P. v. Tobias
Filed 3/16/06 P. v. Tobias CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEIGH TOBIAS, Defendant and Appellant. | B179234 consolidated w/B182233 (Los Angeles County Super. Ct. Nos. MA026922 & MA026950) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa M. Chung, Judge. Reversed in part and remanded.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
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Brian Leigh Tobias appeals the judgment entered after conviction by jury of kidnapping, false imprisonment, felony evading, six counts of exhibiting a firearm to a peace officer and shooting at an inhabited vehicle. (Pen. Code, §§ 207, subd. (a), 417.8, 246, 210.5; Veh. Code, § 2800.2, subd. (a).)[1] The jury found Tobias personally used a firearm in the commission of evading, kidnapping and false imprisonment within the meaning of section 12022.5, subdivision (a), or section 12022.53, subdivision (c). Tobias admitted two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Tobias to a term of 34 years and 8 months in state prison on these counts.
Tobias also appeals the judgment entered following his plea of no contest to one count of attempted murder (§§ 664/187) and two counts of assault with a firearm on a peace officer in which he personally discharged a firearm (§§ 245, subd. (d)(1), 12022.53, subd. (c)). On these counts, the trial court sentenced Tobias to a consecutive term of 16 years and 8 months, bringing the aggregate term imposed to 51 years and 4 months.
Because the two appeals are factually and procedurally related, we ordered them consolidated. For the reasons set out below, we: (1) reverse the jury conviction of false imprisonment; (2) remand the case to the trial court to permit Tobias to withdraw his no contest pleas; and, (3) deny Tobias's request for substitution of counsel on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
1. The incident of July 2, 2003.[2]
On July 2, 2003, Tobias was driving on 35th Street in Lancaster. The back seat passenger, Michael Kelley, made an obscene gesture at an African-American pedestrian, Frederick Terry, and suggested they â€
