Filed 5/29/13 P. v. Scroggins CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LEONARD EARL SCROGGINS, JR.,
Defendant and Appellant.
D061289
(Super. Ct.
No. SCS238857)
APPEAL from
a judgment of the Superior Court
of
County, George W. Clarke, Judge. Affirmed as modified.
Susan K.
Shaler, 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, Peter Quon, Jr., and Christopher
P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury
convicted Leonard Earl Scroggins, Jr., of a committing a forcible lewd act on a
child (Pen. Code, § 288, subd. (b)(1);
count 1), attempted kidnapping for purposes of committing a lewd act on a child
(§§ 209, subd. (b)(1), 664; count 2), assault with a knife (§§ 245, subd.
(a)(1), 1192.7, subd. (c)(23); count 3), robbery (§ 211; count 4), kidnapping
for robbery (§ 209, subd. (b)(1); count 5) and two counts of attempted robbery
(§§ 211, 664; counts 6 and 7). As to
counts 1, 2, 5 and 6, the jury found true allegations Scroggins used a knife in
the commission of the crimes (§ 12022, subd. (b)(1)). As to counts 5 and 6, the jury also found
true allegations Scroggins inflicted great bodily injury (§ 12022.7, subd.
(a)). Scroggins additionally admitted
having two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two
prior serious felony convictions (§ 667, subd. (a)(1)), two prior prison
commitment convictions (§ 667.5, subd. (b)), and a prior sex crime conviction
(§§ 667.61, subds. (a), (c) & (d), 667.71, subd. (a). The trial court sentenced Scroggins to an
indeterminate sentence of 150 years to life plus a determinate sentence of 45
years.
Scroggins
appeals, contending: (1) the trial court
erroneously denied his motion to suppress
evidence obtained in violation of Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda);
(2) the trial court failed to hold a hearing to determine whether he was
competent to stand trial; (3) the trial court erroneously denied his motion
under People v. Marsden (1970) 2
Cal.3d 118 (Marsden) for substitute
counsel; (4) there was insufficient evidence to establish the requisite lewd
intent for counts 1 and 2; (5) the jury instructions on the union of act and
intent were incomplete as to count 1; (6) the prosecutor erred during closing
argument by asserting the jury should first reach conclusions as to the greater
offenses before deliberating on the lesser included offenses; (7) his trial
counsel provided him with ineffective assistance; and (8) the cumulative effect
of these errors deprived him of due
process of law and a fair trial.
The People
concede and we agree the trial court committed prejudicial instructional error
as to count 1. We, consequently,
exercise our discretion under section 1260 to reduce the conviction in count 1
to attempted forcible lewd act with a child (§§ 288, subd. (b)(1),
664). In all other respects, we affirm
the judgment.
BACKGROUND
Prosecution's
Evidence
As
17-year-old Cynthia H. walked by Scroggins's parked van one evening on her way
home, Scroggins got out, demanded she give him her purse, and tried to grab it
from her. She backed away from him,
screamed, then turned and fled.
Robbery and Attempted Robbery
A short
time later, Scroggins went up to 44-year-old Maria Lucio-Stoltz (Stoltz) while
she was walking to work and grabbed her by the hair. She yelled as he dragged her about 40 feet to
his parked van. When they reached the
van, he opened the door and tried to lift her into it, but he hit her in the
head and she fell. He demanded money
from her and she told him she did not have any.
At some point, Stoltz seriously slashed her hand on a knife Scroggins
had with him and she started bleeding badly.
He noticed the blood, became nervous, then left her, and drove away in
his van.
The next
afternoon, as 19-year-old Maricela Barron walked past Scroggins's parked van on
her way home, he got out, grabbed her purse from behind and demanded she give
it to him. They struggled for the purse
for several seconds until Barron relented and let Scroggins take it. After getting the purse, Scroggins threw it
in his van and drove away. Barron
memorized the van's license plate number and immediately sought help.
Counts 1, 2 and 3 - Lewd Act on a Child, Attempted Kidnapping to Commit
a Lewd Act on a Child, and Assault with a Deadly Weapon
Later the
same afternoon, 13-year-old Guadalupe P. was walking home in her school uniform
carrying a backpack and a sweater. She
saw Scroggins's van parked in the middle of the driveway to her apartment
complex. He sat in the driver's seat and
stared at her. As she turned into the
driveway and passed by the van, she heard a heavy sound behind her. Then, Scroggins reached out from behind and
grabbed her. He held her left hand behind
her with one of his hands and held a knife to her neck with his other
hand. He told her to get into the van or
he would cut her. Guadalupe reached up
and felt the knife, cutting her finger.
As Scroggins tried to move her toward the van, she elbowed him. He let her go and she ran home. During the encounter, Scroggins did not try
to take her backpack nor did he demand she give it to him. He also never asked her for any money.
DISCUSSION
I
Denial of Motion
to Suppress for Miranda Violation
name="_ftnref2" title="">[2]
A
1
At some
point after his arrest, Scroggins went to a hospital for an evaluation. When he returned to the police station, two
detectives began interviewing him.
Before the interview, the detectives asked him if he was feeling better
and whether he had been given any medication.
He told them that he was feeling better, he was "alright," and
he was not taking any medication. The
detective also asked him if he wanted them to remove the handcuffs he was
wearing. He responded, "No, I'm
alright."
After first
obtaining some general background information from him, the detectives gave him
the advisements required by Miranda,
before. He also acknowledged he
understood the Miranda
advisements.
The
detectives explained they wanted to talk to him about the events preceding his
arrest and asked him whether that was okay with him. He replied, "Yeah." Scroggins told the detectives he traveled to
San Diego from northern California because he was "having problems"
and wanted to cross the border into Mexico, but he did not have a
passport.
He ran out
of money, so he snatched Barron's purse.
He took $42 dollars from it and threw away her credit cards and other
items. He then drove around and looked
for somebody else to rob.
The
detectives told him a teenage girl with a backpack (Guadalupe) reported he had
assaulted her with a knife. The
detectives asked him if he remembered her getting cut. Scroggins said he did not remember having a
knife and denied cutting anyone or having any knowledge of the incident.
The
detectives praised Scroggins for honestly telling them about what happened with
Barron and empathized with his situation.
He told them, "[T]he only reason I'm talking to you cause I usually
just plea the 5th. Because I know that
once I got pulled over, got stopped . . . I'm just getting
[a] life sentence anyway." He also
lamented not being able to "make it" outside of prison.
After again
praising Scroggins for his honesty and empathizing with his situation, the
detectives told him they wanted to clear up what happened with Guadalupe
because they believed her blood was going to be found on his clothes and his
knife. He responded, "I'm fittin',
I'm fittin' to get a life sentence already, anyway, from, from the first girl
that I told you about that, that I just told you I robbed."
They asked
him again to tell them what happened.
They also told him they knew he did not rape or kidnap Guadalupe, but
they only had her side of the story. He
replied, "No, I understand all that."
They
suggested there might have been a miscommunication between him and her and he
replied, "I mean, what miscommunication is you talking about? You said that she said that I tried to rob
her." He went on to explain he was
just trying to rob people to get across the border and then had a "break
down in [his] mind" and "just wasn't thinking."
When the
detectives asked him again if he would tell them what happened with Guadalupe,
he responded, "No, I'm not fittin' uh, not fittin' to going into
it." The detectives then asked him,
if he did not want to go into the details, whether he could at least admit he
had the knife and knew she got cut. But,
he said, "No."
The
detectives again expressed their appreciation of Scroggins's honesty about
robbing Barron. They also acknowledged
Scroggins could choose not to talk to them about Guadalupe and told him
"that's cool." However, they
knew it was her blood on his knife and his pants and they wanted to hear from
him what happened for her sake because she was 13 years old and the incident
was going to change her life forever.
nah man" and then reiterated he was just trying to rob people for money.
Switching
topics slightly, the detectives asked him if he had tried to rob anyone
else. He admitted he tried to snatch the
purses of two other women at knifepoint, but they screamed and ran away just as
Guadalupe had done. He also admitted
using a knife to rob Barron.
After
asking Scroggins for a few more details about the unsuccessful robberies, the
detectives stated they wanted "to go back to the girl with the backpack
today." Scroggins responded,
"Yeah." The detectives told
him that she could be emotionally scarred by what happened and it might help
her if he would tell them what happened and that he was sorry. They then asked him directly to tell them
what happened with her. He replied,
"Um, no."
They asked
him if he was worried and he said he was not because he was going to get a life
sentence regardless. They then asked,
"well if that's the case . . . what happened with this
girl?" Scroggins replied, "I
don't know she was thirteen, man."
They then asked if he told her to get in his car. He said he did not.
They asked
him what he did tell her and he replied, "I told you, I'm not fittin' to
talk about it." He then said,
"If you ain't got nothing else to talk about man, I'm, I'm ready to go to
jail."
They told
Scroggins they were asking the questions because they wanted to be able to go
to Guadalupe and make things right.
Scroggins replied, "I can't make it right." The detectives disputed the point, but
Scroggins insisted, "No, you can't make it right. You just got to do, you got to deal with
[the] consequences."
They
continued to impress upon him how important it was to be able to help her and
he said, "I don't know if I'm going to discuss that man." They then asked him, since he was sure he was
going to get a life sentence, why he did "not put it all out on the
table" and "take responsibility for . . . this
other thing," because the evidence was going to prove what happened. He said, "No" and repeated he was
just trying to rob people for money to cross the border and did not know
Guadalupe was 13.
They
accepted his statements and asked him again to tell them what happened and
whether she got cut. He said he did not
remember her getting cut. They then
asked him to explain the blood on him.
He told them that because of his criminal history, "it don't really
matter man." They responded,
"Then why not clear up this last one." He told them it was already cleared up¾he
was just trying to rob people for money to get across the border. He once again denied knowing anything about
the incident with Guadalupe or about her getting cut.
The
detectives told him they understood he was trying to rob people, but they
believed he did not want to tell them about the incident with Guadalupe because
he knew he cut her and he knew he tried to get her in the car. They told him they had seen his criminal
history and knew he was a rapist and a child molester. He denied ever molesting anybody and told
them, "you can think what you want to think."
The
detectives pointed out that Guadalupe was not a sophisticated teenager. She was a "little girl still." They said she told them that while he held
her, he had the knife to her throat and told her to get in the car. They told him he did not have to admit the
crime because the evidence would prove it, but it was important for people to
take responsibility for their actions.
They also told him they knew he was wanted for molesting his niece. He acknowledged, "Yeah, I know that is
why [I] broke the ankle bracelet and left."
They then
asked him why he molested his niece and he denied he did. He also denied knowing why his niece accused
him of molesting her. According to him,
she said he gave her a hug and then slapped her on the butt. The detective leading the interview then
asked, "Did you tap her butt? Was
it, did you tap her butt and it wasn't sexual but she thought it was? I mean, is that what happened? See [Scroggins], this is
where . . . the problem is, okay. When we go to talk about this stuff that's
related to sex or related to kidnapping, you don't want to talk about it. And you know what your silence tells me more
than what your mouth could." He
responded, "Yeah."
The
detectives assured Scroggins they were not going to think less of him because
of what he was being accused of doing.
Scroggins acknowledged and appreciated that they had been respectful to
him during the interview. However,
Scroggins again stated it did not matter because he knew he was getting a life
sentence. The lead interviewer again
stated, "If that's the case then let's clear this up."
After the
detectives told Scroggins "it takes a really big man" to admit he has
made mistakes and poor choices, Scroggins replied, "I'm just fucked up in
the head, man. I just wasted, I just
wasted all my life."
They asked
him one more time to tell them what happened with Guadalupe and pointed out
"it is obvious that you, you want to talk about it because you already
started going on that road and talk about it." He told them, "it ain't that I don't
want to talk about it, man, I just . . . ." He continued, "I'm a piece of shit, that
was a really shitty thing to do that, that's why. It wasn't, it wasn't necessary . . . I
just, I just acted mentally weak, that's all.
I just, I just acted, I just acted mentally weak."
They asked
him to "[t]ake us there man, tell, take us to how you're feeling, what
happened[,] what [your] experience was."
He told them, "Nah, cause that ain't, that's, that's not uh, I, I'm
not gonna do that.
¶ . . . ¶ I'm
not fittin' to do that."
They asked
him why, and he told them, "Cause like I said man, I won't, when I seen
her, man, I mean, for any reason I uh, (unin) I didn't know she was thirteen
but then again, I ain't going to lie, I knew she wasn't eighteen she got her
backpack on. I came up on her, I came up
on her with a knife. I didn't know, I
didn't know she got uh, that she got her finger cut. I didn't know all that but I mean, that's the
honest god truth, cause like I said I was standing behind her. And you know, just like I said, I just, just
a momentary, just, just a momentary, just a piece of shit-ass decision man,
when I tried to get her into the car.
And whether she believes it or not she didn't stop me I stopped myself
and that ain't trying to take no credit from her I just stopped I just said,
'just stop man, just stop man, just let her go.' I didn't chase after her, I didn't stab her,
I didn't, but I just stopped, just let her go, man. But uh, that was it, that was some piece of
shit . . . cause you right, it wasn't about, it wasn't
about no survival. It was just from some
sick, it was just sick and I was mentally weak instead of ignoring it, I was
just like well, 'fuck it my life over anyway.'
That was just . . . some shitty shit. I mean, ain't nothing I can do. You know.
I'm, I'm glad, and whether you believe this or not, that it didn't go
through. I mean. I'm, I'm glad that it wasn't successful. I'm glad that it didn't go through. I don't know what else to do, I mean, I
can't, it's nothing I can, I don't believe there's nothing I can say that I
will help her get over it, you know, so I mean, you know, I mean, of course I'm
going to say I'm sorry of course I'm going to say I'm sorry but a lot of good
that is going to do, you know what I mean."
After the
detectives praised him for taking responsibility, they offered him an
opportunity to write an apology to Guadalupe.
He declined the offer and the interview ended.
2
Before
trial, the prosecutor moved to admit Scroggins's statements to the
detectives. Scroggins, however, moved to
suppress the statements related to his actions toward Guadalupe, arguing these
statements were inadmissible because he had selectively invoked his right of
silence. The trial court granted the
prosecutor's motion and denied Scroggins's motion, finding that although
Scroggins stated several times he was "not fittin" to talk about the
incident with Guadalupe, he continued to voluntarily answer questions about the
incident and never clearly invoked his right of silence.
B
Scroggins
contends we must reverse his convictions for counts 1 and 2 because his
statements to detectives about his actions toward Guadalupe were involuntary
and the trial court's failure to suppress them violated Miranda as well as his constitutional rights to remain silent and
to due process of law. "Under
California law, issues relating to the suppression of statements made during a
custodial interrogation must be reviewed under federal constitutional
standards." (People v. Nelson (2012) 53 Cal.4th 367, 374 (Nelson).) To combat the
pressures of custodial interrogation and permit suspects a full opportunity to
exercise their privilege against self-incrimination, Miranda requires they be apprised of their rights to remain silent
and to the assistance of counsel. (
If a suspect indicates in any manner a desire to remain silent or to
consult an attorney, the interrogation must end and any statement obtained from
the suspect after that point may not be admitted in the prosecution's
case-in-chief. (Ibid.)
Nonetheless,
a suspect may waive these rights. (
must show by a preponderance of the evidence the waiver was knowing and
voluntary. (Id. at pp. 374-375.) Whether
a waiver is knowing and voluntary is assessed based on the totality of the
circumstances surrounding the interrogation.
(People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 219.) "The
waiver must be 'voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception' [citation],
and knowing in the sense that it was 'made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to
abandon it.' " (
The parties
do not dispute Scroggins knowingly and voluntarily waived his right of silence
the outset of the interview. The record
demonstrates as much. At the time of his
arrest in this case, he was 32 years old.
He had numerous prior arrests and convictions, including convictions
resulting in prison commitments. When
the detectives provided him with the requisite Miranda advisements, he acknowledged having heard them many times
before. He further indicated he
understood the Miranda advisements
and explicitly agreed to speak with the detectives. In fact, he told them he normally
"plea[ds] the 5th," but he decided to speak with them because he knew
he was facing a life sentence due to his criminal history. His candid responses to their subsequent
questions further indicated he understood the Miranda advisements and waived his rights.
The only
question is whether, after having initially waived his right of silence,
Scroggins later selectively or partially invoked it as to his actions with
Guadalupe. Whether suspects may
selectively or partially invoke their right of silence is a debatable issue in
California as neither the United States Supreme Court nor the California
Supreme Court has directly addressed it.
One California appellate court has concluded there is no right of
selective silence. (People v. Hurd (1998) 62 Cal.App.4th 1084, 1093-1094; see Note,
Silent": The Impractical Effect of
Selective Invocation of the Right to Remain Silent (2012) 38 New Eng. J. on
Crim. & Civ. Confinement 177.)
However, the Ninth Circuit disagrees.
(Hurd v. Terhune (9th Cir.
2010) 619 F.3d 1080, 1087.) We need not
decide the matter because, even if we assume suspects are constitutionally
permitted to selectively or partially invoke their right of silence, we are not
persuaded Scroggins did so in this case.
Once a
suspect waives the right to remain silent,
any subsequent assertion of the right must be articulated " 'sufficiently
clearly that a reasonable police officer in the circumstances would understand
the statement to be' " an invocation of the right. (Nelson,
supra, 53 Cal.4th at pp. 371-372,
citing Davis v. United States (1994)
512 U.S. 452, 459, & Berghuis v.
Thompkins (2010) 560 U.S. 370 [130 S.Ct. 2250, 2260].) A suspect's statement is not sufficient if a
reasonable officer would have only understood from the statement that the
suspect might be invoking the
right. (Nelson, at pp. 376-377.)
" '[I]f an ambiguous act, omission, or statement could require
police to end the interrogation, police would be required to make difficult
decisions about an accused's unclear intent and face the consequence of
suppression "if they guess wrong." ' [Citation.] In such circumstances, suppression of a
voluntary confession 'would place a significant burden on society's interest in
prosecuting criminal activity.' " (
Here,
although Scroggins declined several times to talk about his actions with
Guadalupe, he never explicitly invoked his right of silence. In addition, he freely discussed his criminal
history throughout the interview, including acknowledging he was a registered
sex offender and admitting he had purposely removed his GPS tracking device and
absconded after his niece accused him of molesting her. He also readily admitted his robbery crimes
against the other victims, including his use of a knife to threaten or scare
them.
Moreover,
when the detectives first broached the topic of his actions with Guadalupe,
Scroggins did not tell them he did not want to talk about this topic. Instead, he denied remembering or having
anything to do with this victim. A short
time later, Scroggins told the detectives he normally "plea[ds] the
5th," indicating he knew how to explicitly invoke his right of silence if
he desired. Yet, when they asked him
again to tell them what happened with Guadalupe, he did not "plead the
5th." Instead he told them he was
"fittin' to get a life sentence already, anyway," suggesting he did
not want to talk about the crime because he did not see the point.
After that,
he vacillated a few times between declining to speak about the matter to
insisting he was just trying to rob people to obtain the means to cross the
border. When the detectives subsequently
asked why he would not talk about the matter if he was not worried about what
would happen to him, he did not take that obvious opportunity to indicate he
was invoking his right of silence.
Instead he responded, "I don't know she was thirteen, man,"
suggesting he was declining to speak because of embarrassment or similar
reasons.
When the
detectives followed up by asking whether he told Guadalupe to get in his van,
he became frustrated, declined again to speak about the matter, and stated,
"If you ain't got nothing else to talk about man, I'm, I'm ready to go to
jail." California courts have held
similar expressions of momentary frustration to be insufficient to constitute
an unequivocal and unambiguous assertion of the right of silence. (People
v. Williams (2010) 49 Cal.4th 405, 433-434; People v. Jennings (1988) 46 Cal.3d 963, 977-979;
987, 1005, 1007.)
Furthermore,
Scroggins continued to voluntarily respond to the detectives' questions,
telling them he could not make things right for Guadalupe and he did not know
she was 13. He then flip-flopped between
stating he did not know whether he was going to discuss the matter, to
declining to discuss the manner, to insisting he was just trying to rob people,
to opining it did not matter what he said, and back to insisting he was just
trying to rob people. At no time did he
state he wanted to "plead the 5th" or otherwise explicitly exercise
his right of silence. He also did not
ask the detectives to stop questioning him about Guadalupe nor did he stop
responding to their questions about her.
Then, after
the detectives told him they knew all about his criminal history, knew all
about his niece's accusations, and did not think any less of him, he indicated
he was not declining to talk about his actions toward Guadalupe because he did
not want to talk about them. Rather, he
was declining to talk about them because he was ashamed and there was nothing
he could say to help her get over the incident.
Given this acknowledgment and the totality of circumstances leading up
to it, we cannot conclude Scroggins unequivocally and unambiguously invoked his
right of silence during the interview, whether selectively or otherwise.
We also
cannot conclude Scroggins's statements about his actions with Guadalupe were
involuntary or coerced. Generally, the
law presumes "that an individual who, with a full understanding of his or
her rights, acts in a manner inconsistent with their exercise has made a
deliberate choice to relinquish the protection those rights afford." (Berghuis
v. Thompkins, supra, 130 S.Ct.
2250, 2262.)
Additionally,
the record shows the detectives did not promise Scroggins leniency or threaten
him in anyway. Although he was
handcuffed during the interview, the detectives offered to remove them at the
outset of the interview and he declined the offer. He also acknowledged during the interview
that the detectives had treated him respectfully and expressed his appreciation
for their treatment. While the detectives
encouraged him to discuss what happened with Guadalupe for her sake and his own
sake, such tactics, when unaccompanied by either a threat or a promise, do not
make a subsequent confession involuntary.
(People v. Gonzalez (2012) 210
Cal.App.4th 875, 882-883.) Accordingly,
we cannot conclude the trial court's admission of Scroggins's statements
violated Miranda or Scroggins's
rights of silence and to due process of law.
II
Failure to
Conduct Competency Hearing
A
Before the
preliminary hearing, Scroggins requested to substitute counsel under
representing him and there was an irreconcilable conflict between them. In explaining these points, Scroggins told
the trial court he had been diagnosed with "schizophrenic bipolar,"
had a lengthy history of mental health problems and treatment, and had
requested his counsel obtain his mental health records from a prior prison
commitment. He also told the trial court
he heard voices and, consequently, took psychotropic medication. Although he acknowledged the medication
generally worked fine, he claimed he started hearing voices again whenever he
got into "a spat" with his counsel.
He argued he could not have a workable attorney-client relationship if
he kept hearing voices telling him to spit on or attack his counsel.
would experience the same problem with another attorney.
B
Based on
his revelations about his mental health during the Marsden hearing, Scroggins contends we must reverse his convictions
because the trial court failed to declare a doubt about his competency to stand
trial and order a competency evaluation.
" 'Both the due process clause of the
Constitution and state law prohibit the state from trying or convicting a
criminal defendant while he or she is
A defendant is incompetent to stand trial if he or she lacks a "
'sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding—[or lacks] . . . a rational as
well as a factual understanding of the proceedings against him.' " [Citations.]
"
'Both federal due process and state law require a trial judge to suspend trial
proceedings and conduct a competency hearing whenever the court is presented
with substantial evidence of incompetence, that is, evidence that raises a reasonable
or bona fide doubt concerning the defendant's competence to
. . . Evidence of incompetence may emanate from several
sources, including the defendant's demeanor, irrational behavior, and prior
mental evaluations. [Citations.]' [Citation.]
But to be entitled to a competency hearing, 'a defendant must exhibit more
than bizarre . . . behavior, strange words, or a
preexisting psychiatric condition that has little bearing on the question of
whether the defendant can assist his defense counsel. [Citations.]'
[Citation.]
" 'A
trial court's decision whether or not to hold a competence hearing is entitled
to deference, because the court has the opportunity to observe the defendant
during trial. [Citations.] The failure to declare a doubt and conduct a
hearing when there is substantial evidence of incompetence, however, requires
reversal of the judgment of conviction.' "
(People v. Lewis (2008) 43
Cal.4th 415, 524-525.)
In this
case, Scroggins's remarks about his mental health tell an incomplete
story. The transcript of the
focused and lucid throughout, a conclusion supported by Scroggins's
acknowledgment his medication was generally "working fine." In addition, at the time of the hearing,
Scroggins was in the midst of a paralegal course and had done his own legal
research in preparation for the hearing.
He presented his various points articulately and intelligently, which
both his counsel and the trial court remarked upon favorably. In presenting his points, he accurately
discussed the two most serious charges against him, what the most likely
defense to those charges was, and what case law supported the defense. He also accurately discussed the most likely
avenue of attempting to suppress the statements he made to police
detectives. It is readily apparent from
the totality of his remarks that, notwithstanding any prior or ongoing mental
health issues, he fully understood the nature of the legal proceedings against
him and was more than capable of assisting his counsel in a rational
manner. He, therefore, has not
established his revelations about his mental health during the hearing required
the trial court to order a competency exam.
III
Denial of Marsden
Motion
A
After
hearing from Scroggins, then from defense counsel, and then from Scroggins
again, the trial court denied the Marsden
motion. The trial court found that,
while there had been a few communication glitches between Scroggins and defense
counsel, they did not warrant defense counsel's replacement. In addition, the trial court found defense
counsel had properly represented him and would continue to do so. Finally, the trial court found Scroggins's
concerns about hearing voices was not an appropriate ground for replacing
counsel because the trial court was not convinced the problem would not recur
with new counsel.
B
Scroggins
contends we must reverse his convictions because the trial court erred by
failing to grant his Marsden motion
after learning he was hearing voices telling him to spit on or attack defense
counsel. More particularly, he contends
this manifestation of his mental health issues presented an irreconcilable
conflict between him and his counsel.
" ' "When
a defendant seeks to discharge his appointed counsel and substitute another
attorney, and asserts inadequate representation, 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. [Citation.]
A defendant is entitled to relief if the record clearly shows that the
first appointed attorney is not providing adequate representation [citation] or
that defendant and counsel have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result." ' [Citation.]
The decision whether to grant a requested substitution is within the
discretion of the trial court; appellate courts will not find an abuse of that
discretion unless the failure to remove appointed counsel and appoint
replacement counsel would 'substantially impair' the defendant's right to
effective assistance of counsel." ' "
(People v. Vines (2011) 51
Cal.4th 830, 878, superseded by statute on another point as recognized in
Cal.App.4th 965,981.)
Although
Scroggins stated he heard voices telling him to spit on or attack his counsel
whenever they had a spat, nothing in the record indicates spats predominated
the relationship or that Scroggins ever acted on the voices. In addition, when the trial court gave
defense counsel an opportunity to respond to Scroggins's concerns, she never
expressed any apprehension in continuing to represent him because of his mental
health issues. Moreover, there is no
indication in the record Scroggins's mental health issues impaired her
representation of him. While defense
counsel admitted having one miscommunication with Scroggins over whether he
wanted to go to trial, the miscommunication was semantical and had nothing to
do with his mental health issues.
Further, as discussed ante,
the transcript of the Marsden hearing
showed Scroggins had no difficulty conveying and defense counsel had no
difficulty understanding Scroggins's desired strategies to defend the
case. Defense counsel also expressed a
willingness to pursue these strategies at the appropriate junctures in the
case. Thus, even if Scroggins's mental
health issues presented a conflict, the record does not show they presented an
cannot conclude the trial court abused its discretion in denying Scroggins's
IV
Insufficient
Evidence of Lewd Intent for Counts 1 and 2
Scroggins
contends we must reverse his convictions for counts 1 and 2 involving Guadalupe
because there was insufficient evidence he had the requisite lewd intent for
these crimes. In deciding claims of
insufficient evidence in criminal cases, " '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." ' [Citations.]" [Citation.]'
[Citations.] The conviction shall
stand 'unless it appears "that upon no hypothesis whatever is there
sufficient substantial evidence to support [the
conviction]." ' " (
507-508.)
In this
case, the evidence shows that when Scroggins approached Cynthia, Stoltz, and
Barron, he demanded money or attempted to take their purses. Conversely, when he approached Guadalupe, he
did not do either. In addition,
Guadalupe was an unlikely robbery target as she was younger than the other
victims, she was wearing a school uniform, and she was carrying a backpack, not
a purse. Moreover, Scroggins's encounter
with Guadalupe occurred not long after he successfully robbed Stoltz of
approximately $40. While $40 might not
have sustained Scroggins for long, it would have addressed his immediate need
for gas money and prevented him from being so desperate that he needed to rob a
child for money. Further, the contrast
between Scroggins's willingness to discuss his crimes against the other victims
and his reluctance to discuss his crimes against Guadalupe support a finding
the latter crimes were different in kind than the former. This contrast, coupled with his admission his
actions against Guadalupe were the product of a mental sickness and not for
survival, would permit a reasonable jury to find he had the requisite lewd
intent for these crimes.
V
Incomplete
Instructions on Union of Act and Intent for Count 1
Scroggins
contends we must reverse his conviction for count 1 because the trial court's
instruction on the union of act and intent failed to convey to the jury that
Scroggins's lewd intent had to coincide with his touching of Guadalupe. As instructed, the jury could have separated
Scroggins's touching of Guadalupe, which occurred when he tried to kidnap her,
from his intent to derive sexual gratification.
The People
concede the error, but request that, instead of reversing the conviction, we
exercise our discretion under section 1260 to reduce it to attempted commission
of a lewd act with a child. Scroggins
opposes this request, arguing we may not reduce the conviction because the
jury's verdict does not necessarily encompass the requisite intent for
attempt.
"
'[U]nder Penal Code sections 1181, subdivision 6, and 1260, an appellate court
that finds that insufficient evidence supports the conviction for a greater
offense may, in lieu of granting a new trial, modify the judgment of conviction
to reflect a conviction for a lesser included offense.' " (People
v. Bailey (2012) 54 Cal.4th 740, 748.)
In this context, we determine whether a lesser offense is included in a
greater offense by applying the legal elements test. (Id.
at p. 752.) This requires us to consider
whether the jury, in finding Scroggins guilty of committing a forcible lewd act
on a child necessarily found all of the elements of attempting to commit a forcible
lewd act on a child. (
Although
some appellate courts have held an attempt to commit a crime is always a lesser
included offense of the completed crime (see, e.g., In re Sylvester C. (2006) 137 Cal.App.4th 601, 609;
496, 506), both this court and the California Supreme Court have recognized
that, because an attempt is a specific intent crime, an attempt is not
necessarily a lesser included offense of a general intent crime. (People
v. Bailey, supra, 54 Cal.4th at
p. 752; People v. Strunk (1995) 31
Cal.App.4th 265, 271.) However,
notwithstanding Scroggins's contrary arguments, this caveat does not apply in
this case.
To be
guilty of committing a forcible lewd act on a child, a defendant must have (1)
used force, (2) to willfully touch any part of the body of a child under 14
years old, (3) with sexual intent. (§
288, subd. (b)(1); CALCRIM No. 1111.) To
be guilty of attempting to commit a forcible lewd act on a child, the defendant
must have (1) intended to commit the crime and (2) taken a direct, but
ineffective step toward doing so. (§
21a; People v. Davis (2009) 46
Cal.4th 539, 606; CALCRIM No. 460.)
Because the crime of committing a forcible lewd act on a child requires
a willful act committed with a specific mental state, it is a specific intent
crime and the jury was so instructed under CALCRIM No. 252. Thus, to convict Scroggins of this crime, the
jury necessarily had to find he intended to commit the crime. Accordingly, attempting to commit the crime
is a necessarily included offense and we may and do exercise our discretion
under section 1260 to reduce the conviction in count 1 to attempted commission
of a lewd act on a child.
As we have
addressed this issue on the merits, we need not address Scroggins's contention
his trial counsel provided ineffective assistance by failing to preserve this
issue for appeal.
VI
Prosecutorial
Error
A
1
During its
closing instructions, the trial court informed the jury, "It is up to you
to decide the order in which you consider each crime and the relevant
evidence . . . but I can accept a verdict of guilty of a
lesser crime only if you have found the defendant not guilty of the
corresponding greater crime.
[¶] . . . [¶]
"If
all of you agree the People have proved beyond a reasonable doubt that the
defendant is guilty of the greater crime, complete and sign the verdict form
for guilty of that crime. [¶] Do not complete or sign any other verdict
form for that count.
"If
all of you cannot agree whether the People have proved beyond a reasonable
doubt that the defendant is guilty of the greater crime, inform me only that
you cannot reach an agreement and do not complete or sign any verdict form for
that count.
"If
all of you agree that the People have not proved beyond a reasonable doubt that
the defendant is guilty of the greater crime, and you also agree that the
People have proved beyond a reasonable doubt that he is guilty of the lesser
crime, complete and sign the verdict form for not guilty of the greater crime
and the verdict form for guilty [of] the lesser crime.
"If
all of you agree that the People have not proved beyond a reasonable doubt that
the defendant is guilty of the greater or lesser crime, complete and sign the
verdict form for not guilty of the greater crime and the verdict form for the
not guilty [of] the lesser crime.
"If
all of you agree that the People have not proved beyond a reasonable doubt that
the defendant is guilty of the greater crime, but all of you cannot agree on a
verdict for the lesser crime, complete and sign the verdict form for not guilty
of the greater crime and inform me only that you cannot reach an agreement
about the lesser crime."
2
In his
closing argument, the prosecutor told the jury, "[T]hat last jury
instruction about greater crime and lesser crime is extremely confusing. So here is the easiest way: start with what he's charged with, the
greatest crime. And you will know which
ones are lesser crimes because it actually says 'lesser included crimes.' The only way you can address the lesser
crimes is if you acquit him of not guilty of the greater crime. If you focus on the charged crimes first,
that's the logical way to go about it. If
you find him guilty of everything you don't have to address that. The only time you address lessers is if you
find him not guilty of the greater crime.
Then you start moving your way down.
It prevents you from going upwards.
It's kind of backwards starting at the lowest crime. Start with the greatest crime and then move
down."
Defense
counsel, whose main defense strategy was to persuade the jury Scroggins was
guilty of lesser offenses, did not object to the prosecutor's remarks and
largely parroted the prosecutor's approach.
For example, as to robbery charge, she told the jury, "You have to
get not guilty on the robbery before you can even get the lesser included
offense." She made substantially
similar remarks regarding other charges for which there were lesser included
offenses.
B
Scroggins
contends we must reverse his convictions for counts 2, 4, 5 and 7 because the
prosecutor's remarks about how the jury should approach its deliberations on
the greater and lesser offenses misstated California law allowing the jury to
consider crimes in any order and constituted prejudicial misconduct. We conclude there is no merit to this
contention.
Our review
of prosecutorial error claims is guided by well-established rules. "A
prosecutor's conduct violates a defendant's federal constitutional rights when
it comprises a pattern of conduct so egregious that it infects ' "the
trial with unfairness as to make the resulting conviction a denial of due
process." [Citation.]' [Citation.]
The focus of the inquiry is on the effect of the prosecutor's conduct on
the defendant, not on the intent or bad faith of the prosecutor. [Citation.]
Conduct that does not render a trial fundamentally unfair is error under
state law only when it involves ' " 'the use of deceptive or reprehensible
methods to attempt to persuade either the court or the
jury.' " ' " (
594–595.)
Under
California law, a jury may consider greater and lesser offenses in any order,
but it cannot return a verdict on a lesser offenses unless it first acquits on
the greater offense. (
114.) Scroggins does not dispute the
trial court properly instructed the jury on this aspect of the law. We presume the jury followed the trial
court's instructions. (
440.)
Scroggins
has not rebutted this presumption because he has not shown the prosecutor
countermanded the trial court's instructions.
Considered in context, the prosecutor's remarks simply paraphrased and
reinforced the part of the law requiring the jury to return a verdict on the
greater offense before returning a verdict on a lesser offense. Moreover, in her closing remarks, defense
counsel encouraged the jury to follow the very same approach while concurrently
emphasizing the reasons why the jury should immediately reject greater offenses
in favor of lesser offenses. Thus, even
if the prosecutor's remarks were not a completely accurate reflection of the
law, Scroggins has not shown the remarks amounted to a deceptive or
reprehensible method of persuasion or that he was prejudiced by them.
Finally, a
claim of prosecutorial error in closing argument is generally waived absent a
timely objection. (People v. Pearson, supra,
56 Cal.4th 393 at p. 440.) As we have
addressed this issue on the merits, we need not address Scroggins's contention
his trial counsel provided ineffective assistance by failing to preserve this
issue for appeal. Nonetheless, we note
defense counsel's encouragement of the same approach suggests any failure to
object was tactical and not ineffective assistance. (People
v. Collins (2010) 49 Cal.4th 175, 233 [as deciding whether to object is
inherently tactical, the failure to object will rarely establish ineffective
assistance of counsel].)
VII
Cumulative Error
Scroggins
contends we must reverse his convictions because the cumulative impact of the
preceding trial court errors deprived him of due process of law and a fair
trial. We have identified only one
error, which we remedied by reducing Scroggins's conviction for count 1. As there were no other errors to accumulate,
we must necessarily reject this contention.
(People v. Whalen (2013) 56
Cal.4th 1, 92; People v. McKinzie
(2012) 54 Cal.4th 1302, 1357.)
DISPOSITION
The
judgment is modified to reduce Scroggins's conviction in count 1 from
commission of a forcible lewd act with a child (§ 288, subd. (b)(1)) to
attempted commission of a lewd act with a child (§§ 288, subd. (b)(1),
664). In all other respects, the
judgment is affirmed.
McCONNELL,
P. J.
WE CONCUR:
HALLER, J.
IRION, J.
name="_ftn1" title="">[1] Further statutory references are also to the Penal Code
unless otherwise stated.
name="_ftn2" title="">[2] The record on appeal initially contained only the redacted
version of Scroggins's interview with police detectives shown to the jury. As the trial court decided Scroggins's
interview, we obtained, reviewed, and based our summary and analysis on the
entire interview. The redacted version
did not include any discussion of Scroggins's past convictions or any crimes he
may have committed against his niece.
