P. v. Tobar

Filed 10/10/07 P. v. Tobar 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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A jury convicted defendant, Jerry Richard Tobar, of three counts of second degree robbery (Pen. Code, 211)^[1]and two counts of second degree attempted robbery ( 664; 211), with an enhancement for each count for personal use of a firearm. ( 12022.53, subd. (b).) The trial court sentenced defendant to state prison for 13 years.

On appeal, defendant contends: (1) the trial court violated his right to counsel of choice when it denied his motion to continue so he could substitute retained counsel; (2) there was insufficient evidence of the crimes charged; and (3) the trial court erred by not instructing the jury on lesser included offenses. We affirm.

FACTS

Count One

At about 11:00 p.m. on March 6, 2004, defendant approached Stephen Luther and Luthers girlfriend who were sitting in a car with the windows down in the driveway of Luthers house. Defendant was not wearing a shirt. He pointed a handgun at Luthers face and demanded that Luther give him the sweatshirt on Luthers lap. Defendant then grabbed the sweatshirt and ran towards the neighbors house. Defendant was not seen with the sweatshirt after that.

Counts Two and Three

Shortly after taking Luthers sweatshirt at gunpoint, defendant approached Filip K. and his friend Ryan H., who were walking through the Mesa Verde High School campus located near Luthers house. Defendant, still not wearing a shirt, pointed his gun at the teenage boys faces, ordered them to put their hands up, and asked if they had any money. Filip said no. Defendant ordered the boys to empty their pockets, drop the contents, and run. Filip emptied some cigarettes, a lighter, and a condom and placed them on the ground, and both boys ran. When they were about 20 feet away, defendant yelled for them to stop. Filip heard the sound of defendants gun click as he walked toward them. Defendant asked if the boys had any drugs and ordered them to remove their pants and run again. The boys complied. Filip did not see defendant pick up any of the dropped items, and the boys never went back to attempt to retrieve their belongings.

Counts Four and Five

That same evening at about 11:30 p.m., defendant approached Audrey G. and Samantha K. in Rusch Park located near Luthers house and Mesa Verde High School. The teenage girls were there planning to meet Filip and Ryan. Defendant pointed his gun at the teenage girls and demanded their wallets. They told him they did not have wallets. Defendant ordered the girls to drop their shit and run. Audrey dropped some school notes and her jacket. Samantha dropped a note and five dollars. When Audrey asked if she could have her jacket back, defendant said no, but told her she could retrieve it later. Before running, Samantha picked up her note. The girls ran from the area and hid behind some nearby bushes. After defendant left, Audrey returned and retrieved her notes and jacket, which were still there.

Defendants Arrest

Defendant was arrested after midnight that same night as he was lying face down in a creek by the park with his head and arms underneath the water. The officers performing the arrest found a handgun buried three or four inches in the sand directly beneath the area where defendant was arrested. Defendant had no shirt, no property in his pockets, and no property on his person when he was arrested.

Evidence of Defendants Intoxication

Defendant offered evidence of his intoxication on the night of the events at issue. Earlier that day, defendant had been drinking at the Fireside Lanes bowling alley with some friends and family. Defendant testified that he was drunk as hell. At some point, defendant had a hostile encounter with about 15 people at the bowling alley.

After defendant and his parents went home, defendant couldnt control [his] emotions. According to defendants mother, defendant panicked and was speaking of the need to protect his family. Defendant left the house with a gun to get back up to the bowling alley to confront [the people at the bowling alley]. There is no evidence that the victims of the crimes at issue were involved in any way with the confrontation at the bowling alley.

Defendant was arrested while lying face down in a freezing creek on a cool evening. One officer requested that defendants blood sample be taken because he suspected defendant might have been under the influence of something. The blood sample was taken at 3:16 a.m., but results were not introduced at trial.

DISCUSSION

I

Right to Counsel of Choice

Defendant, who was represented by retained counsel, argues that the trial court violated his right to counsel by denying his request for continuance (on the first day of trial) and his Marsden motion^[2](after trial had begun) so he could substitute other retained counsel. Specifically, defendant claims that his motions were timely because (1) previous continuances were attributable to defense counsel and (2) it was not until the eve of trial that defendant learned of defense counsels inadequacy. We disagree with defendants contention that the trial court violated his right to counsel.

A. Motion for Continuance

On the day trial was to begin, defendant requested a continuance so that a new attorney of his choice could try the case. The district attorney objected, noting that this case [was] already a year and a half old. Seven trial dates had already been set and continued.

The trial court stated, Theres got to be a limit to what a defendant can do to avoid trial and come in and want a new attorney and so forth. Its just not reasonable on a trial date to come in and say, hey, now I want to change attorneys or something like that.

Defense counsel informed the court that he had been in trial almost continuously for the last year and a half, couple of years, and he still had 14 trials left. The court stated, Well, somewhere along the line this case has to get in the pecking order of your cases that get to go to trial. Defendant named the new attorney whom he wanted to retain and stated that they had come to an agreement but that the attorney was not present, as he was out of town.

The court denied the motion for continuance because (1) it was untimely, (2) defendant already had eight trial dates, and (3) this case had been pending for about a year and half.

The right of a criminal defendant to effective assistance of legal counsel embraces the right to retain counsel of ones own choice (People v. Courts (1985) 37 Cal.3d 784, 790-791) and the right to discharge an attorney whom [a defendant] hired but no longer wishes to retain. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) However, these rights are not absolute. (Ibid.; People v. Rhines (1982) 131 Cal.App.3d 498, 506.)

A court faced with a request to substitute retained counsel must balance the defendants interest in new counsel against the disruption, if any, flowing from the substitution. [Citations.] (People v. Lara (2001) 86 Cal.App.4th 139, 153.) Stated differently, the right to counsel can be forced to yield when it will result in a disruption of the orderly processes of justice. (People v. Ortiz, supra, 51 Cal.3d at p. 982.)

Thus, a continuance may be denied if the defendant is unjustifiably dilatory in obtaining counsel or if he arbitrarily chooses to substitute counsel at the time of trial. [Citation.] (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) Accordingly, the timing of eve-of-trial, day-of-trial, and second-day-of-trial requests for continuance is a significant factor that may justify a denial. (See, e.g., People v. Rhines, supra, 131 Cal.App.3d at p. 506 [motion for continuance was not timely where defendant waited until 11 a.m. on second day of jury selection]; People v. Blake (1980) 105 Cal.App.3d 619 [where defendant had reasonable opportunity to obtain counsel of choice, no abuse of discretion if no continuance granted at start of trial]; People v. Johnson (1970) 5 Cal.App.3d 851 [upholding trial court's denial of day-of-trial request for continuance].)

In this case, the trial courts denial was largely based on the lateness of defendants day-of-trial request. The court stated that the request was not timely and that it was not reasonable to request to change attorneys on a trial date. Therefore, the courts denial was consistent with precedent.

Defendant argues that he was not unjustifiably dilatory in making his last minute request because the seven previous continuances were attributable to defense counsels overburdened trial schedule and not to him. Whether all of the previous continued trial dates were attributable to defense counsel is unclear from the record. However, regardless of who was to blame for the numerous continuances, the court did not abuse its discretion in considering the length of this cases pendency.

Defendant further argues that his dilatory request was justifiable because it was not truly until the eve of trial that he became fully aware of defense counsels lack of preparation. He bases this contention on information presented at the Marsden hearing. The Marsden hearing occurred after the case was assigned to a different trial judge than the one who denied the continuance and five days after the motion for continuance.

In deciding whether a trial court has abused its discretion in denying a motion for continuance, we look particularly [to] the reasons presented to the trial judge atthe time the request [was] denied. [Citations.] (People v. Courts, supra, 37 Cal.3d at p. 791; People v. Frye (1998) 18 Cal.4th 894, 1013 [reviewing court looks to reasons presented for request].)

Because allegations involving defendants eve-of-trial discovery of defense counsels lack of preparation were not presented to the trial court at the time of the motion for continuance, the trial court did not and could not consider them in making its decision. Therefore, on appeal they provide no basis for us to conclude the trial court abused its discretion.

B. Marsden Hearing

After jury selection, opening statements, and the district attorneys commencement of its case-in-chief, defendant requested a Marsden hearing. The trial court granted the request and defendant stated he had lost confidence in his retained attorney, Paul Comiskey, and had no belief that Mr. Comiskey was prepared to adequately represent him. Defendant listed several reasons he felt Mr. Comiskey was not adequately prepared.

Although Mr. Comiskey conceded that defendant had lost confidence in him, he insisted he was prepared to adequately represent his client. Mr. Comiskey said, I believe that I had prepared to try this case. And as I sit here right now, I cannot think of anything that I would do to try it that I havent done.

The trial court denied the Marsden motion, finding that defendants request to substitute counsel was an attempt to delay trial. It further noted that it could not see what more Mr. Comiskey could have done on the case.

A Marsden hearing, requested when a criminal defendant believes counsel is providing inadequate representation or where he and his attorney are embroiled in irreconcilable conflict, is appropriate only when defense counsel has been appointed. (People v. Munoz (2006) 138 Cal.App.4th 860, 866; People v. Lara, supra, 86 Cal.App.4th at p. 152.) Because, here, defense counsel was retained, defendant was not entitled to a Marsden hearing, and a Marsden hearing was not the appropriate vehicle in which to consider defendants complaints against his attorney.

Because a Marsden hearing was inappropriate in the first place, any assertion that the Marsden motion was improperly denied is without merit. In any event, the court did not abuse its discretion by weighing the evidence before it and finding that retained counsel was adequately prepared for trial and that defendants attempt to replace him was a delay tactic. Therefore, defendants contention that the trial court violated his right to counsel fails.

II

Insufficient Evidence

Defendant contends that there was insufficient evidence to support his convictions for robbery and attempted robbery. First, as to counts one through five (the robbery of Luther in the car (count one), the robbery of the two boys at the school (counts two and three), and the attempted robbery of the two girls at the park (counts four and five)), defendant argues that his behavior did not demonstrate the specific intent to permanently deprive the victims of any property because he did not retain the sweatshirt or pick up any other property. Second, again, as to counts one through five, defendant argues that there was insufficient evidence of his intent to permanently deprive because his extreme state of intoxication affected his ability to form such intent. And third, as to counts two through five, defendant argues that his behavior did not satisfy the taking element of robbery because he did not pick up the victims property after it was dropped to the ground by the victims. The contentions are without merit.

[W]e review the entire 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 have found the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1212.)

A. Specific Intent to Permanently Deprive

To convict of robbery, the jury must find that the defendant intended to permanently deprive the victim of his or her property. (CALJIC No. 9.40.) In determining whether a defendant had the intent to permanently deprive, the relevant inquiry is whether the defendant had such intent at the time of the taking of the property, regardless of what he does with it after taking it. (People v. Carroll (1970) 1 Cal.3d 581, 584.) The intent to permanently deprive an owner of property may be inferred from the circumstances of the case. (People v. Hall (1967) 253 Cal.App.2d 1051, 1054.)

In Carroll, the defendant demanded a victims wallet at gunpoint. (People v. Carroll, supra, 1 Cal.3d at p. 583.) He then discarded the wallet as soon as he discovered it contained no money. (Ibid.) The court found that even though the defendant discarded the wallet, the jury could reasonably infer that at the time defendant demanded and received the wallet it was his intention to deprive the owner of it permanently. (Id. at p. 584.)

In a similar case, a defendant took a bicycle by force. (In re Albert A. (1996) 47 Cal.App.4th 1004, 1006.) The defendants bicycle had been stolen, and he said he was holding the victims bicycle as ransom until his was returned. (Ibid.) The court observed that the return of property previously taken does not compel the conclusion that a defendant intended only to temporarily deprive the owner of the property. (Id. at p. 1008.)

In this case, defendant testified at trial that he had no intention of robbing anyone and that he did not want any property. He explained his actions of pointing a gun at the victims heads and demanding they give him or drop their property as being spontaneous and without rhyme or reason.

Defendant argues that because he did not retain the sweatshirt for any extended period of time and because he did not pick up the boys property at the school or the girls property at the park, that there was insufficient evidence he had the specific intent to permanently deprive the victims of their property.

The jury reasonably rejected defendants testimony that he did not intend to rob anyone or that his actions had no rhyme or reason. The jury reasonably inferred that at the time defendant pointed a gun at the victims heads and demanded that they give him or drop their property, he intended to permanently deprive them of it. That defendant (1) discarded Luthers sweatshirt shortly after taking it, (2) apparently left the boys property where it was dropped, and (3) left the girls property for them to retrieve do not compel the conclusion that at the time he took the property he intended to deprive the owners only temporarily.

We draw all reasonable inferences in favor of the jurys verdicts. (Inre James D. (1981) 116 Cal.App.3d 810, 813.) Given defendants pointing a gun at the victims and demanding that they give him or drop their property, there was substantial evidence from which a jury could reasonably infer that defendant intended to permanently deprive the victims of their property.

B. Intoxication

Defendant contends that, because he testified he was intoxicated on the night of the crimes, there was insufficient evidence he formed the specific intent to permanently deprive the victims of their property. Although the jury was allowed to consider defendants testimony of intoxication, the fact that defendant may have been intoxicated did not prevent the jury from concluding that he had formed the requisite specific intent.

Defendants testimony that he was intoxicated does not mandate the conclusion that he could not form the requisite intent. (People v. Boyer (2006) 38 Cal.4th 412, 469.) As he concedes, it is merely a factor in determining whether intent was formed. (Ibid.)

In this case, the jury could have reasonably rejected any assertion that defendants claimed intoxication affected his ability to form intent to permanently deprive. He went from victim to victim demanding property and brandishing his firearm. Therefore, even if he was intoxicated, the jury could reasonably conclude he had sufficient control over his mental processes to form the specific intent.

C. Asportation

The taking element of robbery itself has two necessary elements, gaining possession of the victims property and asporting or carrying away the loot. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) The asportation requirement is satisfied by evidence of slight movement. (Ibid.; People v. Quinn (1947) 77 Cal.App.2d 734, 737 [A very slight removal is sufficient.].) The property need not be in the defendants physical possession when it is moved. (People v. Martinez (1969) 274 Cal.App.2d 170, 174.) It is sufficient that the defendant acquires dominion over the property and that it is moved by a person acting under the defendants control, including the victim. (Ibid.)

In Martinez, this court held that although there was no evidence the defendants ever had physical possession of a service stations money, there was evidence that permitted a reasonable inference that the attendant, at gunpoint, had been forced to take money from the cash box and place it in a paper sack. This was sufficient for the jury to find that the money had been asported or moved in satisfaction of the taking element of robbery. (People v. Martinez, supra, 274 Cal.App.2d at p. 174.)

Similarly, the court in Quinn found sufficient evidence of asportation where the victim, held at gunpoint, threw his wallet to the ground and was allowed to retrieve it after informing the robbers it contained no money. (People v. Quinn, supra, 77 Cal.App.2d at pp. 735-737.)

Here, defendant claims that because there was no evidence that he picked up any of the items belonging to the boys at the school, and because the girls were able to recover their property from the place they had dropped it, that the property was never asported. We disagree.

The movement in this case is not unlike that in Martinezand Quinn. By holding a gun on the victims and demanding that they drop their property and run, defendant exercised dominion over their property and deprived them of their possession. At defendants command, the victims removed property from their person and dropped it. Therefore, even though the property in counts two through five may never have been in defendants hands, the property was moved by the victims acting under defendants control. Thus, there was sufficient evidence that the property was asported.

III

Lesser Included Offenses

Defendant contends that assault with a deadly weapon ( 245, subd. (a)(2)) and brandishing a firearm ( 417) are lesser included offenses of robbery when a firearm use enhancement is alleged in the accusatory pleading. Based on this contention, defendant argues that the trial court abused its discretion by failing to instruct the jury on these offenses. This contention is without merit.

Under California law, a lesser offense is necessarily included in a greater offense if . . . the facts actually alleged in the accusatory pleading[] include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.) However, the California Supreme Court has held that a use enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92, 101.)

Defendant argues that Wolcotts holding should be rejected in light of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and People v. Seel (2004) 34 Cal.4th 535. In Apprendi, the court held that under the Sixth Amendment a jury, not a judge, must find a sentence enhancing fact when it exposes the defendant to a greater punishment than that permitted by the jury verdict. (Apprendi v. New Jersey, supra, at p. 490.) In its holding, the court reasoned that when the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. (Id. at p. 494, fn 19.) Applying Apprendi, the California Supreme Court explained in Seel that a finding of premeditation in an attempted murder case was the functional equivalent of an element of a greater offense within the meaning of the federal double jeopardy clause. (People v. Seel, supra, at pp. 545-547.)

The holdings of Apprendi and Seel do not affect Wolcott or its rule that enhancements should not be considered when defining lesser included offenses based on allegations in the accusatory pleading. Apprendi and Seel were limited to inquiries into the constitutional protections of jury trials, due process, and the double jeopardy clause. They did not address the propriety of lesser included offense instructions. Consideration of lesser included offenses is a state common law principle, and neither Apprendi nor Seel creates a constitutional standard for determining lesser included offenses. (See Hopkins v. Reeves (1998) 524 U.S. 88, 97 [141 L.Ed.2d 76] [states have prerogative of dictating process by which lesser included offenses are determined.].)

Until the Supreme Court holds otherwise, Wolcott remains controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The firearm enhancement is not considered in determining lesser included offenses. Accordingly, the trial court did not err by not instructing the jury on assault with a deadly weapon and brandishing a firearm as lesser included offenses of robbery.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2]People v. Marsden (1970) 2 Cal.3d 118.