P. v. Jones
Filed 9/6/12 P. v.
Jones CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY JONES,
Defendant and Appellant.
C065140
(Super.
Ct. No. 09F01867)
We strongly
discourage anyone from choosing crime as a career. Nevertheless, as with any pursuit in life,
one should be prepared. For instance, if
you are planning to carjack someone, you should make sure you can drive a
stick-shift.
Defendant Anthony
Jones and an accomplice tried to take Garrett Freitas’s car at gun point. The duo were apparently unaware that starting
a manual transmission vehicle requires depression of the clutch pedal. Unable to start the car, defendant turned the
gun on Freitas and ordered him to drive, converting what would have been a
straightforward carjacking into attempted
carjacking and kidnapping for
purposes of robbery. About half a mile
away, defendant told Freitas to pull over and call someone who had drugs or he
“wouldn’t be going home.” Police arrived
as Freitas scrolled through his cell phone contacts. Defendant fled on foot with the gun and was
found a short distance away hiding in a backyard shed.
Defendant pled
guilty to being a felon in possession of a firearm. He was then tried by jury and convicted of
attempted carjacking and kidnapping for robbery. The jury also found that defendant personally
used a firearm during the commission of the crimes. Following a bifurcated hearing, the trial
court found that defendant had been convicted of three prior serious felony
offenses (Pen. Code, § 667, subd. (a))
which mandated sentencing under the three strikes law (§§ 667,
subd. (b)-(i), 1170.12). Defendant
was sentenced to an aggregate indeterminate term of 50 years to life plus a consecutive
determinate term of 25 years for the enhancements.
On appeal,
defendant contends: (1) the trial
court erred in imposing sentence under the three strikes law because there was
prior felony offenses, which were earned in New York state, constituted serious
felony offenses under California law; (2) the trial court violated
defendant’s constitutional right to counsel by denying five motions
made under People v. Marsden (1970) 2
Cal.3d 118 (Marsden) to replace his
appointed counsel; (3) the trial court also violated defendant’s
constitutional rights by denying his motion to dismiss the case, which was
based on the assertion that his appointed counsel collaborated with the
prosecution; (4) the trial court further erred by failing to suspend the
proceedings after entertaining a doubt concerning defendant’s competence to
stand trial; and (5) the cumulative prejudice arising from the foregoing
assertions of error requires reversal.
The Attorney
General concedes there was insufficient evidence that defendant’s New
York convictions qualified as strikes within the
meaning of the three strikes law. We
agree and remand the matter to the trial court for the limited purpose of
determining whether these prior convictions are strikes. Defendant’s remaining claims lack merit. As we shall explain, the trial court made an
adequate inquiry into defendant’s complaints concerning his appointed
counsel. Nor did the trial court abuse its
discretion in determining that defendant failed to demonstrate that
denial of substitution would substantially impair his constitutional right to
the assistance of counsel. Defendant’s
claim that the trial court violated his constitutional rights by denying his
motion to dismiss the case is forfeited because defendant did not adequately
brief this issue on appeal. Defendant’s
assertion that the trial court prejudicially erred by failing to suspend the
proceedings after entertaining a doubt concerning his competence to stand trial
fails because the record does not disclose that the trial court ever
entertained such a doubt. Finally,
having found no trial error, prejudicial or otherwise, defendant’s assertion of
cumulative prejudice must also fail. Accordingly,
we affirm defendant’s convictions, vacate the sentence, and remand to the trial
court for the limited purpose of determining whether defendant’s prior New
York convictions are strikes under the three strikes
law.
FACTS
During the early
morning hours of March 9, 2009,
Freitas stepped outside his apartment on Walnut Avenue
in Carmichael to smoke a cigarette. As he did so, defendant and another man
approached quickly from the entrance to the apartment complex. Defendant was wearing black pants, a red
“puffy” jacket, and a red “beanie.” The
other man, Ronnie Rentie, was dressed entirely in black. Defendant pulled a semi-automatic handgun and
chambered a round as they approached.
Freitas was knocked to the ground by either defendant or Rentie and
yelled that he did not have any money.
Defendant pointed the gun at Freitas and told him to “be quiet” while
Rentie went through his pockets. Rentie
took his cell phone, car keys, cigarettes, and pocket change. Defendant and Rentie then walked away with
their acquisitions.
About a minute
later, while Freitas was still on the ground, defendant and Rentie returned and
asked where his car was parked. Freitas
pointed to his 1992 Toyota Tercel.
Defendant grabbed Freitas, ordered him over to the car while holding the
gun to his back, and pushed him to the ground behind the car. Defendant got in the car and tried to start
the vehicle. Because he did not depress
the clutch pedal, the ignition made a clicking sound, but the car did not
start. Defendant then got out of the car
and told Freitas to “get in and drive.”
Freitas complied, getting in the driver’s seat while Rentie got in the
back seat and defendant got in the front passenger seat.
Freitas pulled out
of the apartment complex and drove north on Walnut Avenue. With the gun pointed at Freitas, defendant
told him to “look through [his] phone and find drugs for them,” threatening
that if he did not find drugs, he “wouldn’t be going home.” Rentie returned the cell phone so that
Freitas could comply with the demand.
Freitas explained that he did not know anyone with drugs. Defendant then told Freitas to turn onto
Modoc Way, turn off the headlights, and pull over. Freitas again complied. He then scrolled through his cell phone
contacts in an effort to find drugs for defendant and Rentie. About 15 to 20 seconds later, a Sacramento
County Sheriff’s Department patrol car pulled up behind the Tercel with the
overhead lights on. Defendant warned
Freitas: “Don’t say anything or I’m
going to shoot you.”
The fast response
of law enforcement was due to Freitas’s girlfriend, Lacey Paulson, who heard
the commotion outside the apartment, saw her boyfriend being abducted from the
living room window, and called 911.
Sergeant Charles Turner responded to the apartment, spoke briefly with
Paulson, and then found the Tercel about half a mile from the apartment. When Turner approached the driver’s side of
the vehicle, he asked Freitas if “everything was okay.” Freitas responded that “everything was fine,”
but appeared to be nervous, so Turner ordered him out of the vehicle and
brought him back to the patrol car. At
the patrol car, Freitas said: “God,
please help me. Please help me.”
As another patrol
car arrived on the scene, defendant got out of the Tercel. Both Sergeant Turner and the new arrival,
Deputy Darren Benato, ordered defendant to get back in the car. Defendant responded that the car was not his
and started to back away from the car.
Ignoring several commands to get down on the ground, defendant turned
and ran away. At this point, Rentie also
emerged from the car and was detained by Sergeant Turner without incident. Deputy Benato got back into his patrol car to
pursue defendant, but was unable to find him.
About an hour
later, Sergeant Turner was advised that a K-9 unit that was searching the
surrounding neighborhood had alerted to a residence a short distance from where
defendant had fled from the Tercel.
Defendant was found hiding in a shed in the backyard of that
residence. Surrounded by several
sheriff’s deputies, defendant opened the shed and ran through the
backyard. One of the deputies shot
defendant as he tried to jump over a retaining wall. A police dog then pulled defendant off of the
wall. A loaded handgun fell from defendant’s
waistband as the deputies took him into custody. Paramedics arrived a short time later,
treated defendant for gunshot and dog bite wounds, and transported him to the
hospital.
DISCUSSION
Defendant contends
there was insufficient evidence that his three prior New York
convictions (a 1989 third-degree attempted robbery, a 1991 second-degree
robbery, and a 1997 third-degree attempted robbery) constituted strikes within
the meaning of the three strikes law. We
agree.
“To qualify
as a serious felony, a conviction from another jurisdiction must involve
conduct that would qualify as a serious felony in California.” (People
v. Avery (2002) 27 Cal.4th 49, 53; see § 1170.12, subd. (b)(2); see
also § 667.5, subd. (f).) In
determining whether an out-of-state prior is a serious felony under the three
strikes law, “‘the trier of fact may consider the entire record of the
proceedings leading to imposition of judgment on the prior conviction to
determine whether the offense of which the defendant was previously convicted
involved conduct which satisfies all the elements of the comparable California
serious felony offense.’ [Citation.] [¶]
‘“[W]hen the record does not disclose any of the facts of the offense actually
committed” [citation], a presumption arises that the prior conviction was for
the least offense punishable [citation].
However, the record need only contain additional evidence from which the
court can reasonably presume that an element of the crime was adjudicated in
the prior conviction. [Citation.]’ [Citation.]”
(People v. Zangari (2001) 89
Cal.App.4th 1436, 1440; People v. Myers
(1993) 5 Cal.4th 1193, 1195; People v.
Valenzuela (2010) 191 Cal.App.4th 316, 321.)
Robbery is a strike
offense. So is attempted robbery. (§§ 1170.12, subd. (b)(1), 1192.7,
subd. (c)(19), (39).) However,
California and New York define robbery differently. In California, “[r]obbery is the felonious
taking of personal property in the possession of another, from his [or her]
person or immediate presence, and against his [or her] will, accomplished by
means of force or fear.”
(§ 211.) Thus, robbery is a
form of aggravated larceny in which “the elements of larceny are intertwined
with the aggravating elements to make up the more serious offense.” (People
v. Gomez (2008) 43 Cal.4th 249, 254.)
“Larceny requires the taking of another’s property, with the intent to
steal and carry it away.
[Citation.] ‘Taking,’ in turn,
has two aspects: (1) achieving
possession of the property, known as ‘caption,’ and (2) carrying the
property away, or ‘asportation.’
[Citations.]” (
must be accomplished by force or fear and the property must be taken from the
victim or in his [or her] presence.” (
In New York, robbery
is defined as follows: “Robbery is
forcible stealing. A person forcibly
steals property and commits robbery when, in the course of committing a
larceny, he uses or threatens the immediate use of physical force upon another
person for the purpose of: [¶]
1. Preventing or overcoming resistance to the taking of the property or to
the retention thereof immediately after the taking; or [¶] 2. Compelling
the owner of such property or another person to deliver up the property or to
engage in other conduct which aids in the commission of the larceny.” (N.Y. Pen. Law, § 160.00.) The practice commentary following this
provision points out that, unlike the California robbery statute, there is “no
requirement that the defendant take the property ‘from the person or in the
presence of another,’ as was required under the former [New York] Penal Law
[§ 2120]. Accordingly, a culprit
who meets his [or her] victim a few blocks from the victim’s store, knocks the
victim unconscious, and then enters the victim’s store and steals property from
the store may be guilty of robbery; similarly, a culprit who forces a bank
president to telephone his bank to direct an employee to take money from the
safe and give it to an accomplice may be guilty of robbery.” (Prac. Com. foll. N.Y. Pen. Law,
§ 160.00; see also People v. Smith
(1992) 79 N.Y.2d 309, 314 [“the Commission determined that the proposed robbery
statute was deficient in that it . . . contained a ‘from the person
or in the presence of’ limitation which would exclude a variety of forcible
thefts that were ‘robberies in spirit’”].)
Thus, because robbery
in New York can be committed without taking property from the victim or in his
or her presence, the record of defendant’s 1991 robbery conviction must contain
evidence from which the trial court could reasonably presume that defendant in
fact took property from the victim or in his or her presence. And because “[a]n attempted robbery requires
a specific intent to commit robbery and a direct, ineffectual act (beyond mere
preparation) toward its commission” (People
v. Medina (2007) 41 Cal.4th 685, 694-695), in order for defendant’s 1989
and 1997 attempted robbery convictions to qualify as strikes, the record must
contain evidence from which the trial court could reasonably presume that
defendant specifically intended to take property from the victims or in their
presence and took a direct but ineffectual step toward doing so. The Attorney General concedes that the record
contains no such evidence. Accordingly,
we must remand the matter to the trial court for a limited retrial on the prior
conviction allegations. (See
734 (Monge II) [141 L.Ed.2d 615,
628]; see also People v. Trujillo (2006)
40 Cal.4th 165, 174.)
Defendant is also
correct that New York robbery law does not always require asportation of the
property forcibly taken from the victim.
At first glance, California and New York laws appear to be identical
with respect to asportation. (Compare
constitute asportation”] with People v.
Reddick (1990) 159 A.D.2d 267, 267-268 [asportation is “an essential
element of larceny” and “is proved by evidence of any ‘appreciable changing of
the location of the property involved’”]; see also People v. Woelfle (2009) 64 A.D.3d 1166, 1167 [“‘a slight movement
of the property constitutes sufficient asportation’”].) However, in New York, a defendant may be
found guilty of vehicle theft without moving the vehicle at all. (See People
v. Alamo (1974) 34 N.Y.2d 453, 457-458 [possession and control are the
“paramount elements” of larceny, and the “actions needed to gain possession and
control over a wallet, including movement of the wallet which, in itself, is
merely an element tending to show possession and control, are not necessarily
the actions needed to gain possession and control of any automobile”].) Not so in California. “California courts, following the common law,
have long held that the ‘taking’ element of robbery requires that a defendant
gain possession of the victim’s property and
asport or carry it away.” (
1054, 1062 [applying this rule of robbery law to the carjacking statute and
distinguishing California law from the New York rule announced in
Here, the record does
not disclose what property defendant forcibly took in 1991 and attempted to
forcibly take in 1989 and 1997. However,
his 1991 robbery conviction was in the second degree, which could have been a
vehicle theft. (See N.Y. Pen. Law,
§ 160.10.) Thus, it is possible
that this conviction did not involve the element of asportation, as that term
is defined under California law. On
remand, the trial court must determine whether the record of conviction
contains evidence from which it can be reasonably presumed that defendant
carried away the victim’s property. With
respect to defendant’s 1989 and 1997 attempted robbery convictions, the trial
court must determine whether there is evidence from which it can be reasonably
presumed that defendant specifically intended to carry away the victim’s
property and took a direct but ineffectual step toward doing so.
We disagree, however,
with defendant’s assertion that New York law does not permit “claim of right”
as a defense in a robbery prosecution.
In California, “a defendant’s good faith belief, even if mistakenly
held, that he has a right or claim to property he takes from another negates
the felonious intent necessary for conviction of theft or robbery.” (People
v. Tufunga (1999) 21 Cal.4th 935, 938.)
The claim of right defense is limited “to forcible takings intended to
recover specific personal property in which the defendant in good faith
believes he has a bona fide claim of ownership or title,” and does not extend
to “robberies perpetrated to satisfy, settle or otherwise collect on a debt,
liquidated or unliquidated.” (
v. Green (2005) 5 N.Y.3d 538, 544 [in a robbery prosecution involving a
particular chattel, “a good-faith claim that the chattel belonged to the taker,
would, if believed by the jury, negate the element of larcenous intent”]; see
also People v. Reid (1987) 69 N.Y.2d
469, 475-476.) Thus, the trial court
could reasonably conclude from defendant’s New York robbery and attempted
robbery convictions that he did not have a bona fide claim of ownership or
title to the property he took or attempted to take.
Finally,
defendant argues that double jeopardy principles bar retrial on the prior
conviction allegations. This argument
fails because, as he acknowledges, “both the United States Supreme Court [in
page 829 (Monge I)] have ruled that
it is permissible to retry alleged prior felony convictions after reversal on
appeal for insufficiency of the evidence at trial.” Nevertheless, defendant asserts that “those
decisions must be revisited in the wake of subsequent rulings made by the
United States Supreme Court” in United
States v. Booker (2005) 543 U.S. 220, 244 [160 L.Ed.2d 621],
296, 301 [159 L.Ed.2d 403], and Apprendi
v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435]. However, as the California Supreme Court
explained in People v. Trujillo,
after the cases relied upon by defendant:
“We are not at liberty to, nor are we inclined to, disregard the holding
of the United States Supreme Court in Monge
II. Nor are we persuaded that we
should reconsider Monge I’s
conclusion that the California Constitution’s double jeopardy clause does not
preclude retrial on a prior conviction allegation in a noncapital sentencing
context.” (Id. at p. 174.) We
cannot hold that double jeopardy principles bar retrial of the prior conviction
allegations. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
We reverse the findings
that defendant’s prior New York convictions constituted strikes within the
meaning of the three strikes law and remand the matter to the trial court for a
retrial on those allegations.
Defendant asserts that
the trial court erred and violated his constitutional right to counsel by
denying five Marsden motions in which
he sought to remove and replace his appointed counsel, Greg Foster. We disagree.
Our Supreme Court
recently reiterated the rules governing the grant and review of a
supra, 2 Cal.3d 118], we held that a
defendant is deprived of his constitutional right to the effective assistance
of counsel when a trial court denies his [or her] motion to substitute one
appointed counsel for another without giving him [or her] an opportunity to
state the reasons for his [or her] request.
A defendant must make a
denial of substitution would substantially impair his [or her] constitutional
right to the assistance of counsel [citation], whether because of his [or her]
attorney’s incompetence or lack of diligence [citations], or because of an
irreconcilable conflict [citations]. We
require such proof because a defendant’s right to appointed counsel does not
include the right to demand appointment of more than one counsel, and because
the matter is generally within the discretion of the trial court. [Citation.]’
[Citation.] When reviewing
whether the trial court abused its discretion in denying a Marsden
motion, we consider whether it made an adequate inquiry into the defendant’s
complaints. [Citation.]” (People
v. Mungia (2008) 44 Cal.4th 1101, 1127-1128; People v. Smith (2003)
30 Cal.4th 581, 606.)
Defendant made a
total of five Marsden motions to
replace Foster as his appointed counsel.
The relevant facts surrounding these motions are recounted below.
1. First Marsden Motion
On May 5,
2009, prior to the preliminary hearing, defendant moved to replace Foster as
his attorney, stating: “I just feel that
I cannot trust him because he is basically lying to me. If he is my lawyer, he is supposed to be my
lawyer. He is supposed to have my best
interest at hand. He should be able to
tell me the truth about anything concerning this case, and he is not doing
it. He is not telling me the
truth.” As an example of Foster’s
alleged deceit, defendant claimed that Foster told him on one occasion that he
had spoken to the prosecutor and on another occasion denied having spoken to
the prosecutor. Defendant also claimed
that Foster lied while advising him not to file a civil suit against the
arresting officers for excessive force, explaining: “He says you might be giving them some evidence
that they don’t have. So, two or three
times later when he comes to see me, I asked him again because I already see
the contradictions. . . . He says well, the background, when they
get it, they might feel you don’t have a civil case. Then what is the [District Attorney] going to
say I said see, that is not what you
told me the last time, you know It is
like every time he comes to see me it is a different story, you know.”
In response to
defendant’s complaints, Foster explained that he advised defendant that he did
not believe a civil suit against the officers would be successful because a
jury would likely believe the officers used reasonable force to apprehend
defendant in light of the fact that defendant was armed with a handgun and
fleeing from the officers when he was shot.
Nevertheless, Foster provided defendant with copies of relevant sections
of a treatise on police misconduct. He
also provided defendant with a claim form, advised defendant of the six-month
filing deadline, and took independent pictures of the scene and defendant’s
injuries. Foster told defendant that if
he chose to file a civil suit, he should wait until the last possible moment
because of the prospect of civil discovery occurring during the middle of the
might be a bargaining chip in settlement negotiations with the
prosecution. Foster further stated that
he had no intention of deceiving defendant.
The trial court
denied the Marsden motion,
explaining: “First of all, to the extent
that there are any conflicts between [defendant] and [Foster], I find in favor
of [Foster]. I have no doubt of his
veracity and the recounting of facts of this case. Further, I find that [Foster] has properly
represented [defendant] and will continue to do so. I further find that there has not been a
breakdown in the relationship such that [Foster] cannot and would not properly
continue to aggressively represent [defendant].” After denying the motion, the trial court
addressed defendant: “I could ask fifty
panel lawyers to come over here in an attempt to replace [Foster]. Not one of them would exceed [Foster]’s skill
or competence. You have no idea how
fortunate you are to have [Foster] represent you. I encourage you to ask around. He is one of the best lawyers in this
county. You could not do better. I understand you are having some difficulty
understanding and communicating with him, but you are extremely lucky to have
him as your lawyer.”
2. Second Marsden Motion
On
September 28, 2009, defendant filed a written Marsden motion. Defendant
complained that he and Foster would “constantly argue” about the facts of the
case, the defense strategy, and whether or not defendant should file a civil
suit against the arresting officers, adding:
“I have actually cursed [Foster] out on several occasions.”
In response,
Foster acknowledged that he and defendant had argued, not about the facts of
the case, but about the legal consequences of those facts. The largest point of contention was whether
or not defendant had a viable claim against the arresting officers for
excessive force. Foster explained: “And I did tell him that I didn’t believe
that a jury would award him any money based on the fact that he was an armed
fleeing felon who had the -- the officers had probable cause to believe had
just committed an armed robbery and an armed carjacking, and had he been
allowed to -- and their efforts with helicopter and dog and officers and voice
commands for some period of time to ask him to come out of the shed, his
refusal to do so, and when he did then bolt out of the shed and run from
officers heading towards the fence, which had he been able to clear it and get
out into the neighborhood would have been an armed felon loose in the
neighborhood.” Nevertheless, as already
mentioned, Foster provided defendant with “probably 40 pages” out of a treatise
on police misconduct and told defendant that “perhaps the District Attorney’s
Office would be willing to bundle his civil claim and his criminal case and
resolve it in a manner that was beneficial to [defendant].” However, the District Attorney’s office
“never indicated any willingness to do so,” and issued a letter to the
Sheriff’s Department finding that the shooting was lawful.
Defendant also
claimed that Foster “told [him] on several occasions to basically lay down and
accept whatever the Prosecution is going to do in this case.” Foster responded: “I think the term I used is sometimes you are
caught with your hand in the cookie jar.
And my advice to [defendant] was not to lay down, but there [were] some
charges that we had room to argue on and there were some charges that we did
not have room to argue on. [¶] And the fact that property was taken from
[Freitas] by force is a pretty clear evidence of a robbery, and the fact that
[Freitas] was taken about a half-mile in his vehicle by force is also pretty
strong evidence of a kidnapping, and that -- but there was plenty of room to
argue that this was not a kidnap for robbery, but rather a kidnap for
chauffeuring . . . . [¶] . . . There is a
significant difference between a simple kidnapping charge carrying a maximum of
eight years versus kidnapping for robbery, which carries life. Based on the facts as I saw them, that was
the best viable defense.”
Defendant also
asserted that Foster was “placed on the case in order to set [him] up.” In connection with this assertion, defendant
claimed that when Foster replaced a previous panel attorney, Renwick, who was
initially assigned to his case, Foster told defendant that Renwick did not have
enough experience to handle the case.
Defendant did not believe this was the actual reason because Renwick
told him that he had 30 years experience.
In response, Foster denied that he was assigned to the case in order to
“set up” defendant and stated that he did not know the reason he was assigned
to take over the case from Renwick except that there are minimum experience
requirements in order to handle certain cases.
The trial court found no evidence that Foster was assigned the case to
set up defendant and added: “I will
point out to you, I don’t know what [Renwick]’s experience is, but the
experience that [Foster] has of a hundred jury trials, roughly a hundred jury
trials and been practicing since 1985, that is the kind of experience that most
people would give their right arm to have as their defense counsel.”
Defendant also
claimed that Foster was “railroading” him by stating in an in limine motion
that “Freitas would not be asked to attempt to identify [defendant] in court as
one of the individuals of the attack,” and that there would be “no mention of
the lawfulness of the shooting.” When
the trial court asked defendant why he would want the jury to hear that the
shooting was found to be lawful, defendant replied: “Why not
It’s not hurting my case. What
I’m saying is this, right It’s not
hurting my defense. It’s not hurting
anything. Why would he not want this
mentioned”
With respect to
the issue of identification, Foster explained that, while Freitas did not
conclusively identify defendant at the preliminary hearing, he did state that
defendant “fit the size and build” of one of the assailants. Foster also explained: “[W]hatever play we can get with [Freitas’s]
ability to identify or not identify [defendant] is -- it would be a [Pyrrhic]
victory at most. While there may be some
inability, the fact of the matter is, there is an officer who saw him run from
the car who identified him. He’s on
videotape leaving the car in clothing that is found on him a short distance
away, a couple of hours away, hiding in somebody’s shed.” This evidence, coupled with the fact that
Rentie would also testify that defendant was the one who pulled the gun on
Freitas, caused Foster to believe that “the identity issue [was] very, very
weak.” Thus, Foster concluded that it
would be better to have Freitas leave the stand without attempting to identify
defendant than to add what would likely be a partial identification to the
other identifications the prosecution would be able to proffer. The trial court explained to defendant that
“the defense counsel is the captain of the ship, he or she is the person who
has to make the tactical decisions.”
Also on the
identification issue, defendant complained that Foster had moved in limine to
exclude the police in-car camera footage, calling that decision “mind
boggling.” Foster responded: “What can be seen on the in-car camera is an
individual who matches [defendant’s] clothing description . . .
getting out of the car, walking away from the officer’s commands and then
running from the scene. So while the
screen that I saw [was] not detailed enough to be able to see the face of the
individual who got out of the car, the clothing is clearly discernible and it
matches both the descriptions of clothing by witnesses and also the clothing
that [defendant] had on him when he was apprehended.” The trial court commented that Foster’s
attempt to keep this piece of evidence away from the jury was a strategic
decision and amounted to “good lawyering.”
Defendant responded: “To me, it’s
not.”
Defendant also
accused Foster of “feeding the Prosecution [his] defense secrets.” As defendant explained this accusation: “Foster’s defense was to admit to kidnapping
and try to fight kidnapping for robbery.
Since I refused to take that route, [Foster] alerted the Prosecution, I
believe, who then gave my co-defendant a deal to testify against me a couple
days before trial started.” Foster
responded: “I have not done that. In fact, as I searched for issues in this
case, the potentially winnable issues that I see, number one, are [
as we discussed, and number two, the prior convictions out of New York do not
qualify as strikes under California law. [¶] Neither of -- the first issue was
discussed openly at preliminary hearing when I was asking the Court not to hold
[defendant] to answer. The second has
not been discussed with the Prosecution at all.” Foster also explained that the reason the
District Attorney decided to give Rentie a deal in exchange for his testimony
against defendant was that Freitas had made some “racially derogatory remarks”
on a social networking website that could damage his credibility. When asked whether he wanted to respond,
defendant stated that he could not prove Foster had divulged defense secrets
without the trial court’s “assistance.”
Defendant also
complained that Foster refused to file a Pitchess
motion.
facts of defendant’s case warranted the filing of such a motion. The trial court pointed out that this was a
strategic decision and stated: “I don’t
see anything from what you’ve presented here that says that he has made a poor
strategic decision.”
Defendant further
complained that Foster had not given him all of his discovery and tried to keep
him “in the blind about crucial information.”
Foster responded that except for a recorded interview of Deputy McAtee, the
officer who shot defendant, and the in-car camera footage, defendant had seen
all of the discovery. With respect to
the in-car camera footage, there were some technical difficulties that
prevented the footage from playing on Foster’s computer. Foster and the District Attorney were working
on a solution to the problem. With
respect to the recorded interview, the audio on the DVD was not clear and
defendant declined Foster’s offer to play for him the separate audio recording
of the interview.
Defendant also
complained that Foster “refused to approach the [District Attorney] about
possible plea negotiations after saying that he would once [defendant’s] New
York priors came back to show that [defendant] suffered no strikes.” Foster explained that the District Attorney
was not interested in any sort of plea arrangement with defendant.
Defendant further
complained that Foster advised him to waive his
massive backup of cases” in the trial court.
Foster responded that he had never seen a serious felony case dismissed
because the trial court had a backlog of cases.
The trial court agreed. Finally,
defendant asserted that Foster and the prosecutor who was originally assigned
to the case, Timothy Carr, had “secret dealings” when they either “met or
planned to meet” outside his presence.
Foster denied this allegation.
At the conclusion
of the hearing, the trial court asked Foster whether his relationship with
defendant had so deteriorated that he did not feel he could provide adequate
representation as a criminal defense attorney.
Foster responded: “No.” The trial court asked whether Foster was
willing to continue to represent defendant and give his best efforts in doing
so. Foster responded: “Yes.”
The trial court then denied the Marsden
motion.
Following denial
of the Marsden motion, defendant
moved under Faretta v. California
(1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)
to represent himself. However, when the
trial court questioned defendant concerning his Faretta motion, defendant stated:
“I don’t see how I can prepare for a defense.” The trial court agreed and advised
defendant: “I don’t see how you can
possibly prepare for a defense of this case.
You need a lawyer, sir.”
Defendant responded: “You’re
right.” Nevertheless, defendant
reasserted his decision to represent himself, stating: “I would rather represent myself and get
multiple life terms than have [Foster] represent me, period.” Over defendant’s objection, the trial court
postponed the matter until the following day to give defendant an opportunity
to reconsider his decision and attempt to work things out with Foster. Defendant responded: “I’m not talking to this man ever again,
period.”
The following day,
the trial court asked defendant whether he had changed his mind about
representing himself. Defendant asked to
revisit the Marsden issue. The trial court declined the request and
began to question defendant to ensure he understood the consequences of
representing himself. Defendant answered
that he did not care whether he understood and then refused to answer any more
questions. After a short recess, the trial
court reconvened the hearing on the Marsden
motion. The trial court then asked
defendant whether anything new had happened that he believed would entitle him
to have Foster replaced. Defendant
refused to respond. The trial court
again denied the Marsden motion. Returning to the Faretta motion, defendant still refused to answer questions, which
made it impossible for the trial court to determine whether his request to
represent himself was unequivocal, knowing, and intelligent. Accordingly, the Faretta motion was denied.
3. Third Marsden Motion
The following day,
defendant again moved to replace Foster as his attorney, stating that certain
boxes that were checked on the written Marsden
motion were not discussed during the previous hearing. While the trial court believed that matter
had been fully litigated, it nevertheless allowed defendant to address each
checked box.
The first box (a)
stated: “Counsel has failed and/or
refused to confer with declarant concerning the preparation of declarant’s
defense.” Addressing this contention,
defendant acknowledged that Foster had conferred with him concerning the
preparation of the defense by complaining that he and Foster argued over the
defense strategy. And when the trial
court commented that defendant was the one who was refusing to speak to Foster,
defendant admitted that he had recently refused to speak to Foster. Foster added that he had conferred with
defendant “12 or 13 times” concerning the preparation of the defense before
defendant refused to see him. The trial
court ruled: “I do not find that
counsel’s failed or has refused to confer with the declarant. I think quite to the contrary. It seems to be the other way around.”
The second box (b)
stated: “Counsel has failed and/or
refused to communicate with declarant.”
Addressing this contention, defendant stated: “B’s answered since A is answered.” The trial court agreed. Defendant then complained about the substance
of the communication: “[T]he
communication that we’re talking about, you know, is him just telling me to lay
down, just lay down; you know, I’m going to argue that it wasn’t a kidnap for
robbery. [¶] Other than that, lay down, that’s the communication, period, and
argue that you didn’t suffer any prior strikes.
That’s it.” As this argument was
fully addressed in the previous hearing, the trial court moved on to the next
issue.
The third box (c)
stated: “Counsel has failed and/or
refused to subpoena witnesses favorable to the defense and deprived declarant
of the testimony critical to the defense.”
Addressing this contention, defendant explained that while the police
were searching the neighborhood following his flight from the Tercel, a trained
police dog “alerted” to a nearby residence.
A background check on a vehicle parked in front of the residence came
back to a man with “Antonio” as his middle name. At the time, officers believed this could be
a possible match for the suspect.
Defendant complained that Foster did not subpoena this individual and
anyone else who lived at the residence.
However, as Foster explained, this individual was Hispanic while the
victim and his girlfriend identified the assailants as African-American. Moreover, defendant was found a short time
later in a shed wearing the same clothes that were seen on the person fleeing from
the Tercel. And the following day, while
at the hospital, defendant admitted to police that he was the one who ran from
the vehicle. The trial court found that
Foster made a rational decision not to subpoena this individual.
The fourth box (d)
stated: “Counsel has failed and/or
refused to perform and/or to have performed investigation(s) critical and
necessary to the defense.” The trial
court asked defendant: “Other than what
you have just previously stated regarding that house, is there anything else
he’s refused to do” Defendant responded: “I can’t even think right now, so I don’t
know.” The trial court found no basis
for concluding that Foster had failed to adequately investigate the case and
moved on to the next issue.
The fifth box (g)
stated: “Counsel has failed and/or refused
to prepare and file motion(s) critical to the defense.” Addressing this contention, defendant
repeated his assertion that Foster should have filed a Pitchess motion, and also argued that Foster should have moved to
suppress the identifications made by Rentie and Sergeant Turner. The trial court declined to readdress the
filing such a motion would have been “inappropriate” or “extraneous.” With respect to the motions to suppress,
Foster stated: “I don’t know the legal
basis upon which [defendant] suggests that either [Rentie’s] identification of
him or Sergeant Turner’s identification of him could be suppressed.” The trial court ruled that Foster’s decision
not to bring these motions was rational and pointed out that “there is no
requirement of the defense counsel to bring irrational motions or motions based
on irrational beliefs or unsupportable beliefs.”
The sixth box (h)
stated: “Counsel has failed and/or
refused to impeach prosecution witness(es).”
Addressing this contention, defendant complained that Foster did not
impeach Freitas or Sergeant Turner at the preliminary hearing. Foster responded that he cross-examined both
individuals at the preliminary hearing and explained that defendant had not
mentioned anything else that he believed should have been used to impeach these
witnesses. Defendant then explained that
he wanted Sergeant Turner impeached because Sergeant Turner “lied on the stand”
when he claimed that he did not know immediately who fired the shot after
defendant ran from the shed. Foster told
defendant that he wanted to save that for trial. The trial court responded: “It seems to me that if I’m convinced that
the preliminary hearing is going to end up with a holding order, why would I
fire all my -- my ammunition at the preliminary hearing [¶] I’d save some for
trial. [¶] Is that essentially the way this worked out . . . .” Foster answered: “Yes.”
The trial court found this to be a “reasonable defense strategy” and not
a “refusal to impeach a prosecution witness at a preliminary hearing.” With respect to Freitas, defendant complained
that Foster did not further impeach this witness after he stated at the
preliminary hearing that he could not identify defendant as one of the
assailants. Foster responded: “Well, if he’s complaining that the witness
-- the victim didn’t identify him and then I left it alone, I’m not sure that’s
an appropriate complaint.” The trial
court asked whether that made sense to defendant. Defendant answered: “I mean, everything else is getting shut
down. Just shut down that, too.”
The seventh box
(j) stated: “Counsel has failed and/or
refused to declare prejudice and/or conflict against declarant.” Foster responded: “I have no legal conflict and I have no level
of prejudice against [defendant] that would make it difficult or impossible for
me to perform my duties in his defense.”
The trial court found no evidence of prejudice or conflict sufficient to
grant the motion on these grounds.
The final box (k),
which was handwritten, stated: “Counsel
has failed and/or refused to furnish declarant with all of the discovery needed
in order to defend himself; Counsel has been giving the prosecution information
about the declarant’s defense on several occasions.” Addressing this contention, defendant claimed
to have new evidence that Foster had supplied defense secrets to the
prosecution, specifically that he witnessed Foster “constantly” sending text
messages to the prosecutor, Carr, but did not know what was in these text
messages. Defendant asked for all e-mail
and text messages exchanged between Foster and Carr. Foster denied sharing defense secrets with
the prosecution. He also denied sending
any text messages to Carr, but admitted that he had sent e-mails over his cell
phone, which may have looked like text messages to defendant. Foster offered to share all such e-mails with
defendant. Foster also offered to share
other items of discovery that he recently received, but defendant refused to
meet with him at the jail. Defendant
further complained that he had not received copies of the “roughly 400” crime
scene photos and was missing five pages from Deputy McAtee’s interview. Foster agreed to look into these missing
pages for defendant. Foster also agreed
to provide defendant with copies of all crime scene photos that were not
duplicative.
The trial court
denied the Marsden motion,
stating: “I think we have now
[discussed] everything that we can possibly discuss from the items that you’ve
prepared and filed on September 28th. [¶] And with that, I find that there
[are] no grounds for -- for the granting of a Marsden motion.”
4. Fourth Marsden Motion
On November 10,
2009, defendant again moved to replace Foster as his attorney. This time, defendant complained about a
particular e-mail exchange between Foster and Carr in which defendant claimed
Foster violated the attorney-client privilege.
The first e-mail is from Foster explaining that he was having technical
problems viewing the in-car camera footage, which apparently had been sent to
him as a video file. Carr responded that
he would try to get a “ready-made” copy of the footage to Foster and also
offered to allow him to view the video file at the District Attorney’s
office. Foster responded: “[T]hanks for the offer. [T]he one I’m primarily interested in is the
camera at the scene of the initial traffic stop where my guy flees on foot.
[H]ave you looked at that one yet”
Carr responded: “[Y]eah I watched
it . . .
you can see the red jacket, quality is not good enough for a definitive
ID. You can see him get out, start
backing away, and then take off.”
(Italics added.)
Defendant
complained about the italicized portion of Foster’s e-mail, explaining: “He is speaking to the Prosecution letting
the Prosecution know that I did -- that I did this crime.” Defendant further argued: “After [Foster] tells him that that was me,
now all of a sudden, since they see that they can’t see me on camera, now they
switch their tactics. Timothy Carr gets
off the case. The district attorneys
switch their tactics and give my co-defendant a deal.”
In response,
Foster explained that prior to the e-mail exchange, Carr told him that
defendant could be seen in the video fleeing from the car, referring to defendant
as “your guy.” Foster had not seen the
video because of technical problems and simply stated, using the same
terminology as Carr, that he was interested in seeing the video purportedly
showing “my guy,” i.e., defendant, fleeing from the car. This was not meant to be taken as an
admission that defendant was actually the one depicted in the video. Foster further explained: “I did not disclose to [Carr], I did not
disclose to [Liske, the prosecutor who replaced Carr on the case], I did not
disclose to anybody else outside of the privileged circle of confidence that
only [defendant] and I share, things that [defendant] has told me. I don’t do that. I didn’t do that in this case. I am not working for the [District
Attorney]. I am trying to do the best I
can for [defendant].” Foster also
explained that Carr “was involved in another jury trial when this case was
first sent out to trial, and by necessity, the District Attorney’s Office had
to hand this case off to another prosecutor to handle the trial. That explains [Liske]’s involvement in the
case, not, as far as I know, any efforts by anybody to remove [Carr] for any
sort of impropriety.”
The trial court
accepted Foster’s explanation, found no violation of the attorney-client
privilege, and denied the Marsden
motion. Foster then stated that his
relationship with defendant had not so deteriorated that he would not be able
to provide an adequate defense.
Defendant responded: “I’m going
to file charges against [Foster]. [¶] . . . [¶] What I’m telling
you is a conflict of interest, this man cannot be my attorney if I’m going to
file charges against him.” The trial
court confirmed its ruling denying the Marsden
motion.
Defendant then
renewed his Faretta motion. The trial court advised defendant of the
consequences and dangers of representing himself and elicited responses from
defendant indicating that he was literate, fully understood these consequences,
and nevertheless wanted to represent himself.
The trial court granted the motion.
On December 28,
2009, during a hearing on a motion to suppress evidence, defendant told the
trial court: “Well, I’m objecting to
everything that you have done ever since I have been pro per, and I’m asking
right now for counsel.” The trial court
reappointed Foster over defendant’s objection.
5. Fifth Marsden Motion
On
February 2, 2010, defendant again moved to replace Foster as his
attorney. Defendant argued that Foster
had not provided him with all of the e-mails and text messages exchanged with
Carr. Foster responded that he had given
defendant all such e-mails and that there were no such text messages. Defendant also stated that he and Foster had
“no relationship whatsoever” and argued that Foster did not “want to fight for
[him].” Defendant further complained
that Foster did not “fix” the Pitchess
motion defendant filed while representing himself.
The trial court
denied the Marsden motion, explaining
that it believed Foster had provided defendant with all the e-mails exchanged
with Carr. With respect to the other
complaints, the trial court stated that it would not entertain “the same issues
over and over again.” Following denial
of the Marsden motion, defendant
again moved to represent himself. The
trial court again advised defendant of the consequences and dangers of
representing himself and again granted the motion allowing him to do so.
Defendant asserts
that by the time he discovered “the ‘my guy’ e-mail,” his relationship with
Foster had broken down to such an extent that the refusal to replace Foster
violated his constitutional right to counsel.
Specifically, defendant claims the trial court “overlooked the
significant impact the e-mail had on [defendant’s] evaluation of Foster,”
arguing: “To a layman like [defendant],
discovery of the ‘my guy’ e-mail appeared to confirm [his] belief [that Foster
was conspiring with the prosecutor to help convict him]. It reasonably seemed to [defendant] that he
had caught Foster red-handed, supplying information that helped the prosecutor
prove his case. As a practical matter,
the attorney-client relationship between Foster and [defendant] was doomed from
that point forward.” We are not
persuaded.
“The court does
not abuse its discretion in denying a Marsden
motion ‘“unless the defendant has shown that a failure to replace counsel would
substantially impair the defendant’s right to assistance of counsel.”’ [Citations.]
Substantial impairment of the right to counsel can occur when the
appointed counsel is providing inadequate representation or when ‘the defendant
and the attorney have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result [citation].’ [Citations.]”
(People v. Clark (2011) 52
Cal.4th 856, 912.) However, “‘[a] trial
court is not required to conclude that an irreconcilable
conflict exists if the defendant has not made a sustained good faith effort to
work out any disagreements with counsel . . . .’ [Citation.]”
(Id. at p. 913;
860, overruled on other grounds in People
v. Crayton (2002) 28 Cal.4th 346, 364-365.)
Here, defendant
initially claimed not to trust Foster because of purported lies Foster told him
concerning the civil suit defendant wanted to file against the arresting officers. The trial court appropriately denied
defendant’s Marsden motion on this
ground, accepting Foster’s assurance that he never lied to defendant. During the second Marsden hearing, defendant claimed not to trust Foster because
Foster advised him to “lay down and accept whatever the Prosecution is going to
do in this case.” Foster denied telling
defendant to “lay down,” but admitted that there were disagreements over the
legal advice he provided, i.e., because there was “pretty clear evidence” of
robbery and kidnapping, the “best viable defense” was to try to convince the
jury that he did not kidnap Freitas for purposes of robbery. However, such disagreements over trial
strategy do not “‘constitute an “irreconcilable conflict”’” unless they portend
a complete breakdown in the attorney-client relationship. (People
v. Clark, supra, 52 Cal.4th at p.
912; see People v. Freeman (1994) 8
Cal.4th 450, 481 [defendant’s distrust of counsel who suggested he plead guilty
did not state an adequate basis for substitution of counsel].) The trial court did not abuse its discretion
in accepting Foster’s assurance that such a complete breakdown had not
occurred. Nor did the trial court abuse
its discretion in rejecting defendant’s claims that Foster was assigned to the
case in order to “set [him] up” and was “feeding” the prosecution “defense
secrets.” Defendant presented no
evidence to support these allegations.
Following the
denial of defendant’s second Marsden
motion, defendant refused to speak to Foster.
During the third Marsden
hearing, the trial court again accepted Foster’s assurance that he had “no
legal conflict” and “no level of prejudice against [defendant] that would make
it difficult or impossible for [Foster] to perform [his] duties in
[defendant’s] defense.” This too was an
appropriate exercise of the trial court’s discretion. While it is clear that defendant did not
trust Foster, the trial court reasonably could have concluded that defendant’s
refusal to speak to Foster prevented Foster from “demonstrat[ing] he was worthy
of defendant’s trust.” (
1044, 1086; People v. Crandell,
Nor was the trial
court required to find that defendant’s discovery of the “my guy” e-mail
created an irreconcilable conflict between defendant and Foster. Foster explained that the phrase “my guy” was
not intended to be taken as an admission that defendant was actually the one
depicted in the in-car camera footage.
The trial court explained to defendant that the statement was not an
admission. Indeed, in response to
Foster’s question concerning the portion of the video “where my guy flees on
foot,” i.e., where defendant was alleged to have fled on foot, the prosecutor
admitted that the video quality was “not good enough for a definitive ID.” Thus, the prosecutor did not take Foster’s
statement to be an admission concerning defendant’s identity as the man
depicted in the video. Defendant’s
refusal to accept Foster’s reasonable explanation for the use of the phrase “my
guy” cannot serve as the basis for requiring substitution. (See People
v. Smith (1993) 6 Cal.4th 684, 696 [a defendant cannot compel a
substitution of counsel by his or her own conduct that manufactures
a conflict].) This is especially true in
this case, where defendant steadfastly refused to cooperate with Foster,
“cursed [him] out on several occasions,” attempted to remove him five separate
times, and ultimately refused to even speak to Foster. (See People
v. Clark, supra, 52 Cal.4th at p.
913 [“defendant’s proclamation during an angry tirade that he did not want
‘these bitches’ for his attorneys strongly suggests that any breakdown in his
relationship with counsel was attributable to his own attitude and refusal to
cooperate”].)
We also reject
defendant’s contention that the trial court improperly relied on Foster’s
reputation in the legal community and its own confidence in Foster’s
professional skill. The denial of a
the court’s “confidence in the current attorney and observations of that
attorney’s previous demonstrations of courtroom skill. [Citations.]
Instead, the court must inquire on the record into the bases of
defendant’s complaints and afford him [or her] an opportunity to relate
specific instances of his [or her] attorney’s asserted inadequacy.” (People
v. Hill (1983) 148 Cal.App.3d 744, 753; Marsden,
supra, 2 Cal.3d at p. 124 [“a
judge who denies a motion for substitution of attorneys solely on the basis of
his [or
her] courtroom observations, despite a defendant’s offer to relate
specific instances of misconduct, abuses the exercise of his [or her]
discretion to determine the competency of the attorney”].)
Here, the trial
court fully inquired into defendant’s complaints regarding Foster. While the trial court advised defendant that
he was “extremely lucky” to have Foster as his attorney, pointed out Foster’s
“extensive experience” as a criminal defense attorney, and commented that
Foster was “doing a very good job” and had represented defendant “strenuously,”
these statements do not establish that the trial court relied solely on its
confidence in Foster and on observations of Foster’s courtroom skill in denying
defendant’s Marsden motions. We find no abuse of discretion.
In sum, the trial
court made an a
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