Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI020194, Jon Ferguson and Stephen H. Ashworth, Judges.
Judge Ferguson conducted the hearing on defendant’s motion to represent himself. Judge Ashworth presided over defendant’s trial.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Alberto Arroyo appeals from his conviction of first degree murder (Pen. Code, § 187, subd. (a)), along with true findings on firearm and gang enhancement allegations (§§ 12022.53, subds. (b), (d) & (e)(1), 186.22, subd. (b)(1)). Defendant contends: (1) the trial court committed Faretta error in denying defendant’s motion for self-representation; (2) the trial court abused its discretion in denying defendant’s second Marsden motion; (3) the evidence was insufficient to support the “primary activities” element of the gang enhancement and firearm enhancements; (4) the trial court prejudicially erred in failing to instruct the jury sua sponte that crimes which take place after the charged crime do not qualify as predicate offenses for purposes of the gang enhancement allegation; (5) the trial court erred in failing to award full actual presentence custody credit; and (6) the minutes should be corrected to delete a reference to life without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise indicated.
We note that the first amended information does not separately allege an enhancement under section 12022.53, subdivision (b), and the jury was asked to find true only one firearm enhancement, specifically, that “in the commission of the above offense a principal discharged a firearm causing great bodily injury or death . . . .” The trial court minutes reflect, however, that the jury found true enhancements under both subdivisions (b) and (d) of section 12022.53. The trial court imposed sentence for both enhancements, but stayed the sentence for section 12022.53, subdivision (b), under section 654.
From Faretta v. California (1975) 422 U.S. 806 (Faretta).
From People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We conclude that the jury instructions as regards the gang and firearm enhancements were prejudicially erroneous. We also agree that defendant is entitled to an additional day of custody credit, and the minutes should be corrected. We find no other prejudicial errors.
II. FACTS AND PROCEDURAL BACKGROUND
In the afternoon of October 1, 2004, codefendant Manuel Luis Cruz parked the Honda sport utility vehicle (SUV) he was driving in front of the home of Donald Woods in Victorville; Steven Gutierrez was a passenger in the car. Defendant was not present. Woods or his guest, Oscar Ramirez, asked Cruz to move the vehicle because it was partially blocking Woods’s driveway and mailbox.
The trials of defendant and Cruz were severed. In his separate trial, Cruz was convicted of first degree murder with gang and firearm enhancements based on the same crime for which defendant was convicted. Cruz was also convicted of assault with a deadly weapon and unlawful taking or driving a vehicle, with associated gang enhancements, based on incidents in which defendant was not a participant.
Gutierrez approached Ramirez and asked him, “Whose neighborhood is this?” and “What gang are you in?” Ramirez replied that he was from Mexico, and he was not in a gang. It appeared to Ramirez that Gutierrez was going to hit him, and Ramirez preemptively struck Gutierrez and knocked him down. While Ramirez and Gutierrez were fighting, Cruz produced a knife and stabbed Ramirez in the back. Ramirez chased after Cruz and fought with him. Gutierrez and Cruz got into their car and told Ramirez they would be back with their “homies.” Woods was not present during the fight.
In the early morning hours of October 2, 2004, Woods and his fiancée, Eleanor Guerra, were sleeping on the sofa bed in their living room when they were awakened by the sound of breaking glass. Shooting began, and Woods shielded Guerra’s body with his own so she would not get shot; however Woods was shot four times. Three shots entered and exited his body, but one shot penetrated his lung, liver, kidney, and intestine. Woods died within minutes from extensive blood loss.
A neighbor saw three or four people get out of an SUV, start shooting, and then run back to the car. It was the same SUV she had seen in front of Woods’s house the previous afternoon, but she could not describe any of the men.
A crime scene investigator photographed numerous shoe impressions in the dirt in Woods’s front yard. Robert Ristow, a criminalist employed by the County of San Bernardino, compared those shoe impressions with a pair of K-Swiss tennis shoes obtained from Cruz’s jail property and determined that one pattern in two of the photographs shared the same tread design, size, and general wear of Cruz’s tennis shoes. Ristow stated his opinion that the two shoe impressions in those photographs could have been made by Cruz’s tennis shoes.
An audiotape and videotape of an interview of defendant by sheriff’s deputies on October 15, 2005, were played for the jury. In the interview, defendant stated he had been at a birthday party at his cousins’ apartment on the evening of October 1, 2004. Cruz and Gutierrez were there, and they said they had been in a fight. Gutierrez had visible facial injuries, and he said “niggers jumped me,” and “I’ll get ‘em back, woop woop.” Cruz said “they were gonna go get these niggers,” but Gutierrez said he would not come along and that he was waiting for a gun. Defendant and Gutierrez argued about who had the “keys for the hood.” Deputy James Williams testified that “keys to the hood” meant who was in charge of a neighborhood from a gang’s perspective.
Defendant and a man called “Night Owl” joined Cruz and drove back to Woods’s house. Cruz had a revolver and Night Owl had a rifle. They parked near Woods’s house, and Cruz said he was “gonna beat the shit outta this fool.” Cruz told defendant to stay in the car and maintain a lookout. Defendant said he had stayed in the car, except he got out once to urinate nearby. Defendant stated he had been drunk.
The record does not indicate that Night Owl was ever identified or apprehended.
Night Owl broke out the front window of the residence, but his rifle jammed. Cruz fired through the other window with a revolver. After the shooting, the three drove back to San Bernardino and split up. Defendant admitted he had thrown away the shoes he had been wearing that night.
Defendant admitted he was from “Mt. Vernon.” He explained various gang graffiti that he was shown and identified various terms associated with the West Side Verdugo gang (WSV) and its “Mt. Vernon” clique. Defendant explained how he was “throwing” a gang sign in a photograph and discussed various individuals in his gang.
Manuel Gaitan, a police officer for the City of San Bernardino, testified he had training, education, and experience in criminal street gangs, particularly the WSV gang. Officer Gaitan stated that WSV was a huge gang with thousands of members, and it had smaller cliques, including “7th Street,” “Sir Crazy Ones,” “Little Counts,” and “Mt. Vernon.” Individuals within the cliques typically identified each other by “hit-ups,” i.e., by asking another where he was from; tattoos; and hand signs. Officer Gaitan testified that territory was important for WSV, and allowing others into the territory would be a sign of disrespect. He explained the graffiti WSV used to mark its territory.
Officer Gaitan testified that as part of his duties as a member of the police department gang unit, he “ma[d]e [him]self aware of the activities of a gang, as far as what their habits are, their patterns, by discussing things with known gang members.” He was familiar with WSV and had received some training specific to that gang. Officer Gaitan testified he was familiar with the list of offenses in section 186.22, subdivision (e). The following exchange occurred:
“Q Looking at, in your mind, that list, is it your opinion, based upon your training and experience, as to whether or not West Side Verdugo is a criminal street gang?
“A Yes, it is my opinion that West Side Verdugo is a criminal street gang.”
As to predicate offenses, Officer Gaitan testified that WSV members Benjamin Chagolla and Steven Agudo had each pleaded guilty to second degree burglary and had admitted a gang enhancement stemming from an incident that took place on February 14, 2005.
While defendant was in jail before trial, he made a recorded telephone call that was played for the jury. In that call, defendant said, “I gotta keep the family up.” Officer Gaitan testified that meant “[n]ot letting the gang [be] disrespected.” During the telephone call, the person to whom defendant was speaking referred to “putting in work.” Defendant responded, “What do you think I’m doing over here?” Officer Gaitan testified that “putting in work” is a means of getting respect in the gang. Defendant stated “It’s West Side Verdugo, I was saying my shit out loud” in the jail. Officer Gaitan interpreted that as announcing his gang identity.
Officer Gaitan stated his opinion that the murder of Woods had been committed to benefit the gang. He explained that it was important for gang members to stand up for another member who had been disrespected. If a gang member initiated a fight and lost, he and his gang would lose face, and he and other gang members might retaliate so as to regain status. Officer Gaitan testified that the language defendant used in defendant’s recorded jailhouse telephone conversations indicated defendant was a member of and dedicated to WSV.
The jury found defendant guilty of first degree murder (§ 187, subd. (a)) and found true the allegations that the offense had been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal in the murder had intentionally discharged a firearm causing death (§ 12022.53, subds. (b), (d) & (e)(1)). The trial court sentenced defendant to 25 years to life for the murder and to a consecutive term of 25 years to life for the firearm enhancement allegation under section 12022.53, subdivisions (d) and (e)(1). The court imposed a 10-year term for the section 12022.53, subdivision (b) and (e)(1) firearm enhancement and a 10-year term for the gang enhancement under section 186.22, subdivision (b), but stayed both of those terms under section 654.
The reporter’s transcript indicates the trial court stated it was imposing the 10-year term under section 12022.53, subdivision (d). However, the trial court’s minutes and the abstract of judgment refer to section 12022.53, subdivision (b).
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Denial of Faretta Motion
Defendant contends the trial court erred in denying defendant’s motion for self-representation under Faretta. Defendant argues that the trial court’s finding that defendant was incompetent to represent himself and the subsequent suspension of criminal proceedings were equivalent to a doubt as to his competency to stand trial. He argues that as soon as the trial court harbored a doubt as to his competency, it had no jurisdiction to proceed with any criminal proceedings. Thus, defendant contends, the trial court lacked jurisdiction to rule on the Faretta motion at the time it was made.
1. Additional Factual Background
On September 30, 2005, before the preliminary hearing took place, defendant’s counsel stated that defendant wished to address the court. Defendant stated, “I don’t want nothing to do with my attorney. I would like to fire him and ask for another one because he came to video phone over there at West Valley, and I say I don’t want to do it, no. And he said some words, and that’s it.” After discussion between the court and counsel on scheduling matters, the trial court conducted a Marsden motion. During the hearing, defendant stated, “If I can’t get another attorney, I would like to go pro[.] per.” Following the hearing, the trial court denied the Marsden motion. Defendant then stated, “I ain’t going to speak to [defense counsel] no more, so if I have to go pro[.] per[.] . . .” The court stated, “Well, let me ask you this: Is it your intention to—that’s a whole different finding that’s got to be made, and that’s not a hearing that requires the district attorney to be excluded from. And sounds like you want representation, but you’re unhappy with — .” Defendant interposed, “I’ll go pro[.] per[.] if—you know? I know if I go pro[.] per[.] I’ll be better off.”
On October 3, 2005, the court held another hearing. The court stated, “We had a Marsden hearing on Friday. You made a request to represent yourself. Is that still something that you’re desiring to do or — .” Defendant stated, “I still want to go pro[.] per.” The court gave defendant a Faretta waiver form to read and complete. After a pause in the proceedings, the trial court asked defendant, “The other day it was indicated that—you made a Marsden motion and that was denied. Is it your desire to represent yourself because of that denial of that motion, or is it your desire to represent yourself because you want to represent yourself?” Defendant responded, “I just want to represent myself, your Honor.” The trial court then asked, “If it was another attorney other than the current attorney, would you prefer to be represented or would you prefer to represent yourself?” Defendant responded, “I would like to represent myself.”
The trial court asked defendant if he knew what he was charged with and what punishment he faced. Defendant replied that he was charged with murder, and he faced a sentence of about 15 years. The trial court informed him that the sentence for first degree murder was 25 years to life; his first parole date would not take place until after he had served 25 years; and it would be “almost unheard of” to be granted parole at that time. The trial court confirmed that defendant knew he had been charged with a criminal street gang enhancement. Defendant stated he believed the effect of that enhancement would be about two years, but the trial court informed him he would face a 10-year sentence for the enhancement. The trial court asked defendant if he knew the roles of the district attorney, the defense attorney, the judge, and the jury, and defendant responded that he did not know.
The trial court then inquired of defense counsel, “[I]n your time dealing with Mr. Arroyo have you ever had any concerns regarding competence regarding [Penal Code section] 1368, pursuant to [Penal Code section] 1368 in your dealings with him?” Defense counsel responded, “No. What discussions that we have had didn’t lead me to suspect a problem that way, but I will admit the refusal to read what I’ve sent him and his thought somehow that I wasn’t helping him is not maybe the most rational thought.”
Defendant stated he had attended school only through ninth grade. He had been involved in prior criminal proceedings only in juvenile hall. He had not had any difficulty reading the form he had initialed. He confirmed he did not “have any idea” what the role of the district attorney or the prosecutor in a trial was,” but stated, “I will learn when I go to the library, if I get a chance to go to the library and study hard.” He had never read any law books, and he did not know what it meant to subpoena witnesses, what his speedy trial rights meant, or what role witnesses played in a trial.
The trial court found that defendant’s request was timely and “for the most part” unequivocal. The court continued, “But also I have to find that you’re competent to waive your right to counsel,and it’s similar to the competency to stand trial, mental competence. And one thing if a psychologist were to examine you they would be investigating whether you understand the roles of different participants in the trial, the role of different courtroom personnel, the way that a case proceeds. And I’m not sure that you have the foggiest idea, quite honestly, about those things. And I am concerned that you’re not competent to represent yourself. That doesn’t mean whether I think that it’s wise or unwise. I think that even if I found it to be unwise, if I felt that you were competent to waive that right I would still have to do it. I would still have to allow you to.”
The trial court further questioned defendant and determined that defendant understood the purpose of the case was to “[d]efend [his] innocence,” but that defendant was unsure what “the other side’s purpose” was. The trial court stated, “All right. Unfortunately, Mr. Arroyo, I’m going to find that I don’t believe you’re competent to waive your right to counsel. I don’t believe that you’re exhibiting in this hearing at least that you have the—that you understand the nature and object of the proceedings against you to the extent that you have even the passing knowledge of the different participants in the trial, the purpose of the trial, your role in the case, the role of other participants, and I’m going to deny your request to represent yourself at this time.”
The trial court then addressed defense counsel: “[Defense counsel], where that leaves us, I’m mindful that essentially the standard is similar to a [Penal Code section] 1368 proceeding, but I think the questions that we would ask a psychologist/psychiatrist to evaluate were the issues that I think that he’s answered in court. I’m not sure that he does understand the proceedings based on the answers that he’s given. I’m toying with the idea of declaring a doubt on my own as to his mental competence. Your representations are that you haven’t had that concern in the past in dealing with him. I don’t know that he’s given you the same types of answers that he’s given the court here in today’s hearing.” Defense counsel replied that defendant was scheduled for a hearing the following day and asked the court “to just hold it until tomorrow.” Counsel continued, “I’m going to talk to him some more probably tomorrow and I’ll keep in mind the Court’s indication of competency in that.”
The trial court stated it would recall the matter the following morning, and defendant asked, “Am I going to be able to represent myself?” The trial court responded: “No. Based on the information that I’ve received at today’s hearing I don’t find you to be competent to represent yourself, and I’m going to deny your request at this time . . . .” (10/3 RT 18}
The next day, October 4, 2005, defendant’s counsel declared that based on his dealings with defendant, counsel had questions as to defendant’s competency and asked the court to suspend proceedings under section 1368. The trial court stated, “Based on some of the observations that the Court had yesterday, the Court had some concerns as well.” The trial court declared a doubt as to defendant’s competency, suspended proceedings, and appointed a medical commission to examine defendant under sections 1368 and 1369. The expert appointed to examine defendant concluded he was competent, and counsel submitted on the basis of the expert’s report. The trial court found defendant competent and reinstated the trial proceedings on November 8, 2005. Defendant never renewed his Faretta request.
2. Standard of Review
“Courts must ‘indulge every reasonable inference against waiver of the right to counsel.’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 933.) “In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo.” (People v. Dent (2003) 30 Cal.4th 213, 218.) We uphold the trial court’s ruling denying a Faretta motion “if the record as a whole establishes the defendant’s request was . . . properly denied on other grounds” even if the trial court denied the motion for an improper reason. (People v. Dent, supra, at p. 218.)
3. Analysis
a. Right to self-representation and requirement of competency to stand trial
“‘A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]’ [Citation.]” (People v. Stanley, supra, 39 Cal.4th at pp. 931-932.) However, a defendant’s ability to represent himself is not a proper consideration under Faretta. (People v. Welch (1999) 20 Cal.4th 701, 733.) “[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” (Godinez v. Moran (1993) 509 U.S. 389, 399, fn. omitted.)
Recently, in Indiana v. Edwards (June 19, 2008) __ U.S. __ [128 S.Ct. 2379, 171 L.Ed.2d 345], the United States Supreme Court clarified that it is permissible for a state to apply different standard to the determinations whether the defendant is competent to stand trial and whether the defendant is incompetent to represent himself. (Id. at p. 2386.) We requested the parties to provide additional briefing on the applicability of Indiana v. Edwards to the facts of this case. On consideration, we have determined that Indiana v. Edwards does not apply to our determination of the dispositive issue that the trial court had jurisdiction to rule on defendant’s motion.
b. Trial court’s jurisdiction to rule on Faretta motion
Defendant contends the trial court lost jurisdiction to rule on defendant’s Faretta motion because the trial court expressed a doubt as to defendant’s competency. Under Penal Code sections 1367 and 1368 and the 14th Amendment of the federal Constitution, a defendant may not be tried when he or she is mentally incompetent. (People v. Blair (2005) 36 Cal.4th 686, 711 (Blair).) “‘A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. [Citation.] When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citations.] “Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competence to stand trial.” [Citations.]’” (People v. Koontz (2002) 27 Cal.4th 1041, 1063-1064.)
“(a) A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).)
“(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.
Under section 1368, subdivision (c), “all proceedings in the criminal prosecution shall be suspended,” when an order for a hearing into the defendant’s competence has been issued. Thus, in People v. Horton (1995) 11 Cal.4th 1068, the court held that the trial court lacked jurisdiction to rule on the defendant’s motion to represent himself when the motion was made after a doubt had been declared as to the defendant’s competency to stand trial, and the court had appointed physicians to examine him. (Id. at p. 1109.) Here, in contrast, no order for a hearing into defendant’s present mental competence had yet issued, nor had the court or counsel expressed a doubt about defendant’s competence when the trial court ruled on defendant’s Faretta motion. We therefore conclude the trial court had jurisdiction to rule on that motion.
Defendant relies on People v. Dunkle (2005) 36 Cal.4th 861, 906-909 (Dunkle), among other authorities,to support his argument that the trial court lacked jurisdiction to rule on his Faretta motion. A close examination of the somewhat convoluted facts of Dunkle shows that Dunkle actually supports our conclusion that the trial court had jurisdiction when it ruled on defendant’s motion.
In Dunkle, a doubt had been declared in 1987 as to the defendant’s competency to stand trial. In May 1988, the trial court found defendant competent to stand trial. (Dunkle, supra, 36 Cal.4th at p. 881.) On June 15, 1988, the defendant moved to dismiss his attorneys under Marsden and further renewed his motion to represent himself under Faretta. (Dunkle, supra, at pp. 903-907.) At the hearing on the motions, defense counsel raised a doubt as to the defendant’s competency and requested the court to reinstitute competency proceedings. (Id. at pp. 903-904.) The trial court denied the motion to reopen the competency proceedings and granted the Marsden motion but denied the Faretta motion. (Dunkle, supra, at pp. 880-881, 904.) Thus, Dunkle supports the proposition that the mere expression of a doubt as to the defendant’s competency did not deprive the court of jurisdiction to rule on the Faretta motion (although the Dunkle court found that the trial court had erred in denying the motion because it applied the wrong legal standard). (Dunkle, supra, at pp. 908-909.) Later, in March 1989, the trial court did suspend the criminal proceedings at the request of the prosecution and defense and appointed physicians to determine the defendant’s competence. (Id. at p. 882.) While the criminal proceedings were suspended, the defendant stated in July 1989 that he no longer wished to represent himself. The court held that the defendant’s July 1989 disclaimer of his Faretta rights was not valid because criminal proceedings had then been suspended. (Dunkle, supra, at p. 909.) Ultimately, however, the court held that the Faretta errors had been waived because in October 1989, after the criminal proceedings had resumed, the defendant again stated he did not wish to represent himself. (Dunkle, supra, at pp. 908-909.)
Here, we further observe that defendant never renewed his Faretta motion after completion of the competency proceedings. As section 1368, subdivision (a) provides, when the court declares a doubt as to the defendant’s competency, the court must appoint counsel if the defendant is not represented. Thus, even if the trial court had granted the Faretta motion, it would have been required to re-appoint counsel when the competency proceedings began. However, defendant failed to renew his request for self-representation after the criminal proceedings were reinstated. (See People v. Stanley, supra, 39 Cal.4th at p. 933 [defendant abandoned his right to self-representation by allowing counsel to represent him without renewing his Faretta motion].)
We conclude there was no Faretta error.
B. Denial of Request for Substitution of Counsel
Defendant contends the trial court erred in denying defendant’s second Marsden motion to relieve and substitute counsel.
1. Additional Background
a. First Marsden motion
On July 25, 2005, defendant moved for substitution of counsel on the ground his appointed counsel, Philip Zywiciel, was “not representing [him] right, and he [was] not trying to help [him].” The trial court asked defendant to explain, and defendant stated that he had told Zywiciel that he (defendant) had been on drugs at the time of the charged offenses, but Zywiciel had responded that that would not constitute a defense. Zywiciel had advised defendant to accept a plea offer, which defendant conceded was not a bad offer, and had suggested that defendant obtain a “paid lawyer.”
Zywiciel responded that defendant had indicated he might try to retain counsel, and Zywiciel had told defendant that would be fine. Zywiciel explained that based on the damaging evidence of defendant’s admission to detectives that defendant had been a lookout, Zywiciel had advised defendant to consider cooperating with the prosecution and accepting something less than a life sentence. Zywiciel further explained that he did not believe a drug intoxication defense would be successful in light of defendant’s admissions, which had been corroborated by other witnesses. The court denied the Marsden motion, and defendant does not contest that ruling.
b. Second Marsden motion
On September 30, 2005, before the preliminary hearing, defendant brought his second Marsden motion. Defendant then complained he was not getting along with Zywiciel and that Zywiciel “was acting like a fool, nodding his head, yelling at me like I’m a little kid, and he called me stupid.” He claimed this had happened twice.
Zywiciel responded that when he had discussed with defendant the incriminating evidence of oral and written admissions, defendant had claimed that his was not the voice on the audiotapes and that he had not authored the written admission. Defendant refused to provide a handwriting exemplar, read the discovery, or listen to the audiotapes so as to assist in defending against the admissions. Zywiciel conceded he had been frustrated with defendant’s refusal to cooperate and might have called defendant stupid. He stated, “[Defendant] simply wants somebody who is not going to give him any bad news.”
The court asked defendant about the discovery Zywiciel had provided him, and defendant responded, “He mentioned it, but it ain’t me, so why should I hear them? I ain’t write nothing so why should I see what he’s trying to say I wrote, you know?”
The court found that despite frustrations on both sides, the relationship had not broken down such that Zywiciel could not properly represent defendant. Defendant stated he would refuse to talk to Zywiciel. The trial court denied the second Marsden motion.
2. Standard of Review
We review the trial court’s denial of a motion to substitute counsel for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) “Denial ‘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. [Citation.]’ [Citations.]” (Ibid.)
3. Analysis
The federal and state Constitutions guarantee a criminal defendant the effective assistance of counsel at all critical stages of a prosecution (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), and this includes the right to the appointment of counsel for indigent defendants. (Gideon v. Wainwright (1963) 372 U.S. 335, 344-345; Marsden, supra, 2 Cal.3d at p. 123.) “‘“‘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].’ [Citations.]”’ [Citation.]” (People v. Barnett, supra, 17 Cal.4th at p. 1085.) After the defendant has been afforded the opportunity to explain the grounds for his motion to substitute counsel, the trial court has discretion to deny the motion unless the defendant has made a sufficient showing of a substantial impairment of his right to counsel. (People v. Burton (1989) 48 Cal.3d 843, 855.)
Defendant’s specific complaints at the second Marsden hearing were based on defendant’s and Zywiciel’s mutual frustration stemming from defendant’s own failure to cooperate with Zywiciel. A defendant’s refusal to cooperate with appointed counsel does not warrant substitution of counsel. (People v. Walker (1976) 18 Cal.3d 232, 238, superseded by statute on other grounds as stated in People v. Polk (1982) 131 Cal.App.3d 764, 778.) “A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
Moreover, mere disagreement over trial tactics or strategy does not justify the appointment of a new attorney. (People v. Crandell, supra, 46 Cal.3d at p. 854.) Defendant’s complaint that Zywiciel was not helping him was too vague and general to justify the substitution of counsel. (People v. Horton, supra, 11 Cal.4th at p. 1103.) And heated words alone do not require substitution of counsel in the absence of an irreconcilable conflict. (People v. Smith (1993) 6 Cal.4th 684, 696.)
We conclude the trial court did not abuse its discretion in denying defendant’s Marsden motion.
C. Sufficiency of Evidence to Support Gang and Firearm Enhancements
Defendant contends the evidence was insufficient to support the jury’s true findings on the enhancement allegations under sections 12022.53, subdivisions (d) and (e)(1), and 186.22, subdivision (b)(1). Defendant argues that the evidence did not establish the required element of the gang allegation that specified crimes were primary activities of WSV; the gang expert’s opinion was merely a legal opinion unsupported by facts or reasons; the gang expert did not state that WSV was a criminal street gang at the time of the charged crime; and other evidence showed at most the occasional commission of the specified crimes.
1. Standard of Review
“‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) The reviewing court “must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) We do not reverse a conviction merely because circumstances might support or be reconciled with a contrary finding. (People v. Kraft (2000) 23 Cal.4th 978, 1054.) The same standards apply to true findings on enhancement allegations. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
2. Analysis
For purposes of the gang enhancement under section 186.22, subdivision (b)(1), and correspondingly for the firearm use enhancements under sections 12022.53, subdivisions (b), (d) and (e)(1), which incorporate a violation of section 186.22, subdivision (b), a criminal street as defined in section 186.22, subdivision (f) is “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in . . . subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Italics added.) The “primary activities” element requires proof of one or more of the offenses listed under subdivision (e), and the court must instruct which of the listed crimes are alleged to be primary activities. (See CALJIC No. 17.24.2; Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1401.)
Section 186.22, subdivision (b)(1) provides for enhanced punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .”
Section 12022.53, subdivision (b) provides for an “additional and consecutive” term of imprisonment of 10 years for any person who personally uses a firearm in the commission of specified felonies, including murder. Section 12022.53, subdivision (d), provides for an “additional and consecutive” term of imprisonment of 25 years to life for “any person who, in the commission of [specified felonies], . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice . . . .” Subdivision (e)(1) of that section provides that such enhancements shall apply when, among other things, a principal in the crime “violated subdivision (b) of Section 186.22.” (§ 12022.53, subd. (e)(1).)
“‘[E]ither prior conduct or acts committed at the time of the charged offenses can be used to establish the ‘primary activities’ element of the gang enhancement.’” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) In People v. Vy (2004) 122 Cal.App.4th 1209, for example, the court held that evidence of three serious and violent crimes over a period of less than three months before the charged crimes was sufficient to establish the primary activities element of a gang allegation. (Id. at p. 1225.)
However, as the People properly concede, a crime committed after the charged offense is not a predicate offense that may be used to establish the pattern of gang activity required under section 186.22, subdivisions (e) and (f). (People v. Duran (2002) 97 Cal.App.4th 1448, 1457-1458.) The burglary of which Chagolla and Agudo were convicted was committed on February 14, 2005, after the offenses with which defendant was charged. Thus, that burglary could not qualify as a predicate offense within the meaning of section 186.22.
We therefore examine the record to determine whether other evidence supported the primary activities element. The People argue that Officer Gaitan’s expert testimony provided substantial evidence to satisfy that element. In People v. Gardeley (1996) 14 Cal.4th 605, 611, 620, the court held that the primary activity finding was supported by the testimony of a police gang expert who testified as to his opinion that the primary activities of the gang were drug dealing and witness intimidation, both crimes listed in section 186.22, subdivision (e). In Sengpadychith the court elaborated, “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement activities. [Citation.]” (Sengpadychith, supra, 26 Cal.4th at p. 324.)
As the court explained in People v. $47,050 (1993) 17 Cal.App.4th 1319, 1325, “[a]lthough an expert’s opinion on an ultimate fact is admissible, and may constitute substantial evidence [citation], the conclusion by itself does not constitute substantial evidence without an adequate factual foundation. [Citation.]” (Fn. omitted.) “Substantial evidence is evidence that is reasonable in nature, credible, and of solid value. [Citation.] While it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the historical facts [citation], expert . . . opinion evidence that is based upon a ‘“guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence.”’ [Citations.]” (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504.)
Here, to the extent Officer Gaitan’s testimony that WSV was a criminal street gang was based merely on his reading of the offenses enumerated in the statute, his opinion testimony falls far short of that described in Sengpadychith and was thus more like that found insufficient in In re Alexander L. (2007) 149 Cal.App.4th 605. There, the court held that an expert witness’s conclusionary testimony that he “‘kn[e]w’ that the gang had been involved in certain crimes” was not substantial evidence as to the nature of the gang’s primary activities. (Id. at pp. 611-612.) The court noted that “[n]o specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert witness] had obtained the information.” (Ibid.; see also In re Jose T. (1991) 230 Cal.App.3d 1455, 1462 [“[c]onclusional testimony that gang members have previously engaged in the enumerated offenses” was insufficient to prove the element of a pattern of committing specified crimes.]; In re Leland D. (1990) 223 Cal.App.3d 251, 258-259 [gang expert’s testimony, based on “nonspecific hearsay and arrest information” that members of a gang had sold drugs and committed vehicle thefts and assaults was not substantial evidence to establish a pattern of criminal activity].)
Officer Gaitan testified that as part of his duties as a member of the police department gang unit, he “ma[d]e [him]self aware of the activities of a gang, as far as what their habits are, their patterns, by discussing things with known gang members[.]” He was familiar with WSV and had received some training specific to that gang. Officer Gaitan testified he was familiar with the list of offenses in section 186.22, subdivision (e). The following exchange occurred:
Without more, Officer Gaitan’s opinion testimony would not constitute sufficient evidence to support the gang allegation. However, Officer Gaitan provided additional relevant testimony, and other circumstantial evidence in the record provides a basis for a reasonable jury to find that the gang allegation was true.
Officer Gaitan testified about activities of WSV: “[T]hey’ll cli[que] up together. They will commit crimes. They’ll go on crime sprees as minor as battery, to robbery, to carjacking, as severe as homicide. I’ve seen it all.” He specifically testified he had read reports of those types of crimes committed by WSV members.
In addition, Cruz’s stabbing of Ramirez, Gutierrez’s witness intimidation or threat uttered to Ramirez, the unlawful driving of a vehicle, Night Owl’s shooting into an inhabited dwelling, and the murder of Woods could have qualified as primary activities under section 186.22, subdivision (e). (Sengpadychith, supra, 26 Cal.4th at p. 323.) Defendant counters that the evidence showed “at most only the occasional commission of these crimes,” and the evidence did not show that WSV was a gang within the statutory definition at the time of the charged murder because Officer Gaitan stated his opinion that WSV was a criminal street gang in the present tense.
With respect to the contention that the evidence showed only occasional commission of predicate crimes rather than a pattern of criminal activity, we note that the court held in People v. Vy, supra, 122 Cal.App.4th at page 1225, that evidence of three serious and violent crimes over a period of less than three months before the charged crimes was sufficient to establish the primary activities element of a gang allegation. (Ibid.) The charged murder could qualify as a predicate offense to establishing the primary activities element and pattern of criminal activity. (Sengpadychith, supra, 26 Cal.4th at p. 323.) In addition, Cruz’s and Gutierrez’s crimes on October 1, 2004, in combination with Officer Gaitan’s testimony about WSV’s crime sprees of battery, robbery, carjacking, and homicide, provided a sufficient basis from which a reasonable jury could find the gang’s primary activities and a pattern of criminal activity.
With respect to the contention that the evidence did not show that WSV was a criminal street gang within the meaning of the statutory definition at the time of the charged murder, we note that Officer Gaitan testified he had grown up in San Bernardino and had known of WSV “ever since [he] was a kid,” and that WSV had “always been around in the City of San Bernardino.” A reasonable jury could have determined that WSV had been a criminal street gang when the murder was committed.
Viewing the evidence in the light most favorable to the prosecution and drawing all rational inferences in favor of the judgment, we conclude the evidence was sufficient to establish the primary activities prong of the enhancement allegations. (People v. Jones, supra, 51 Cal.3d at p. 314.)
D. Instructions on Gang Enhancements
Defendant further contends, however, that the trial court prejudicially erred in instructing the jury that it could find true the gang enhancement allegation under section 186.22, subdivision (b)(1) (and correspondingly, the allegation of firearm use by a principal under section 12022.53, subdivisions (b), (d) and (e)(1)) based on crimes committed by gang members after the charged offenses.
1. Additional Factual Background
In closing argument, the prosecutor discussed the definition of a criminal street gang, and specifically, the element of a pattern of criminal activity: The prosecutor argued, “You’ve been given examples of two criminal acts that West Side Verdugo commits, that’s burglary and murder. . . . [¶] The pattern of criminal gang activity has a specific meaning as well. It means the commission or the attempt to commit two or more of the crimes that we’ve talked about, namely, burglary and murder. The law says that these crimes have to be committed after a certain date and that the last one has to be within three years of any one of the priors.” (Italics added.) The prosecutor continued, “You also have Exhibits 202 and 203. Recall that there has to be a pattern of criminal activity that’s shown. Well, that’s what these assist you in seeing. These are certified prior convictions of two other members of West Side Verdugo. Recall these were brought up during the testimony of Officer Gaitan. They show convictions of burglaries and they were within three years and the crime was a year ago.”
The jury was instructed, “‘“Pattern of gang activity” means the commission of or attempted commission or conviction of two or more of the following crimes; namely, burglary and murder, provided at least one of those crimes occurred after September 26th, 1988, and the last of those crimes occurred within three years after a prior offense and the crimes were committed on separate occasions or by two or more persons.
“‘The phrase “primary activities” as used in this allegation, means that the commission of one or more of the crimes identified in the allegation be one of the group[’]s chief or principal occupations. This would of necessity exclude the occasional commission of identified crimes by the group’s members.
“‘In determining this issue, you should consider any expert opinion evidence offered, as well as evidence of the past or present conduct by gang members involved in the commission of one or more of the identified crimes, including the crime charged in this proceeding. . . .’”
2. Analysis
As discussed above, crimes committed after the charged crime may not be used to establish the primary activity element of the gang enhancement. (People v. Duran, supra, 97 Cal.App.4th at p. 1458.) However, the jury instructions erroneously permitted the jury to conclude that the Chagolla/Agudo burglary was a predicate offense because the jury instructions named burglary as one of the possible predicate offenses, and the jury instructions failed to inform the jury that crimes committed after the charged offenses could not be considered predicate offenses.
The People argue, however, that the instructional error was harmless. The People base their argument on, among other authorities, People v. Swain (1996) 12 Cal.4th 593, 607, in which the court held that when a jury is presented with alternate theories, one of which is legally incorrect, reversal is required unless the reviewing court can find, beyond a reasonable doubt, that the error did not contribute to the verdict. Here, it does not appear that the jury was instructed on alternate theories; rather, the jury was instructed only with respect to burglary and murder as the predicate offenses. Thus, People v. Swain is not helpful to our analysis, other than in establishing the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, as the governing standard of review.
The People further argue there was ample evidence of the predicate acts establishing the pattern of gang activity as to all counts. As discussed above, we have concluded that the record contains sufficient evidence from which a properly instructed jury could have found the gang allegation true. However, the issue is not whether a properly instructed jury could have found true the gang allegation, but whether we can say, beyond a reasonable doubt, that the error did not contribute to the verdict. (See People v. Lewis (2006) 139 Cal.App.4th 874, 884.)
Here, we must assume the jury understood and followed the instructions given (People v. Hovarter (2008) 44 Cal.4th 983, 1005), and those instructions identified only burglary and murder as predicate offenses. The prosecutor reinforced the error in his argument to the jury by relying exclusively on the burglary and murder as predicate offenses. Thus, we necessarily conclude that the error was prejudicial, and that the gang and firearm enhancements must be reversed.
E. Corrections to Record
1. Presentence Custody Credit
Defendant contends he is entitled to an additional day of presentence custody credit. The People correctly concede error.
Defendant was granted 465 days of presentence custody credit for the time he served from the day of his arrest (March 15, 2005) through the day of his sentencing (June 23, 2006). Defendant was in fact entitled to 466 days of custody credit. (People v. Taylor (2004) 119 Cal.App.4th 628, 645 [defendant receives custody credit for day of arrest and day of sentencing, even if partial days].) We will therefore order the judgment and abstract of judgment to be modified accordingly.
2. Correction of Sentencing Minutes
Defendant contends the sentencing minutes should be corrected to delete a reference to life without the possibility of parole. The People correctly concede error.
In oral pronouncement of judgment, the trial court sentenced defendant to consecutive terms of 25 years to life for the first degree murder and firearm enhancement and stated, “this may be followed by a period of parole for life.” However, the sentencing minute order states that the 25-year-to-life term for the murder was without the possibility of parole.
“[A] discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.” (People v. Mesa (1975) 14 Cal.3d 466, 471.) Thus, the minutes must be corrected to reflect that the sentence for murder was 25 years to life with the possibility of parole. (The abstract of judgment correctly states that defendant was sentenced to 25 years to life with the possibility of parole for the murder.)
3. Correction of Abstract of Judgment
The People also request that the abstract of judgment be corrected to reflect a consecutive term of 25 years to life for the section 12022.53, subdivision (d), enhancement. Because we have concluded that the true findings on the enhancement allegations must be reversed, the People’s contention is moot.
IV. DISPOSITION
The enhancements under section 186.22, subdivision (b) and 12022.53, subdivision (b), (d) and (e)(1) are reversed. The abstract of judgment shall be corrected to grant defendant 466 total days of presentence custody credits. The trial court
minutes shall be corrected to reflect that defendant was sentenced to 25 years to life with the possibility of parole for the murder. In all other respects, the judgment is affirmed.
We concur: MCKINSTER, J., RICHLI, J.
This court previously consolidated the appeals of defendant and Cruz for purposes of briefing, oral argument, and opinion, but we later severed their appeals.
In addition, defendant provided a supplemental letter brief citing Moore v. Haviland (6th Cir. 2008) 531 F.3d 393, in which a federal appellate court affirmed the granting of habeas relief based on the trial court’s failure to entertain the defendant’s Faretta request. In response, the People filed a supplemental reply brief. We find Moore v. Haviland distinguishable. In that case, the trial court failed to exercise its discretion to rule on the Faretta request. (Moore v. Haviland, supra, at p. 403).
“(b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. . . .
“(c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined. . . .” (§ 1368.)
“Q Looking at, in your mind, that list, is it your opinion, based upon your training and experience, as to whether or not West Side Verdugo is a criminal street gang?
“A Yes, it is my opinion that West Side Verdugo is a criminal street gang.”