P. v. Lewis
Filed 3/29/13 P. v. Lewis CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JODY LEWIS,
Defendant and Appellant.
D061126
(Super. Ct.
No. SCD234467)
APPEAL from
a judgment of the Superior Court
of
County, Amalia L. Meza, Judge.
Affirmed.
Following a
mistrial due to a deadlocked jury, a jury convicted Jody Lewis of assault with
a deadly weapon and with force likely to produce great bodily
245, subd. (a)(1); 1192.7, subd. (c)(8)).
The jury also found Lewis personally:
(1) used a deadly weapon (a knife) (§ 1192.7, subd. (c)(23)) and (2)
inflicted great bodily injury (§ 12022.7, subd. (a)).
The court
sentenced Lewis to prison for six years.
Lewis
appeals, contending the court erred in denying his multiple
motions, failing to adequately explore Lewis's request to represent himself,
and failing to provide an instruction that the jury was to view with caution
Lewis's out-of-court statements. We
affirm.
FACTS
On May 23, 2011, a group of homeless people were camping
under the bridge at Mission Bay. Justice Everett was part of the group. He was drunk, yelling and cursing. Lewis told him to quiet down, but Everett
persisted. Lewis then approached Everett
and pushed him down. Lewis walked back
to his camping spot. Everett
continued to yell and call Lewis names.
Lewis approached Everett
again. A woman named Wendy
Lane stepped between the two in an attempt to quell
the argument. Lewis pushed her aside and
then Everett did the same. Lane retreated back to her area and Lewis
ultimately went back to his spot.
Ron Heinze
approached Lewis and commented:
"What's between you is between you guys. But, Jody, don't put hands on a
woman." Lewis then said to
Heinze: "I'll kick your
ass." In response, Heinze went to
his belongings, put his shoes on, and then said to Lewis: "Okay.
Come on. You want to kick my
ass? You know, do it." Lewis responded: "Well, come on, fat boy. I'll let the air out of you. I'll gut you." Heinze grabbed a handful of rocks and began
throwing them at Lewis. Lewis ran toward
Heinze, and then veered away and stabbed Everett
in the left side of his torso. Lewis
then said to Heinze: "Come on, fat
boy. Come over here where there's no
witnesses."
Everett
did not at first realize he had been stabbed until Heinze told Everett
that he had been stabbed. Lewis walked
to his belongings, picked up a bundle, and walked his bike away from the
area. A few minutes later police
officers stopped Lewis. An officer
called out and asked Lewis for his name.
Lewis said his name was Joe. The
officer then asked: "Is it
Jody?" And Lewis responded,
"Yes." The officers found two
pocket knives on Lewis and a box cutter knife in a bag attached to the bike.
When an
officer examined Lewis, he had a 1/8-inch cut on the webbing between his right
ring and pinkie fingers. There appeared
to be a blood stain between his left middle finger at the middle knuckle and on
his left ring finger. Another small cut
was on his left hand, close to the webbing between his ring and pinkie
fingers.
Everett
required emergency surgery for the stab wound.
His spleen was removed because it could not be repaired, and a large
amount of blood was removed from his chest cavity. He also suffered a lacerated diaphragm. He had 25 staples in his side, and remained
in the hospital for 10 days.
Everett's
blood alcohol level when he first arrived at the hospital was .18. Initially, he was belligerent but later
became pleasant and cooperative with hospital staff as time passed.
Several
days later, one of the people who was present at the stabbing went back to the
scene of the crime to clean up the area and found a knife among Lewis's
belongings. There was blood on it. He
wiped off the handle he had touched, put it in a plastic bag, and labeled it
for the case detective. He gave the
knife to a police officer in the area. A
DNA test on the blade revealed the blood was Everett's.
Lewis
testified on his own behalf. He
testified that he and Heinze did not like each other, and Lewis had had
problems with Everett in the past.
Everett was a drunk and a drug addict.
The night of the stabbing, Everett was loud, banging on pots and
pans. Lewis asked Everett to stop the
banging. In response, Everett continued
to be loud, and called Lewis several derogatory names. Lewis then approached Everett and asked him
to be quiet. Everett took a swing at
Lewis. So Lewis threw Everett on the
ground and pinned him. After Everett
agreed to stop being loud, Lewis let him up.
But when Lewis went back to his spot, Everett started up again.
Lewis again
approached Everett, who acted like he wanted to fight. Lewis asked Everett to stop the noise. Lane then tried to intervene. At one point, Lane walked into Lewis, which
he asserted was an accident, and Lane said:
"Don't push me." This
time, when Lewis returned to his area, Heinze approached and told Lewis not to
put his hands on a woman. Lewis denied
doing so and denied he told Heinze he would kick his ass. Heinze responded that he would fight Lewis
and put on his shoes. At that point,
Lewis decided to sleep somewhere else.
As Lewis
gathered his belongings, Heinze began throwing rocks at him. When Lewis saw Everett was about to throw a
rock, Lewis ran and pushed him down.
Everett fell on a pile of kitchen utensils. Lewis did not stab Everett. Lewis then gathered his sleeping bag and bike
and walked away to sleep elsewhere. He
had no idea Everett was injured. When
the police stopped him, he answered that his name was Jody.
DISCUSSION
Lewis
raises three issues on appeal. First, he
argues the court abused its discretion in denying his three
to explore his comment that he would prefer to represent himself. Finally, Lewis maintains the trial court
erred when it failed instruct the jury under CALCRIM No. 358 that it was to
view with caution Lewis's out-of-court statements, and he was prejudiced by the
lack of this instruction. We reject
these contentions.
I
Lewis
contends the trial court abused its discretion and violated his
assistance of counsel when it denied his Marsden
motions. We disagree.
A. Lewis's Marsden
Motions
On
September 21, 2011, a week after the first trial mistrial, and more than a
month before the second trial began, Lewis made a Marsden motion for new counsel.
The court asked Lewis to provide specific examples as to why he felt his
counsel was not providing effective assistance.
Lewis responded that counsel had never established Lewis's
"credibility as a witness."
Lewis stated the witness testimony
was contradictory and that his counsel had not established that Lewis did not
commit the crime. When the court pressed
Lewis for examples, Lewis responded that the witnesses lied, the court allowed
"manufactured evidence," he was not happy with counsel's performance,
and the trial was not fair. The court
observed that at the first trial counsel had objected to admission of the
knife, but Lewis responded that his counsel had not objected strenuously
enough. Lewis again stated the witnesses
were lying. Lewis's counsel then
summarized his 13 years of experience, including 100 jury trials as a criminal
defense attorney, and stated he had been appointed to the case approximately
one week after appellant's arrest.
Lewis's counsel had visited Lewis numerous times and had video
conferences with Lewis about the case.
Lewis's counsel had interviewed witnesses, visited the crime scene, took
photos, and had spent approximately 100 hours on the case. Lewis's counsel stated he thought he had
pointed out the witness discrepancies, and he had objected to admission of the
knife. He felt he could provide Lewis
with effective assistance of counsel.
Lewis responded that his counsel had only visited him twice, they had a
short time together, and his counsel did not have paperwork with him for the
video conference. The court denied the
motion.
On October
25, 2011, Lewis made another Marsden
motion. Lewis stated he was not happy
with his counsel's representation and wanted "another attorney. That's all there is to it." The court responded that Lewis did not have
the right to counsel of his choice. The
court asked Lewis to articulate his counsel's failings. Lewis stated his counsel had not questioned
the witnesses properly. Lewis also said
that his counsel had not discussed the case sufficiently with him. Lewis complained his counsel had not visited
him since the last trial.
Lewis's
counsel responded by stating he had visited Lewis numerous times and understood
his version of the incident. They had
gone over his trial testimony, potential cross-examination for evidence
presented at trial, and Lewis's counsel had visited Lewis to prepare until the
day of trial. Lewis's counsel reiterated
his years of criminal experience. He
admitted he had not visited Lewis since the mistrial was declared because he
already had been through a trial and the defenses and evidence to be presented
at trial were well known both to him and Lewis.
There was no reason to discuss the possibility of a plea, because Lewis
had been adamant about his version of the incident from the very beginning and
Lewis had stated in no uncertain terms he would not settle the case. The court again denied the motion.
On November
1, 2011, Lewis made a third Marsden
motion. The court again told Lewis that
he did not have the right to counsel of his choice. Lewis's counsel pointed out that the standard
was whether counsel could provide effective assistance and whether there was
such a breakdown in communication, counsel could not be effective. Lewis stated there was no communication with
counsel about the discovery and they had never worked on the witness
statements. The court asked if Lewis's
counsel could do it at that time and Lewis responded there was too much
discovery to do so in the time available.
Lewis stated he had underlined everything in the discovery he wanted to
go over with counsel but that it had not done "any good on the first trial. So I don't see why it would make any difference
now."
Lewis's
counsel responded that he had visited Lewis numerous times before the first
trial and he felt he had a "strong sense of the issues, his statements,
his testifying . . . ." Lewis's counsel explained: "[T]he issue with . . . [Lewis]
and [me] has always been in terms of how he wants to proceed with this case,
and there's always been a lack of understanding in that manner." Lewis's counsel added that in light of the
first trial, the defense was locked into a certain defense theory. The court asked Lewis's counsel if there was
such a breakdown in communication, it was impossible to represent Lewis. Lewis's counsel responded: "Yes." Lewis's counsel explained he and Lewis were
"not on speaking terms" and explained that if Lewis felt "uncomfortable,"
he should have different counsel. The
court responded that it had no intention of removing counsel simply because
Lewis was not comfortable. Lewis's counsel
stated Lewis did not trust him. The
court observed that was not the standard.
The court pointed out that Lewis's counsel was an experienced attorney
and simply because Lewis manifested a "defiant attitude" and wanted
the case to proceed in a different direction, that was no reason to replace
counsel. Lewis's counsel reiterated he and
Lewis were not communicating. The court
responded that "just because [Lewis] is not communicating with you, it's
not going to result in getting you off the case. I want him to communicate with
you." Lewis responded: "Well,
I'm not going to, Your Honor. . . . He had his chance. He didn't do anything the first time. . . .
Why should he get another chance?"
The court stated that it was not going to replace counsel; the showing
was insufficient. Lewis retorted: "I'd prefer to defend myself if I have to." The court responded that would be another
question, but that counsel was a very good lawyer, he had done his best to
represent Lewis, and "you need to work with him."
The court
stated that it was going to give Lewis and counsel some time to talk. Lewis
responded: "I refuse. I'm not working with him. I refuse." The court directed the two to talk. Lewis reiterated it would take hours to go
over the discovery. Lewis's counsel
again asked the court to relieve him of representing Lewis. The court responded that the standard had not
been met because any defendant could assert they refuse to talk to their
attorney to force replacement of counsel.
Lewis interrupted: "I should
be within my rights. That's within my
rights." The court continued, explaining
a defendant could continue to knock out attorneys until they get the attorney
they want. The court gave the two 45
minutes to go over the first trial transcripts.
The court stated they could get started and then "we'll see where
we go." The court denied the
motion. When court resumed, Lewis's
counsel stated: "[B]ased on further
conversations with [Lewis], I think we're ready to proceed, your Honor."
B. Law and Analysis
A trial
court has broad discretion to grant or deny a motion. When the court denies a Marsden motion, we review the denial under an abuse of discretion
standard. A denial is not an abuse of
discretion unless the defendant shows the failure to replace the appointed
attorney would " 'substantially impair' " the defendant's
right to competent counsel. (
1044, 1085.) A trial court's
discretionary decision will not be disturbed on appeal if there exists a
reasonable or even fairly debatable justification under the law for the action
taken. (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.) Consequently, we will interfere with the
trial court's exercise of discretion only when we conclude that under all the
circumstances, viewed most favorably in support of the trial court's action, no
judge could have reasonably reached the challenged result. (Smith
v. Smith (1969) 1 Cal.App.3d 952, 958.)
Under
article I, section 15 of the California Constitution, a defendant in a criminal
case has a right to competent assistance of counsel. (People
v. Ledesma (1987) 43 Cal.3d 171, 215.)
The right to competent assistance of counsel extends beyond trial and
into the plea bargaining process. (
58-59.)
Under the
that appointed counsel is not providing competent representation or that there
is an irreconcilable conflict such that ineffective representation is likely to
result. (People v. Dickey (2005) 35 Cal.4th 884, 917 (Dickey).) However, "a
defendant does not have the right to appoint new counsel absent a clear showing
of inadequate representation." (
622.) The trial court must permit the
defendant to explain the basis of his contention and to relate specific
instances of the attorney's inadequate performance. (Marsden,
supra, 2 Cal.3d 118, 124.) A trial
court may not deny a request for substitution of attorneys without giving the
defendant the opportunity to explain his reasons through presentation of
held was that a defendant is denied a fair trial when the trial court refuses
to hear enumerated specific examples of inadequate representation." (People
v. Huffman (1977) 71 Cal.App.3d 63, 77.)
When the defendant is afforded an opportunity to state the reasons for
discharging an appointed attorney, the trial court's decision to allow a
substitution of attorney is discretionary unless the defendant has shown that
failure to order substitution is likely to result in constitutionally
inadequate representation.
Here, the
trial court was within its discretion in concluding that Lewis did not make a
showing sufficient to justify the discharge of his appointed counsel. The court held three hearings in response to
Lewis's three requests under Marsden
for new counsel. Ultimately, the record
reveals Lewis was simply unhappy with his counsel because of a disagreement
over trial strategy and how his counsel conducted the first trial. Disagreements over trial strategy, however,
do not " ' "constitute an 'irreconcilable
conflict' " ' unless they portend a complete breakdown in the
attorney-client relationship." (
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].)
Trial
counsel is the person responsible for making all but a few of the tactical
trial decisions. (People v. Carpenter (1997) 15 Cal.4th 312, 376.) The fact that the defendant does not wish to
follow counsel's advice or chooses not to listen to counsel does not require
the trial court to replace counsel. (
606; People v. Clark,
Because he
was unhappy with his counsel, Lewis refused to talk to him. Although the record indicates Lewis did not
trust or want his assigned counsel to represent him due to differences of
opinion regarding trial strategy, the trial court reasonably concluded that
Lewis's refusal to talk to his counsel prevented his counsel from
"demonstrat[ing] he was worthy of defendant's trust." (People
v. Barnett (1998) 17 Cal.4th 1044, 1086; People v. Crandell (1988) 46 Cal.3d 833, 860.) The trial court wanted Lewis and his counsel
to communicate. Lewis refused to speak
to his counsel, which resulted in his counsel opining there was an
substitution of counsel by his own conduct that creates a conflict. (See People
v. Smith (1993) 6 Cal.4th 684, 696.)
We are
satisfied that the trial court made an adequate inquiry into Lewis's complaints
concerning his appointed counsel and did not abuse its discretion in denying Lewis's
Marsden motions. We agree with the trial court that Lewis and
his attorney simply had a disagreement over trial strategy and then Lewis tried
to manufacture an irreconcilable conflict by refusing to speak to his attorney. The court did not abuse its discretion.
II
HIMSELF
Lewis also
contends the court erred in failing to explore his conditional request to
represent himself. We determine this
contention is without merit.
A defendant
has a federal constitutional right to
represent himself under the Sixth and Fourteenth Amendments. (Faretta
v. California (1975) 422 U.S. 806, 807 (Faretta);
People v. Burton (1989) 48 Cal.3d
843, 852.) "To invoke the
constitutional right to self-representation, a criminal defendant must make an
unequivocal assertion of that right in a timely manner." (People
v. Barnett (1998) 17 Cal.4th 1044, 1087, italics omitted; see also
1229, 1365.) When an unequivocal motion
for self-representation is timely made, the trial court must permit the
defendant to represent himself after ascertaining he has voluntarily and
intelligently elected to do so, irrespective of how unwise the choice appears
to be. (People v. Windham (1977) 19 Cal.3d 121, 128, citing
v. Marshall (1997) 15 Cal.4th 1, 20-27 (Marshall).)
To assess a
Faretta claim, we review the entire
record de novo to determine whether the defendant's invocation of the right to
self-representation was knowing and voluntary.
(Marshall,
court's determination that defendant's request was equivocal is not clear. (Ibid.) However, we conclude that under either de
novo review or a more deferential standard, the court properly rejected what
could only be characterized, at best, as an equivocal motion for
self-representation. (
Here,
during the hearing on his third Marsden
motion, Lewis stated: "I'd prefer
to defend myself if I have to."
Lewis's statement was conditional, and at most, was an equivocal request
to represent himself. Lewis's statement
raises the possibility that he wanted to represent himself if necessary. Considering the context in which he made the
statement, it appears plausible that Lewis might have wanted to represent
himself if the court did not appoint new counsel. However, his subsequent conduct belies this
argument.
The court
denied Lewis's third Marsden
motion. At that point, Lewis did not say
he wanted to represent himself although it was clear the court was not going to
appoint new counsel. In addition, the
court gave Lewis and his counsel 45 minutes to meet and discuss the upcoming
trial. When court resumed, Lewis's
counsel stated: "[B]ased on further
conversations with [Lewis], I think we're ready to proceed, Your
Honor." There is no indication in
the record that Lewis disagreed with his counsel's representation or stated
that he wanted to represent himself at that point. Under these circumstances, the court had no
duty to follow up on Lewis's comment.
(See Marshall,
["Because the court should draw every reasonable inference against waiver
of the right to counsel, the defendant's conduct or words reflecting
ambivalence about self-representation may support the court's decision to deny
the defendant's motion."].) Lewis
failed to make an unequivocal request to represent himself although it was
clear the court was not going to appoint new counsel. There was no error.
III
Lewis next
complains that the trial court prejudicially erred in failing to sua sponte
instruct the jury under CALCRIM No. 358 on his out-of-court statements because
"a lot of focus at the second trial and in closing argument" was on
Lewis's statements. The People
essentially concede the court erred in failing to instruct on CALCRIM No. 358,
but assert the error was harmless on this record. We agree.
The
relevant version of CALCRIM No. 358 (Evidence of Defendant's Statements),
provides:
"You have heard evidence that the defendant made
[an] oral or written statement[s] (before the trial/while the court was not in
session). You must decide whether or not
the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such
[a] statement[s], consider the statement[s], along with all the other evidence,
in reaching your verdict. It is up to
you to decide how much importance to give to such [a] statement[s]. [¶] [Consider with caution any statement made by
(the/a) defendant tending to show (his/her) guilt unless the statement was
written or otherwise recorded.]"
A trial
court has a sua sponte duty to instruct the jury to view evidence of a
defendant's oral admissions with caution.
(People v. Carpenter, supra, 15
Cal.4th at p. 392.) The purpose of
a cautionary instruction is to assist the jury in determining if a statement
was in fact made. (Id. at p. 393.) A cautionary
instruction only applies to a defendant's inculpatory statements. (People
v. Slaughter (2002) 27 Cal.4th 1187, 1200.)
"Since the cautionary instruction is intended to help the jury to
determine whether the statement attributed to the defendant was in fact made,
courts examining the prejudice in failing to give the instruction examine the
record to see if there was any conflict in the evidence about the exact words
used, their meaning, or whether the admissions were repeated
accurately." (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.)
Instructional
error involves state law and is reviewed under the People v. Watson (1956) 46 Cal.2d 818 harmless error standard. (See Dickey,
supra, 35 Cal.4th at p. 905.) A " 'miscarriage of justice' should
be declared only when the court, 'after an examination of the entire cause,
including the evidence,' is of the 'opinion' that it is reasonably probable
that a result more favorable to the appealing party would have been reached in
the absence of the error." (
probabilities rather than upon mere possibilities." (Id.
at p. 837.) Further, challenged
instructions may not be judged in artificial isolation, but must be considered
in the context of the instructions as a whole and the trial record. (People
v. Tuggles (2009) 179 Cal.App.4th 339, 365.)
Here, Lewis
argues that the court's failure to sua sponte instruct the jury on CALCRIM No.
358 was prejudicial because both of Lewis's out-of-court statements were
critical to the prosecution's case. The
first statement consisted of Heinze testifying that as Lewis ran down the hill
toward him, Lewis said something to the effect of "I'll let the air out of
you. I will gut you." Lewis maintains this statement "was the
central issue before the jury."
The second
statement involved an officer's testimony that Lewis first identified himself
as Joe, before he admitted he was Jody.
Lewis contends this statement bears on his credibility. He also notes that the prosecutor referred to
both these statements during closing argument.
Although we
agree with Lewis that the prosecutor mentioned both his out-of-court statements
during closing argument and both statements were helpful to the prosecution's
case, Lewis ignores the voluminous evidence supporting the guilty verdict. Several percipient witnesses testified, and
none of them testified to anything that supported Lewis's version of
events. And as noted by the prosecutor
during closing, Lewis's version of events was extremely weak as it required the
jury to believe that the victim fell onto kitchen utensils, which then plunged
into his spleen. Lewis's version also
required the jury to disbelieve all of the prosecution's percipient witnesses.
In
addition, there was no lack of thorough cross-examination to assist the jury in
evaluating the prosecution witnesses.
For example, Lewis's counsel thoroughly cross-examined Lane about the
fact that Heinze hated Lewis, and that Heinze and another prosecution witness
had tried to influence her view of what occurred. But she also testified the efforts did not
work and that the two had not been pleased that Lane spoke to the police at
all, and that they had wished aloud that Lewis were not in custody so that they
could take care of him themselves. As a
whole, the evidence was very strong.
Further, the jury only needed to deliberate for one hour before it
returned a guilty verdict, which reflected the straightforward strength of the
prosecution case.
Moreover,
other instructions told the jurors how to evaluate the accuracy and credibility
of the witnesses' testimony at trial (CALCRIM No. 226) as well as how to
evaluate the prior statements of a witness (CALCRIM No. 318). This latter instruction specifically told the
jury: "You have heard evidence of
[a] statement[s] that a witness made before the trial. If you decide that the witness made
(that/those) statement[s], you may use (that/those) statements in two
ways: [¶] 1. To evaluate whether the witness's testimony
in court is believable; AND [¶] 2. As evidence
that the information in (that/those) earlier statement[s] is true." (CALCRIM No. 318.) These instructions, coupled with the
instructions on the elements of assault with a deadly weapon (CALCRIM No. 875)
and the reasonable doubt standard (CALCRIM No. 220), adequately alerted the
jury to carefully review the testimony of the witnesses. Thus, we conclude that there is no reasonable
probability the jury would have reached a different result had the trial court instructed
the jury on CALCRIM No. 358.
In sum, we
believe any error in the court's failure to give CALCRIM No. 358 was harmless
because, on this record, it is not reasonably probable that a more favorable
result would have occurred had the court given such instruction. (Dickey,
supra, 35 Cal.4th at p. 905.)
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE,
Acting P. J.
McDONALD,
J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code unless otherwise
specified.
name="_ftn2" title="">[2] People v. Marsden
(1970) 2 Cal.3d 118 (Marsden).
