P. v. Harris

Filed 3/29/06 P. v. Harris CA4/1

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

A jury convicted defendant Michael Harris of nine counts of robbery (Pen. Code, § 211)^[1] and found true that he personally used a firearm during the commission of the robberies (§ 12022.53, subd. (b)). Harris contends: (1) the court erred by denying his Marsden^[2] motion seeking new appointed counsel; (2) he was denied effective assistance of counsel; and (3) the evidence was insufficient to support the convictions.

I

FACTUAL BACKGROUND

On the night of January 29, 2004, two cars were stolen in the City of Oceanside, and were used the following day in a jewelry store robbery. The first car, a white Buick with California license plate number 1STW004, was stolen from outside the owner's apartment sometime between 10:00 p.m. and the following morning. The second car, a red Jeep with California license plate number 3CTN710, was stolen from outside the owner's apartment sometime between 11:00 p.m. and the following morning.

Shortly before 11:00 a.m. on January 30, 2004, the stolen Buick parked in the fire lane in front of the Collins Family Jewelry Store in Mira Mesa, California. Three black men wearing ski masks, baggy clothing and hooded sweatshirts got out of the car and entered the store. The robbers brandished handguns at the employees and customers and ordered them to lie on the floor. The robbers smashed the glass display cases and collected the jewelry. During the robbery, an employee overheard one of the robbers state, "We need to hurry up; we have two minutes left."

An employee, Ms. Ullmer, was behind a counter processing a repair item for a customer when the robbers entered. One of the robbers, who had the same skin tone and the same height, weight and build as Harris, pointed a gun at her and ordered her to get down. This robber, who was gloveless, then walked to the drawer where the repair items were kept, reached into the drawer, and began taking some of the repair items. A few minutes after the robbers entered, they left the store and drove away in the stolen Buick.

Two days later, Legoland employees noticed the Jeep, which had been left in the parking lot overnight. At approximately 11:00 a.m., a security officer observed the stolen Jeep's small window on the drivers' side had been broken and the ignition altered. He contacted police and gave them the license plate number. The police confirmed it was the stolen Jeep. Police determined, based on a review of the security tape from the Legoland parking lot surveillance camera, the Jeep had entered the Legoland parking lot approximately 55 minutes after the robbery of the Collins Family Jewelry Store, and had been abandoned.^[3]

Police collected evidence from the interior of the Jeep, including several repair receipts, envelopes and jewelry displays from the Collins Family Jewelry Store. Police also found a plastic tile in the Jeep. Mr. Collins, owner of the Collins Family Jewelry Store, testified the tile was an acrylic insert from the inside of the jewelry repair items drawer at his store. Police obtained a partial fingerprint from the tile; it matched Harris's fingerprints.

I

ANALYSIS

A. Substantial Evidence Supports the Convictions

Harris concedes the evidence supports the conclusion someone robbed the jewelry store, but asserts there is no substantial evidence he was a participant in the robbery.

When reviewing a claim attacking the sufficiency of the evidence to support a conviction " 'the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) If the verdict is supported by substantial evidence--reasonable, credible, and of solid value--we accord due deference to the verdict and will not substitute our conclusions for those of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient evidence unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

The same deferential standard of review applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) "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 be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

The events at the jewelry store made a positive eyewitness identification of the robbers difficult: the robbers were wearing masks, the events transpired quickly, and the victims were either ordered to the floor or trying to escape. However, the physical evidence of Harris's fingerprint on the jewelry store tile insert, either alone or viewed through the prism of the circumstantial evidence, supports the verdict. Fingerprints are evidence of identity and ordinarily will suffice to identify the perpetrator of a crime (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1588), and "[t]he jury is entitled to draw its own inferences as to how the defendant's prints came to be on the [object] and when. . . ." (People v. Gardner (1969) 71 Cal.2d 843, 849.) Harris does not contend the fingerprint evidence in this case was not an accurate match of his fingerprints to the fingerprint on the tile. A man with the same height, weight, build and skin tone as Harris was seen reaching his gloveless hand into the drawer from which the tile was taken, and the tile (along with other detritus of the robbery) was then abandoned less than an hour later in a stolen car in a parking lot many miles from the site of the robbery. Although it is theoretically possible that a phantasmagoria of events could explain how Harris's fingerprint might have been placed on the tile in the one hour following the robbery, there is ample evidence to support a rational trier of fact's conclusion that the most logical explanation was Harris touched the tile during the robbery and then abandoned it shortly thereafter in a car earlier stolen to provide a getaway vehicle. There was substantial evidence Harris was a perpetrator of the jewelry store robbery.

B. The Court Did Not Abuse Its Discretion by Denying Harris's Marsden Motion

Harris moved to replace appointed counsel; the court denied the motion. Harris argues the ruling was an abuse of discretion.

"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 [citations]." (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 364-365.) "[S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel." (People v. Webster (1991) 54 Cal.3d 411, 435, citing Marsden, supra, 2 Cal.3d 118, 123-124.)

The court conducted a hearing at which Harris was allowed to explain his reasons for seeking new counsel. Harris complained his attorney was difficult to contact and had not investigated witnesses and documents that might have supported an alibi defense. His attorney responded that he had a number of conversations with Harris and with Harris's mother, and also had met with Harris's brother and girlfriend, trying to reconstruct where Harris was on the day of the robbery and to determine if there were witnesses or documents to establish an alibi. This investigation revealed these people had no firm information (or leads to other witnesses) that would establish Harris was elsewhere at the time of the robbery. The attorney explained the family members and girlfriend could only testify they felt or believed Harris was probably at home because he is "always at home." The attorney, with nearly 30 years of criminal defense experience, was of the opinion juries are typically skeptical of alibi defenses (particularly when supported only by the testimony of people whose bias is obvious), and Harris's purported alibi would have left unexplained how the critical evidence--his fingerprint--was on the jewelry store tile.

The court concluded the attorney had considered, and had adequately investigated, whether a viable alibi defense could be presented, and had competently determined that pursuit of that defense would have been fruitless. Accordingly, the court denied the motion. We cannot conclude this ruling was an abuse of the court's discretion. The court concluded, with substantial evidence to support the conclusion, the attorney was providing adequate representation: he had considered and investigated whether there was any evidence to support an alibi defense, and his tactical decision--that the evidence family members could provide and the absence of any non-biased witness or other hard evidence to support the defense made the defense untenable considering the fingerprint evidence--was within the range of competent advocacy. The court could also conclude Harris and his attorney were not embroiled in such an irreconcilable conflict that ineffective representation was likely to result. The only conflict was Harris's wish to pursue a defense trial counsel competently judged to be fruitless, and a conflict over tactics does not mandate granting a motion to substitute appointed counsel. (People v. Cole (2004) 33 Cal.4th 1158, 1192-1193.)

C. Harris Was Not Denied Effective Assistance of Counsel

Harris asserts he was denied effective assistance of counsel because his attorney, by rejecting pursuit of an alibi defense, presented no meaningful defense.^[4] However, the attorney did present a reasonable defense under the facts presented: he argued reasonable doubt existed because the only link to Harris was the partial fingerprint; the other physical evidence (saliva on a cigarette butt and blood in the car) was not matched to Harris; an escape route from the site of the robbery back to Harris's home in San Bernardino was inconsistent with the location of the abandoned Jeep; and there was no evidence Harris had begun a spending spree in the weeks after the robbery. A reasonably competent attorney could have concluded that an unsupported claim of alibi might have diverted the jury's focus from the alleged weaknesses of the prosecution's case to the weakness of an alibi claim, and thereby harmed the defense argument. We are generally reluctant to second guess matters of trial tactics and strategy (People v. Mitcham (1992) 1 Cal.4th 1027, 1058-1059), and the decision here was within the range of reasonable competence.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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

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

^[3] The tape also showed the Jeep followed a blue car into the Legoland lot, and these two cars were together, but the security tape could not be sufficiently enhanced to obtain the license plate number of the blue car.

^[4] Harris also reasserts the attorney did not investigate possible evidence to support an alibi defense. However, the attorney did investigate possible evidence to support an alibi: he met with family members to determine if they (or any third parties) could establish Harris's whereabouts during the critical time. The attorney determined that, apart from the speculations of obviously biased witnesses, there was nothing to support Harris's claimed alibi, or any evidence that explained and reconciled Harris's alibi with his partial fingerprint on the tile.