wash her cuts. Defendant
followed her and was yelling at her about her not wanting to see him. Haro told defendant that she needed to go to
the hospital. He responded that she
“wasn’t going to no fucking hospital.â€
She begged defendant to let her go to the hospital, but he kept telling
her no.
Haro had her telephone in her
hand. Haro tried to keep it away from
defendant, but he eventually grabbed it out of her hand. Defendant could not access her telephone
because it was locked with a code. Haro
went to her bedroom and was trying to put on her bra and shoes so she could go
to the hospital. Defendant ripped the
bra out of her hands. Haro was able to
get her shoes on, but defendant would not allow her to leave. Defendant gave Haro back her cellular
telephone but stayed with her the entire time.
She never tried to call the police once she had the telephone because
she claimed that defendant would not let that happen.
Defendant and Haro ended up in the
living room. Eventually, defendant
either fell asleep or passed out. Haro
ran to the restroom and called 911. She
whispered to the dispatcher that she was at her house. She told the dispatcher that she was in the
bathroom and that her boyfriend had broken into the house and was still in the
house. Haro told the dispatcher he did
not know that she was calling the police.
Riverside Police Officer Genaro
Escobedo responded to Haro’s 911 call at approximately 3:00 a.m. As Officer
Escobedo and other officers approached the apartment, Officer Escobedo saw a
screen from one of the windows on the ground.
As he got closer to the apartment, he observed the broken window by the
front door. Haro came to the door and
opened it.
Haro appeared frightened. She pointed to the area where defendant was
sleeping or passed out. Defendant
appeared to be waking up and grabbed for Haro’s leg. Defendant was arrested. He had a cut that appeared to be made by
broken glass on his hand. He was
uncooperative. He kept yelling at
Haro. He was placed in the back of the
patrol car and started kicking the windows.
He also tried to kick open the door in an attempt to get out of the
patrol car. He smelled of alcohol.
Haro did not have a home telephone;
she only had her cellular telephone.
Defendant had called her numerous times since this incident. She was afraid of him and had obtained a restraining
order. She no longer knew his limits or
what he would do to her.
B.
Prior Incidents of Domestic
Violence
In March 2009, defendant and Haro
had attended a birthday party. Defendant
had been drinking. He got into an
argument with Haro and her sister. He
called Haro a “fat bitch.†Haro told
defendant she was going to take him home in order to get him out of the
party. On the way home, Haro was talking
on her telephone. Defendant grabbed it
from her. He snapped it in half and
threw it out on the freeway.
Haro got off the freeway in order to
get defendant out of the car. When she
stopped, he grabbed her keys and threw them out the window. Defendant and Haro were yelling at each
other. He reached over and punched her
in the head. Haro got out of the car and
intended to walk away. Defendant chased
after her and kicked her in the stomach.
He grabbed her to pull her up and ripped her clothes. She dragged herself to the curb and
vomited. Defendant ran off.
In May or June 2011, defendant
stayed the night at Haro’s house and woke up in a bad mood. They started arguing with each other. Haro decided to leave. She and her daughter got in her car. Defendant got on the hood of the car and would
not let her leave. Defendant begged her
to talk to him. Defendant then jumped
off, kicked the door of her car, and then let her leave.
Defendant did not present any
evidence.
III
SUFFICIENT EVIDENCE OF BURGLARY
Defendant contends the evidence was
insufficient to prove that he committed burglary as there was insufficient
evidence that he entered the apartment with the intent to commit a felony,
e.g., to dissuade a witness and/or commit false imprisonment.
“Our task is clear. ‘On appeal we review the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.
[Citations.] The standard of
review is the same in cases in which the People rely mainly on circumstantial
evidence. [Citation.] “Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.â€â€™
[Citations.]†[Citation.]’ [Citations.]
The conviction shall stand ‘unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].â€â€™ [Citation.]†(People
v. Cravens (2012) 53 Cal.4th 500, 507-508.)
Burglary involves the act of
unlawful entry accompanied by the specific intent to commit grand or petit
larceny or any felony. (
1041.) The defendant must possess the
requisite intent element at the time of entry.
(People v. Sparks (2002) 28
Cal.4th 71, 85, fn. 17; People v. Riel
(2000) 22 Cal.4th 1153, 1204.) Evidence
of the intent required for burglary “is seldom established with direct evidence
but instead is usually inferred from all the facts and circumstances
surrounding the crime.
[Citations.]†(
643.) The intent element is proved
“‘[w]here the facts and circumstances of a particular case and the conduct of
the defendant reasonably indicate his purpose in entering the premises is to
commit larceny or any felony . . . .’†(People
v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
“Whether the entry was accompanied by the requisite intent is a question
of fact for the jury.†(
The jury was instructed on burglary,
in part, that “[e]very person who enters any building with the specific intent
to commit false imprisonment or dissuading a witness, a felony, is guilty of
the crime of burglary . . . .â€
The jury was instructed on the definitions of the crimes of false
imprisonment by violence or menace (§ 236) and dissuading a witness
(§ 136.1, subd. (c)(1)).
A felony offense of false
imprisonment requires that an individual be restrained of his or her liberty by
the use of violence or menace. (
116, 123.) “‘Menace is a threat of harm
express or implied by words or act.
[Citations.]’ [Citation.]†(Ibid.) “In order to prove the offense of witness
intimidation in violation of section 136.1, subdivision
(c), . . . the prosecution must establish that the defendant had
the specific intent to dissuade a witness from testifying.†(People
v. Young (2005) 34 Cal.4th 1149, 1211.)
Here, the evidence established that
Haro and defendant had been in a fight earlier in the day. During that argument, defendant pushed her
against the wall and would not allow her to leave the apartment. He closed a window and put his hand over her
mouth for 15 minutes to keep her for screaming for help. Defendant told her that he knew she was going
to call the police and wanted her telephone.
Haro was able to get away by claiming it was in her car. Haro told defendant that she never wanted to
see him again.
Later, defendant came to her
apartment and started banging on her window.
He texted her that he was outside her home. She refused to let him in the apartment. At 2:00 a.m., she heard defendant trying to
open a window. Haro yelled at him to
leave. He pushed against the window
until it broke. Haro immediately ran to
the bathroom. Defendant chased her to
the bathroom, took her telephone, and would not let her leave the apartment. He wanted to confront her about her earlier
text that she no longer wanted to see him.
Based on this evidence, the jury
could infer that defendant intended, when he entered the apartment, to hold
Haro against her will until she would talk to him about her earlier text that
she was going to leave him. Moreover, by
taking her telephone, he assured that she could not contact the police. His actions supported that he entered with
the intent to falsely imprison Haro and keep her from calling the police.
His intent was also evidenced by the
prior acts that he had committed against Haro.
Evidence of defendant’s prior acts of domestic violence against her were
admissible to show his intent. (See
1297-1298.) Defendant had once before
taken her telephone and thrown it out the window so she could not call the
police. He also had jumped on the hood
of her car so that she could not leave.
Defendant had a history of taking
her telephone so she could not call the police and also had used force in the
past so she could not leave. The jury
could reasonably infer that when defendant entered Haro’s apartment, he did so
with the intent to immediately take her telephone so she could not call the
police and that he intended to falsely imprison her until he was able to talk
to her.
Based on the foregoing evidence,
viewed in the light most favorable to the People, we conclude there was
sufficient evidence to support defendant’s conviction of burglary.
IV
EVIDENCE CODE SECTION 1109
Defendant contends that instructing
the jury as to Evidence Code section 1109 violated his federal rights to due
process of law and equal protection necessitating reversal of his conviction.
The jury was instructed as to
Evidence Code section 1109 that “[e]vidence has been introduced for the purpose
of showing the defendant was engaged in an offense involving domestic violence
on one or more occasions other than that charged in the case.†The terms “domestic violence,†“cohabitant,â€
and “abuse†were defined for the jury.
The jury was further advised: “If
you find the defendant committed a prior offense involving domestic violence,
you may, but are not required to, infer that the defendant had a disposition to
commit other offenses involving domestic violence. [¶] If
you find that the defendant had this disposition, you may, but are not required
to, infer that he was likely to commit and did commit the crimes of which he is
accused. [¶] However, if you find by a preponderance of
the evidence that the defendant committed a prior crime or crimes involving
domestic violence, that is not sufficient by itself to prove beyond a
reasonable doubt that he committed the charged offenses. [¶] If
you determine an inference properly can be drawn from this evidence, this
inference is simply one item for you to consider along with all other evidence
in determining whether the defendant has been proved guilty beyond a reasonable
doubt of the charged crime. [¶] You must not consider this evidence for any
other purpose. [¶] Within the meaning of the preceding
instruction, the prosecution has the burden of proving by a preponderance of
the evidence that a defendant committed crimes other than those for which he is
on trial. You must not consider this
evidence for any purpose unless you find by a preponderance of the evidence
that the defendant committed the other crimes.
[¶] If you find other crimes were
committed by a preponderance of the
evidence, you are nevertheless cautioned and reminded that before a
defendant can be found guilty of any crime charged, the evidence as a whole
must persuade you beyond a reasonable doubt that defendant is guilty of that
crime. [¶] Preponderance of the evidence means evidence
that has more convincing force that that opposed to it. If the evidence is so evenly balanced that
you’re unable to find that the evidence on either side of an issue
preponderates, your finding on that issue must be against that party who had
the burden of proving it. You should
consider all of the evidence bearing upon every issue regardless of who
produced it.â€
Defendant waived any objection to
the instruction on the ground the instruction violated his federal
raise a constitutional objection to Evidence Code section 1109 in the lower
court. (Evid.Code, § 353, subd.
(a); see also People v. Bolden (2002)
29 Cal.4th 515, 546-547.) Defendant
recognizes this failure but insists we should review the claim because it would
have been futile to object, and he raises a purely legal issue. We briefly review his claim.
Defendant acknowledges that the
California Supreme Court has rejected a due process challenge to a closely
analogous statute, Evidence Code section 1108.
(People v. Falsetta (1999) 21
Cal.4th 903, 912-922.) Defendant
disagrees with the reasoning in Falsetta. However, we must follow the case. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
He also acknowledges that our sister
courts have rejected challenges to Evidence Code section 1109 based on both
1085, 1095-1096; People v. Hoover
(2000) 77 Cal.App.4th 1020, 1028-1029 [Fourth Dist., Div. Two]) and equal
protection (People v. Price (2004)
120 Cal.App.4th 224, 240; People v.
Jennings (2000) 81 Cal.App.4th 1301, 1310).
We find these opinions well reasoned, and we are persuaded to follow
them.
We conclude that Evidence Code
section 1109 is not unconstitutional on its face.
V
SECTION 654
Defendant contends the trial court
erred by imposing consecutive sentences on counts 1 and 3, his convictions for
false imprisonment and dissuading a victim.
He claims the trial court should have stayed the sentences on these
counts pursuant to section 654 because he possessed the same intent in
committing the burglary in count 2. The
People concede that his sentence on count 1, false imprisonment, should have
been stayed. However, the People insist
that count 3, dissuading a witness, was properly ordered to run consecutive to
count 2.
Section 654, subdivision (a)
states: “An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.†Section 654 applies
not only to the same criminal act, but also to an indivisible course of conduct
committed pursuant to the same criminal intent or objective. (People
v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.)
“‘“Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent
and objective of the actor. If all
of the offenses were incident to one objective, the defendant may be punished
for any one of such offenses but not for more than one.â€â€™ [Citation.]â€
(People v. Green (1996) 50
Cal.App.4th 1076, 1084.) A defendant’s
intent and objective are factual determinations for the trial court, and those
determinations must be upheld if supported by substantial evidence. (Id.
at p. 1085.)
At the time of sentencing, the trial
court imposed on count 1 the midterm doubled, and ordered it to run consecutive
to count 2, but gave no reason for the consecutive sentence. As for count 3, the trial court imposed the
midterm doubled and ordered it to run consecutive to count 1 because “[i]t is a
separate incident, separate conduct involving a separate time and place.â€
Generally, if the defendant commits
both burglary and the underlying intended felony, section 654 will permit
punishment for one or the other but not for both. (See People
v. Price (1991) 1 Cal.4th 324, 492 [burglary and intended murder];
84, 98-99 [Fourth Dist., Div. Two] [burglary and kidnapping].)
Here, the jury was instructed that
the underlying felonies that defendant had the intent to commit when he made
entry into the residence was both false imprisonment or dissuading a
witness. The jury was instructed, in
pertinent part, that “[e]very person who enters any building with the specific
intent to commit false imprisonment or dissuading a witness, a felony, is
guilty of the crime of burglary . . . .†In closing argument, the People argued that
he possessed both intents when he entered the home. The jury found him guilty of both underlying
felonies. Based on the instructions and
argument of the People, at the time of entry, defendant possessed the intent to
either falsely imprison Haro or dissuade her from calling the police, or
both. Since defendant’s commission of
the three crimes had the same intent and objective, they could not be sentenced
consecutively.
The People argue that the trial
court could conclude that when defendant entered Haro’s residence, he only
possessed the intent and objective to falsely imprison her. However, the prosecutor below chose either
crime as the underlying felony to prove burglary and there was no unanimity
instruction for the burglary charge.
Hence, if some of the jurors concluded that defendant formed the intent
to commit the crime of dissuading a victim as the underlying felony for
burglary, we would be required to reverse his burglary conviction under the
theory advanced by the People on appeal.
The People rely upon
145 and People v. Wynn (2010) 184
Cal.App.4th 1210 to support their claim that defendant had separate intents and
objectives.
In People v. Wynn, supra, 184 Cal.App.4th 1210, the defendant entered
a store and took cigarettes. Once he
left the store, he was confronted by a loss prevention officer. The defendant threw down the cigarettes and
attacked the loss prevention officer with a nunchaku. (Id. at
p. 1216.) He was convicted of burglary
and several assault counts. The
could be sentenced on both the burglary and the convictions involving assault
with a deadly weapon because the burglary involved the desire to take
cigarettes and the assault on the loss prevention officer was in order to avoid
arrest. It concluded: “Because substantial evidence supports a
finding that [the defendant] had a different objective in committing the
burglary than in committing the assault, section 654 did not require the trial
court to stay the sentence on the burglary count.†(Ibid.)
In People v. Williams, supra, 157 Cal.App.3d 145, the defendant
entered the victim’s home through an open window. He took a television from a room in which an
11-year-old girl was sleeping. He
started to leave the room with the television when the girl awoke. He then raped the girl, and she was found
dead the next morning. (
had two criminal objectives, first being the theft of the television and second
being the rape. (Ibid.) It concluded that
multiple punishment was not barred by section 654. (Id. at
p. 158.)
The facts of Wynn and Williams clearly
differ from this case. Here, the People
proceeded on the theory that defendant entered Haro’s apartment either to
falsely imprison her or dissuade her from calling the police, or both. In the above cases, it is clear that when
committing the entry into the store and home, the defendants in those cases had
an intent to steal. The later decision
to fight off the loss prevention officer in Wynn
and to rape the 11-year-old girl in Williams
clearly were separate objectives.
The People also claim that defendant
followed Haro into the bathroom and then took her cellular telephone. When they moved to the bedroom, he gave the
telephone back to her. They insist that
defendant had abandoned his intent to dissuade her from calling the police but
he continued to falsely imprison her.
Part and parcel of the false imprisonment was that Haro could not
contact the police. She explained she
did not call the police because she knew he would not let her and because he
had broken her telephone in the past.
There simply is no evidence that defendant’s intent and objective in
committing burglary, false imprisonment, and dissuading a victim had separate
intents and objectives.
Based on the foregoing, the trial
court erred by imposing consecutive sentences on counts 1 and 3. We will order the trial court to stay the
sentences pursuant to section 654.
VI
UPPER TERM AND CONSECUTIVE SENTENCES
Defendant additionally argues in his
opening brief that the trial court
erred by imposing an upper term sentence on count 2 and consecutive sentences
on counts 1 and 3. In light of our
determination that the trial court erred by imposing sentences on counts 1 and
3, rather than staying them pursuant to section 654, his argument that the
court erred by choosing consecutive rather than concurrent sentences is no
longer applicable. Moreover, defendant
appears to concede in his opening brief that imposition of the upper term on
count 2 was supported by aggravating factors.
Out of an abundance of caution, we briefly review the validity of the
upper term on count 2.
In sentencing on count 2, as the
principal term, the trial court stated that it had considered the aggravating
and mitigating circumstances in the probation report. It stated:
“In aggravation, the crime involved great violence, great bodily harm,
the threat of great bodily harm, and exposed a high degree of cruelty,
viciousness, and callousness. The manner
in which this crime was carried out indicated planning, sophistication, and
professionalism. The defendant engaged
in violent conduct that indicates a serious danger to society. The defendant’s prior convictions as an
adult, sustained since a juvenile, are numerous and are increasing in
seriousness. He has served a prior
prison term, and his prior performance on probation and parole was
unsatisfactory.†The trial court found
no mitigating factors.
“‘Sentencing courts have wide
discretion in weighing aggravating and mitigating factors
. . . .’†(
1569, 1582.) “[A] trial court is free to
base an upper term sentence upon any aggravating circumstance that the court
deems significant, subject to specific prohibitions. [Citations.]
The [trial] court’s discretion to identify aggravating circumstances is
otherwise limited only by the requirement that they be ‘reasonably related to
the decision being made.’
[Citation.]†(
825, 848, fn. omitted.) “In making such
sentencing choices, the trial court need only ‘state [its] reasons’ [citation];
it is not required to identify aggravating and mitigating factors, apply a
preponderance of the evidence standard, or specify the ‘ultimate facts’ that
‘justify[ ] the term selected.’
[Citations.] Rather, the court
must ‘state in simple language the primary factor or factors that support the
exercise of discretion.’
[Citation.]†(
A single factor in
aggravation is sufficient to justify the upper term. (People
v. Cruz (1995) 38 Cal.App.4th 427, 433.)
We review the trial court’s sentencing decision for an abuse of
discretion. (People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977-978.)
Here, the aggravating factors were
properly considered by the trial court.
Briefly, defendant broke the window at Haro’s apartment, causing her to
bleed and believe that she needed to go to the hospital. She was left with a permanent scar. This showed that the crime involved great
violence and great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)) and that
he engaged in violent conduct which was a serious danger to society (Cal. Rules
of Court, rule 4.421(b)(1)).
Additionally, just based on the prior convictions admitted by defendant
in this case supported the upper term.
(Cal. Rules of Court, rule 4.421(b)(2), (b)(3).) There were ample aggravating factors and no
mitigating factors to support the upper term on count 2.
Even if the trial court erred in
relying on one or more of the above contested factors, any error was
harmless. “‘When a trial court has given
both proper and improper reasons for a sentence choice, a reviewing court will
set aside the sentence only if it is reasonably probable that the trial court
would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]â€
(People v. Cruz, supra, 38
Cal.App.4th at pp. 433-434.) We find no
error and further no reasonable probability defendant would have been given a
lesser sentence.
VII
MOTION FOR NEW TRIAL
Defendant contends this case must be
remanded for a careful inquiry concerning his claim of ineffective
representation by his trial counsel that he presented in a motion for new trial
that the trial court lodged but did not consider and whether or not he should
be appointed substitute counsel to investigate the claim for a motion for new
trial.
A.
Additional Factual Background
At the time of sentencing,
defendant’s counsel informed the trial court that defendant wanted to file a
motion for new trial. Defense counsel
stated, in referring to the motion prepared by defendant, “Yes. That I would also like you to have an
opportunity to review.†The trial court
stated that it would not read it but agreed to lodge it. The trial court then proceeded to
sentencing. Defendant’s counsel
stated: “Your Honor, I do want to be
heard in that regard as far as sentencing goes, but I know that [defendant]
would like Your Honor to consider his motion for a new trial and have an
opportunity to read that. And I’m sure
[defendant] has some issues that he would like to point out to Your Honor with
regard to that motion for a new trial.â€
The trial court responded: “Well,
[defendant] is not the attorney of record in this case, and it’s my philosophy
not to accept motions from people who are not attorney of record. So I will lodge it, but I’m not going to
consider it. Now, if he would like to
say something at the sentencing hearing, he can do that. Anything he wants to express about
sentencing, fine.â€
Defendant’s counsel conferred with
defendant and then advised the trial court that defendant was not requesting to
make a statement. Neither defendant nor
his trial counsel divulged to the judge in open court the grounds for the
motion for new trial or make an oral request for substitution of counsel.
In the motion filed with the trial
court, which defendant had prepared, he raised several claims.
rights and sixth amendment rights to a fair hearing were violated when the
motion was denied because a lesser offense than burglary was committed and
because the dissuading a witness charge was filed after the preliminary
hearing. He further raised a claim of
ineffective assistance of counsel based on his counsel not requesting a continuance
or that a warrant be issued for witnesses, not requesting a mistrial, and
failing to request a jury instruction.
He also claimed that the trial court improperly failed to instruct the
jury on the lesser offense of aggravated trespass.
In his “Prayer for Relief†defendant
requested that an order to show cause be issued, appointment of counsel, dismissal or modification of the charges,
and other relief that the trial court deemed fair and appropriate.
B.
Analysis
In People v. Smith (1993) 6 Cal.4th 684, the California Supreme Court
affirmed that a defendant is entitled to raise the claim of ineffective
assistance of counsel in a motion for new trial and thus is entitled to
substitution of counsel posttrial upon a “proper showing.†(Id.
at pp. 692–693, 695; see also People v.
Fosselman (1993) 33 Cal.3d 572, 582.)
The Smith court explained
that, “‘[i]f the claim of inadequacy relates to courtroom events that the trial
court observed, the court will generally be able to resolve the new trial
motion without appointing new counsel for the defendant. [Citation.]
If, on the other hand, the defendant’s claim of inadequacy relates to
matters that occurred outside the courtroom, and the defendant makes a
“colorable claim†of inadequacy of counsel, then the trial court may, in its
discretion, appoint new counsel to assist the defendant in moving for a new
trial. [Citations.]’ [Citation.]â€
(Smith, at pp. 692-693.) However, the court emphasized that new
counsel should only be appointed if a proper showing of ineffective assistance
of trial counsel has been shown through inquiry by the trial court of defendant
and his trial counsel. (See, e.g.
388, 396-397, disapproved of on other grounds in Smith, at pp. 693-694, 696.)
In People v. Stewart, supra, 171 Cal.App.3d at pp. 396-398, the defendant’s attorney of record, at the behest of the
defendant, filed a motion for new trial
on the basis of his own incompetency. At
a hearing on the motion, the trial court asked the defendant and his counsel to
divulge the basis for the claim of incompetence. (
Stewart, at pp. 393, 397.) At an in
camera hearing, the defendant stated that he was inadequately represented when
counsel failed to call his personal doctor and “‘two witnesses up on the fourth
floor.’†(Id. at p. 394.) With respect
to the latter two witnesses, the trial court failed to question the defendant
about their expected testimony. (
case because it reasoned: “The trial
court did not inquire into the substance of the witnesses’ expected testimony,
but instead denied the motion without endeavoring to learn whether the
testimony might have been material or even crucial and without appointing new
counsel to assist the court in this regard.
We believe this constituted error.
‘A trial judge is unable to intelligently deal with a defendant’s
request for [a new trial on the basis of trial counsel’s incompetence or for]
substitution of attorneys unless he is cognizant of the grounds which prompted
the request.’ [Citation.] A denial of appellant’s motion for new trial
based on ineffective representation without careful inquiry into the
defendant’s reasons for claiming incompetence ‘“is lacking in all the
attributes of a judicial determination.â€
[Citations.]’ [Citation.]†(Ibid.)
When a defendant with appointed counsel seeks new counsel on the
grounds of inadequate representation, the court must allow the defendant to
explain the bases for his contentions and describe specific instances of
ineffective representation. (
124 (Marsden).) However, a defendant must make a “‘clear
indication’†that he wants to substitute his attorney in order to be entitled
to a Marsden hearing. (People
v. Sanchez (2011) 53 Cal.4th 80, 89-90; see also People v. Richardson (2009) 171 Cal.App.4th 479, 484.)
Here, defendant filed a motion for
new trial based on ineffective assistance of counsel and specifically requested
in his prayer for relief that he be appointed counsel. Counsel for defendant in open court stated he
and defendant wanted the trial court to
review the new trial motion. Neither
trial counsel nor defendant stated in open court the basis for the motion, and
defendant did not explicitly state that he was requesting substitute
counsel. The trial court did not
consider the written motion for new trial because defendant was not counsel of
record. If the trial court had read the
motion for new trial, it would have been clear from the motion that he was
making a motion for new trial based on ineffective assistance of counsel and
that in his prayer for relief he sought to be appointed new counsel.
Defendant has provided no case, and we have not found one, that holds
a request in the prayer for relief in a motion for new trial for appointed
counsel is a “clear indication†of a request to substitute counsel. However, we need not resolve the issue. Here, at the very least, the trial court
should have considered the motion for new trial to determine if it presented
grounds for a new trial or substitution of counsel to present the claim. We certainly do not purport to hold that the
trial court is obligated to review every document that is presented to it by a
defendant when he has appointed counsel.
However, here, counsel asked that the trial court consider the motion
for new trial on two separate occasions in open court. Defendant did what he could to make his
claims for a motion for new trial be known, but they were ignored by the trial
court. The trial court erred by failing
to make a further inquiry into defendant’s request to file a motion for new
trial. If the trial court here had
reviewed the motion for new trial, it may have easily resolved the issues
raised in the motion. It may not have
had to substitute counsel if it could resolve the issue simply by reviewing the
new trial motion and making its decision based on its courtroom observations. (See People
v. Smith, supra, 6 Cal.4th at pp. 692-693.)
Having determined that there was an inadequate inquiry into
defendant’s request for a motion for new trial, the final question before us is
whether the trial court’s error was prejudicial. (People
v. Braxton (2004) 34 Cal.4th 798, 818 [court’s refusal to hear motion for
new trial is harmless error if record on appeal allows reviewing court to
determine as a matter of law the motion lacked merit or the trial court
properly exercised its discretion to deny it].)
Here, although defendant filed his
motion for new trial, he was not given the opportunity to explain his motion or
his reasons for appointment of counsel to pursue his claims. The People claim defendant was not prejudiced
by the inadequate inquiry because the trial court would not have granted the
motion for new trial. They insist the
evidence that defendant would have produced ‑‑ that his
counsel failed to call witnesses ‑‑ would not have
warranted the granting of a new trial.
The People base this conclusion on the
defense counsel if there would be any
defense witnesses. Defendant’s
counsel responded, “I am anticipating these three, although none of them did
show up on their subpoena today, . . . I heard from Gloria
Hernandez. I didn’t hear from the other
two. I was going to try to call them and
see what their deal is. They live in the
apartment complex that the incident occurred in. [¶] I
understand that she is saying that their testimony is irrelevant as to whether
defendant resided at the residence; however, they will testify that they saw
him there every day.†Defendant also
stated that the neighbors hated him.
Defense counsel represented that
they were impeachment witnesses to show that defendant lived in the apartment
and that he was there on a daily basis.
The People claim this evidence would not have helped defendant.
However, we cannot speculate, based
on the record before us, as to defendant’s exact claims. The trial court’s failure to conduct a
further inquiry has resulted in a record which does not explain whether
defendant actually was complaining about the above witnesses or other
witnesses. It also does not address the instructional
error claims or the claim for mistrial.
Despite the filing of the motion for new trial by defendant, his claims
are not entirely clear and he was not given a chance to explicate those
reasons. As stated in
page 819, “when, as here, a trial court has refused to hear a defendant’s new
trial motion, and the appellate record is insufficient to permit a reviewing
court to determine as a matter of law whether the proposed motion was
meritorious, the reviewing court may remand the matter to the trial court for a
belated hearing of the new trial motion, absent a showing that a fair hearing
of the motion is no longer possible.†As
such, the appropriate remedy is remand for further inquiry by the trial court
into defendant’s complaints about his trial counsel and other issues raised in
the new trial motion. If possible, the
court may rule on the motion for new trial without substituting new counsel; if
not, it may determine if substitute counsel should be appointed to file a new
trial motion.
title="">[4]
VIII
DISPOSITION
The judgment is conditionally
reversed and the matter is remanded with the following directions: (1) The court shall hold a hearing on
defendant’s motion for new trial; (2) if the court finds that defendant has
made a proper showing of ineffective assistance of trial counsel, it can either
grant the motion for new trial or appoint new counsel to represent defendant
and entertain a motion for a new trial if newly appointed counsel files one;
and (3) if newly appointed counsel makes no new trial motion, if no counsel is
appointed and the trial court denies the motion for new trial, or the new trial
motion filed by substitute counsel is denied,the court shall reinstate the
judgment.
In the event of reinstatement of the
judgment, we order that the sentences on counts 1 (false imprisonment) and 3
(dissuading a witness) be stayed pursuant to section 654. The minute order from sentencing and the
abstract of judgment shall be modified.
A copy of the corrected abstract of judgment shall be forwarded to the
California Department of Corrections and
Rehabilitation. In all other
respects, the judgment, if reinstated, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
Acting
P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
breaking and observed a man enter her apartment by reaching in the window and
opening the door.
