Opinion
F049341
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. STEVEN LOUIS RICHARDS, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On July 26, 2005, a first amended information was filed in the Superior Court of Stanislaus County charging appellant Steven Louis Richards with count I, first degree burglary (Pen. Code, § 459); count II, attempted burglary (§ 664/459); count III, second degree burglary; count IV, passing an altered or forged check (§ 470, subd. (d)); and count V, misdemeanor resisting arrest (§ 148).
All further statutory citations are to the Penal Code unless otherwise indicated.
As to counts I, II, III and IV, it was alleged appellant suffered eight prior strikes (§ 667, subds. (b)-(i)). As to counts I and II, it was further alleged appellant suffered two prior serious felony conviction enhancements (§ 667, subd. (a)). Appellant pleaded not guilty and denied the special allegations.
On October 18, 2005, appellant waived a jury trial on the special allegations and the court bifurcated the matter; thereafter, appellants jury trial began. On October 20, 2005, appellant was convicted as charged. On October 21, 2005, the court found the special allegations true.
On November 28, 2005, appellant requested appointment of conflict counsel to file a motion for new trial based on ineffective assistance. The court denied the motion.
On November 30, 2005, the court denied appellants request to dismiss his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and imposed an aggregate term of 95 years to life: as to count I, the third strike term of 25 years to life, with two consecutive five-year terms for the prior serious felony enhancements; as to count II, a consecutive term of 25 years to life, with two consecutive five-year terms for the enhancements; and in count III, another consecutive term of 25 years to life. As to count IV, the court imposed and stayed the term of 25 years to life pursuant to section 654, and as to count V, a concurrent term of one year in jail.
On December 5, 2005, appellant filed a timely notice of appeal.
FACTS
Appellant was charged and convicted of multiple felonies based on the following incidents.
Counts I, III & IV
Diane Castillo lived next to Robert and Anna Williams, on East Fairmont in Modesto. Around 9:00 a.m. on Saturday, July 10, 2004, Ms. Castillo was taking things from her car into her house, when she saw a man walk out of the Williams backyard. The man walked out of the Williams side gate, turned around, looked at Ms. Castillo, and then went back through the gate and returned to the Williams backyard. He was carrying a partially-filled black garbage bag. Castillo decided to call the police because she knew Mr. and Mrs. Williams were out of town and she did not recognize the man.
Modesto Police Officer Curtis Musto responded and spoke to Ms. Castillo, who stated she was about 80 feet away from the suspect and described him as a Hispanic in his 20s, about five foot seven inches tall, 190 pounds, and wearing baggie jeans, a Pendleton shirt, and a baseball cap. Officer Musto went to the Williams house. No one was there, but the gate was ajar and the back door was kicked in. The door led to the garage, and the garage was attached to the house. Officer Musto walked through the house and determined it had not been ransacked and nothing appeared to be disturbed.
Sometime between 1:00 p.m. and 2:00 p.m. that day, appellant walked into the Money Mart check-cashing office in Modesto. Appellant presented the clerk, Mri Carmen Hernandez, with check No. 2056 from the account of "Robert S. Williams" and "Anna V. Williams." The check was written out to appellant, and signed by Mr. Williams. Appellant also presented a valid California photographic identification (ID).
The amended information alleged the amount of the check was $200.
Ms. Hernandez testified appellant presented the check to her. It was already filled out and he did not write anything on the check in her presence. She did not know if he had signed the back of it. Ms. Hernandez asked appellant what the check was for. Appellant said he had done "a side job for the maker, like you work for, like, somebody on the job, under the table," and that he did it for the people named on the check. He did not specifically say the names of the people he worked for.
Ms. Hernandez determined appellant had probably cashed checks there before because his name was in Money Marts computer system. Ms. Hernandez testified she did not have any formal handwriting expertise, she did not have any training in handwriting analysis as part of her job, and she was not familiar with appellants handwriting. Nevertheless, Ms. Hernandez testified the check did not look right to her, because the handwriting on the check seemed similar to appellants signature on the photo ID. She thought the words "side job" were written in the checks memo line, which she also thought was unusual.
Ms. Hernandez made a copy of the check and appellants photo ID, and then followed the companys policy and called the telephone number on the check to confirm the maker had written the check to the named party. Ms. Hernandez reached a telephone answering machine, and left a message that she was trying to confirm the check. She then returned to the counter and advised appellant that she could not cash the check because she could not confirm the check with the maker. Appellant became very angry and yelled at Ms. Hernandez, and asked why they did not cash the check because he had his ID. He took the check and his identification and "stormed" out.
A few minutes later, appellant returned to the Money Mart and again asked to cash the check. Ms. Hernandez again called the telephone number on the check, reached a telephone answering machine, left a message, and advised appellant that she could not cash the check because she could not confirm it with the maker. Appellant again became angry, grabbed the check and his identification, and left.
On Sunday, July 11, 2004, Anna Williams and her children returned to their house and they were immediately intercepted by Ms. Castillo, who told them that someone broke into the house. Mrs. Williams and another neighbor walked through the house. Mrs. Williams discovered the toilet was running, the shower curtain had been moved, and a package of her husbands socks had been moved from a drawer onto their bed; nothing else was disturbed. Mr. Williams arrived home later and called the police. The police again walked through the house with Mr. and Mrs. Williams, and they thought that nothing had been taken or damaged, aside from the backdoor.
After the police left, Mr. Williams played the messages on their telephone answering machine, and heard the message from the Money Mart to verify a check written to "Steven Richards." Mr. and Mrs. Williams went through their house again and discovered their checkbook was missing. They also discovered the jewelry had been removed from Mrs. Williams jewelry box, and a new package of mens T-shirts had been taken from the bedroom.
On Monday, July 12, 2004, Mr. and Mrs. Williams went to the bank and closed their account. Next, they went to the Money Mart, and received a copy of the check and photographic ID which appellant presented. Mr. Williams examined the copy of the check, and testified that he did not write or sign the check. Mrs. Williams thought the writer had misspelled "Williams." Mr. and Mrs. Williams did not know appellant and had not hired him to work for them.
Mrs. Williams believed she showed Ms. Castillo the copy of the check and photo ID which they obtained from Money Mart, but could not remember exactly when that conversation occurred. Mr. Williams testified that after they returned from Money Mart, he spoke with Ms. Castillo and showed her the copy of the check and the photo ID. Mr. Williams testified that Ms. Castillo looked at the photo ID "and said that that was definitely him."
Mr. and Mrs. Williams gave the photocopy of the check and appellants photo ID to the police. The police department issued an "information and belief" warrant for appellant, that he was wanted for burglary and forgery. Mrs. Williamss jewelry was not recovered.
At trial, Ms. Castillo identified appellant as the person who walked out of the Williams backyard with the plastic bag. Ms. Castillo testified she was about 25 to 30 feet away from appellant, she made eye-contact with him, she had a clear view of him, and she got a good look at him. Ms. Castillo testified that about a week after the incident, an officer showed her a photographic lineup and she identified appellant.
Ms. Castillo testified that Mr. and Mrs. Williams showed her the copy of the check and photo ID they obtained from the Money Mart, but she could not remember if that occurred before or after she looked at the officers photographic lineup.
"Q. Do you remember if you saw that check and identification before you pointed to the photographs [in the lineup]?
"A. I really honestly cant remember, but I do remember when I saw this, it didnt look anything like the picture I had picked out in that here, he didnt—he doesnt look like the same person, to me, it looks darker and is just different."
Ms. Williams recalled that she saw the copy of the forged check and photo ID, which were on one piece of paper.
"Q. So when you saw the check, you were able to see the identification at the same time, right?
"A. Its not something that I concentrated on. I didnt really concentrate on it, to be quite honest with you."
Ms. Castillo testified her trial identification of appellant was based on her observations of him when he walked out of the Williams backyard, and not because she saw the copy of his photo ID. "Its because I saw him. Its not the ID. I have not paid any attention to that at all."
Based on this incident, appellant was charged and convicted with count I, first degree burglary of the Williams residence, count III, second degree burglary, based on appellants entry of the Money Mart store to cash a forged check, and count IV, passing an altered or forged check.
Counts II & V
Around 11:00 p.m. on July 22, 2004, Mr. and Mrs. Clarendon Hetrick were in bed at their home in Modesto when they heard someone knock at their front door, open the unlocked screen door, and try to open the front door latch. Mrs. Hetrick did not open the door but looked through a window. There were no lights on inside the house, but the area outside the front door was well-illuminated. Mrs. Hetrick saw a man walk away from the door, pushing a bicycle toward her neighbors house. Mrs. Hetrick believed the man left, so she went back to bed.
About four or five minutes later, Mrs. Hetrick again heard someone try to open the front door handle. Mr. Hetrick then thought he heard someone in the backyard. Shortly afterwards, they heard someone try to open the backdoor handle, followed by a squeaking sound as if someone was trying to open a screen. They next heard someone repeatedly bang on their metal back door, as if trying to kick it down.
Mrs. Hetrick immediately called the police. The loud banging continued as she was on the telephone with the emergency operator, who commented that she could also hear the loud banging. Mr. Hetrick grabbed his revolver, cocked the trigger, and waited next to the backdoor as the loud banging continued. The backyard was highly illuminated but Mr. Hetrick could not see who was standing at the door.
Officers Rigo Dealba and Matthew Spurlock arrived at the Hetricks house within minutes of Mrs. Hetricks telephone call. The officers were in uniform. As they approached the residence, they could hear loud banging coming from the backyard.
The officers cleared the front yard of any suspects, looked over the fence, and saw appellant standing by the back door. Officer Dealba pulled his service revolver, opened the fence gate, identified himself, and ordered appellant to get on the ground. Appellant replied that he did not do anything. Officer Dealba realized appellant was holding a rock in his right hand, and appellant "cocked the rock back as if he was gonna throw it." Officer Spurlock also drew his gun and testified appellant spun and raised the rock as if he was going to throw it. Officer Dealba repeatedly ordered appellant to drop the rock and get on the ground. Appellant lowered his arm but held onto the rock. Officer Dealba told him to drop the rock several more times, and appellant finally dropped the rock.
Both officers repeatedly ordered appellant to the ground. Officer Dealba returned his weapon to his holster but Officer Spurlock continued to hold his weapon on appellant. Appellant ignored their commands to get on the ground, and instead raised up his clenched fists in a fighting stance, and started to walk toward the officers. Spurlock thought appellant was going to come at him.
Officer Dealba approached appellant and tried to take him into custody. Officer Spurlock testified appellant "started to tussel" and his arms were "going in a punching manner, just resisting altogether." Officer Dealba punched appellant in the face, and Officer Spurlock used his baton and hit appellants lower leg twice. The officers used their body weights to bring down appellant, and handcuffed his arms behind his back.
Appellant had identification in his possession, which stated that he was 38 years old. Appellant was about five foot six inches tall and 200 pounds. Appellant had a backpack which contained food, clothes, and three watches. The officers found a bicycle by the house.
Mr. and Mrs. Williams later looked at these watches but the items had not been taken from their house.
The police asked Mr. and Mrs. Hetrick to look at appellant, and Mrs. Hetrick recognized him as the man who was at the front door. Mrs. Hetrick testified appellant was yelling, "`I didnt do anything." The Hetricks did not know appellant. There were large scratches on the backdoor. The Hetricks determined appellant had used a large grinding stone from their backyard rock collection to pound on the backdoor.
The officers took appellant into custody and placed him in the patrol car. Officer Spurlock noticed a man on a bicycle, riding across the street from the Hetricks house. The man rode up to another patrol car and looked inside. Spurlock asked what he wanted. The man, later identified as either Robert or Michael Wren, said he saw the police cars and just wanted to check it out. The man had on bulky clothes and acted weird. Spurlock asked if he could conduct a pat-down search for weapons, and the man agreed. Spurlock found a revolver in the mans pocket. The officers did not discover any information to connect appellant and Wren.
The officers took appellant to the hospital for medical clearance because of their use of force. Officer Dealba testified appellant made some statements without being questioned. Appellant said "that we had nothing on him because—or the only thing we had on him was trespassing because there wasnt any damage to the door and that he was just looking for a place to pee."
"Q. Did he also mention something about trying to get away from a guy named Mike who had a gun?
"[OFFICER DEALBA]: No.
"Q. Do you remember him saying anything about that at all?
"A. No."
Officer Dealba advised appellant that he was under arrest for the incident at the Hetricks house, and that there was an "information and belief" warrant on him for burglary at a residence on East Fairmont and forgery at the Money Mart. Dealba did not know anything about the other incident, and simply read the "information and belief" warrant to appellant. Appellant said "he had a check that he tried to cash at the Money Mart the friend gave him, but they wouldnt cash it, he left with the check, but didnt have it anymore." Appellant never identified his friend.
Based on this incident, appellant was charged and convicted of count II, attempted burglary, and count V, misdemeanor resisting arrest.
The court found he suffered eight prior strike convictions and two prior serious felony enhancements, and he was sentenced to the third strike term of 95 years to life. On appeal, he raises several issues of alleged instructional error. Appellant also contends the court improperly denied his motion to dismiss his prior strike convictions, his indeterminate term constitutes cruel and/or unusual punishment, and his prior juvenile adjudications could not be used to impose the prior serious felony enhancements. Finally, he asserts the court improperly denied his postconviction motion for new trial.
Appellant concedes he did not object to any of the instructions which he now challenges on appeal. An appellate court may review any instruction given, even though there was no objection made in the trial court, if substantial rights of the defendant are affected, "i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; § 1259.) As we will explain post, appellant contends the purported instructional errors affected his substantial rights, and we will thus review appellants appellate contentions.
DISCUSSION
I.
CALJIC No. 2.71
Appellant contends that CALJIC No. 2.71, admissions defined, violated his right to due process because it improperly singled out the statements of a single witness for the jurys consideration, and raised inferences of guilt favorable to the prosecution.
The jury herein was given CALJIC No. 2.71, which states:
"[An admission is a statement made by a defendant, which does not by itself acknowledge guilt of a crime(s) for which the defendant is on trial, but which statement tends to prove guilt when considered with the rest of the evidence.
"You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.
"Evidence of an oral admission of the defendant not made in court should be viewed with caution.]"
"[A]n admission simply is any extrajudicial statement—whether inculpatory or exculpatory—`which tends to prove [a defendants] guilt when considered with the rest of the evidence. [Citation.]" (People v. Mendoza (1987) 192 Cal.App.3d 667, 676, fn. omitted (Mendoza), quoted with approval in People v. Garceau (1993) 6 Cal.4th 140, 179-180, Garceau criticized on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; People v. Vega (1990) 220 Cal.App.3d 310, 317-318 (Vega).) When evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200 (Slaughter).) "The rationale behind the cautionary instruction suggests it applies broadly. `The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.] This purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime." (People v. Carpenter (1997) 15 Cal.4th 312, 392-393; People v. Livaditis (1992) 2 Cal.4th 759, 784.) Thus, when there is substantial evidence of an oral admission, the trial court has a sua sponte duty to instruct the jury with CALJIC No. 2.71, to view the evidence with caution. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.)
"In light of the definition of `admission, if the jury determines a statement does not tend to prove guilt when considered with the other evidence, it is not an admission. The cautionary language instructs the jury to view evidence of an admission with caution. By its terms, the language applies only to statements which tend to prove guilt and not to statements which do not." (Vega, supra, 220 Cal.App.3d at p. 317, italics in original.)
"We recognize it is not uncommon that a single statement may tend to prove guilt or innocence, depending upon the state of the remaining evidence and the issue for which it is being considered. Many times extrajudicial statements of defendants, especially when made in the context of questioning by authorities, have the purpose of asserting innocence. Although a statement when made may not be incriminating, when considered with the rest of the evidence at trial it may nevertheless be viewed as an admission. For example, a defendants statement denying participation in a crime may create an inference of incredibility or consciousness of guilt when considered along with other evidence connecting the defendant with the crime. That same statement may be purely exculpatory when considered in the absence of that other evidence. [Citation.] Similarly, a statement by a defendant purportedly giving an innocent explanation of the circumstances may be so implausible that it is incredible, thereby tending to prove guilt. Yet the implausible explanation may still be relied upon as a defense." (Vega, supra, 220 Cal.App.3d at pp. 317-318, italics in original.)
"We are convinced a jury is capable of discerning whether an extrajudicial statement is an admission, which they are instructed to view with caution, or whether the statement is not an admission, to which the cautionary language does not apply." (Vega, supra, 220 Cal.App.3d at p. 318.) The effect of the instruction is thus beneficial to the defendant, as courts have long recognized the dangers and abuses inherent in evidence of verbal admissions. (People v. Frye (1998) 18 Cal.4th 894, 959.)
For example, in Mendoza, the defendant made exculpatory statements to arresting officers tending to establish an alibi, but the prosecutions independent evidence discredited that alibi. The trial court instructed the jury with CALJIC No. 2.71 over defendants objection that his statements were not admissions. (Mendoza, supra, 192 Cal.App.3d at pp. 672, 675.) Mendoza held the instruction was properly given, and explained that an admission need not be against the defendants interest when made:
"... First, a statement does not have to be offered for its truth to be accepted as an admission. Second ... there is no magic in determining whether a particular statement tends (or does not tend) to prove ones guilt. The jury, as factfinder, is perfectly equipped to make such determinations based on the existing CALJIC instructions without further explanation by the court." (Mendoza, supra, 192 Cal.App.3d at p. 676, fn. 3.)
Mendoza held defendants statements were properly characterized as admissions:
"Although ... [the defendants] statements were not admissible as hearsay statements because they were not offered for the truth of the matters asserted, those statements were properly characterized as admissions since an admission simply is any extrajudicial statement—whether inculpatory or exculpatory—`which tends to prove his guilt when considered with the rest of the evidence. [Citation.] Because appellants statements were admissions the court did not err in giving CALJIC Nos. 2.71 and 2.72." (Mendoza, supra, 192 Cal.App.3d at pp. 675-676, italics added, fn. omitted.)
Vega addressed a similar situation, where the defendant argued that his statements were both inculpatory and exculpatory, and CALJIC No. 2.71 should not have been given because it prejudicially told the jury to view his exculpatory statements with caution. (Vega, supra, 220 Cal.App.3d at pp. 317-318.) Vega rejected the argument and found that since the instruction defined an admission as a statement tending to prove guilt, "a jury is capable of discerning whether an extrajudicial statement is an admission, which they are instructed to view with caution, or whether the statement is not an admission, to which the cautionary language does not apply." (Vega, supra, 220 Cal.App.3d at p. 318.)
Appellant contends that the "consciousness of guilt" language in CALJIC No. 2.71 improperly singles out the testimony of a single witness and violates his due process rights. Appellant relies on People v. Wright (1988) 45 Cal.3d 1126 (Wright ), and argues the California Supreme Court has disapproved of instructions which pinpoint the testimony of a single witness. (Id. at pp. 1135-1136 & fn. 6.) In People v. Kelly (1992) 1 Cal.4th 495 (Kelly), however, the court rejected the argument that the "consciousness of guilt" instructions must be reassessed in light of Wright. Kelly held that a "consciousness of guilt" instruction "tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. [Citation.] Defendant obviously does not quarrel with the emphasized language. If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction." (Kelly, supra, 1 Cal.4th at pp. 531-532; see also People v. Arias (1996) 13 Cal.4th 92, 142 (Arias).)
In People v. Jackson (1996) 13 Cal.4th 1164 (Jackson), the court similarly rejected the argument that Wright invalidated the "consciousness of guilt" instructions as improper pinpoint instructions in violation of due process. (Id. at pp. 1223-1226.)
"In the present case, each of the four instructions made clear to the jury that certain types of deceptive or evasive behavior on a defendants part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendants guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that these consciousness-of-guilt instructions did not improperly endorse the prosecutions theory or lessen its burden of proof." (Jackson, supra, 13 Cal.4th at p. 1224.)
Appellant acknowledges the ruling in Jackson, but asserts the court therein used circular reasoning, and this court should follow the reasoning in Chief Justice Birds dissent in People v. Saddler (1979) 24 Cal.3d 671, which presents the better view on "consciousness of guilt" instructions. We are not at liberty to ignore Supreme Court precedent, and decline to reject Jackson, Kelly, and Arias in favor of an earlier dissent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
In the instant case, the entirety of the record supports the trial courts decision to give CALJIC No. 2.71, even though appellants pretrial statements were not direct or express admissions of guilt. At the instructional conference, appellant did not object to CALJIC No. 2.71, but disagreed with the prosecutors assertion that his statements were admissions "with regard to intent to burglarize" the Hetricks house. However, appellants statements were ambiguous or even neutral under the circumstances of this case. Ms. Hernandez testified appellant appeared at the Money Mart with a check from Mr. and Mrs. Williams bank account, and claimed he received the check for doing a "side job" for the maker of the check. Mr. Williams testified their checkbook had been stolen, he did not write the check which appellant presented to the Money Mart, he did not know appellant, and he did not hire appellant to do any work for him. While appellant did not specifically identify Mr. or Mrs. Williams as his employers, the jury could have inferred from Ms. Hernandezs testimony that appellant presented the check because he did some work for the people who wrote the check.
As for the incident at the Hetricks house, appellant knocked on the front door, received no response, tried to open the front door, and then used a large rock to try and knock down the back door. Officer Dealba testified appellant made statements after his arrest, without being questioned, that "we had nothing on him because—or the only thing we had on him was trespassing because there wasnt any damage to the door and that he was just looking for a place to pee." When Officer Dealba advised him that he was being arrested for the "information and belief" warrant for the East Fairmont burglary and the Money Mart forgery, appellant said "he had a check that he tried to cash at the Money Mart the friend gave him, but they wouldnt cash it, he left with the check, but didnt have it anymore."
The circumstances of appellants statements raised factual questions as to whether they could be construed as admissions, i.e., that they tended to prove his guilt when considered with the rest of the evidence. Appellants statements could have been interpreted as his attempts to distance himself from the offenses, which would have constituted evidence of consciousness of guilt. Appellant told Ms. Hernandez he received the check for doing a side job for the people who wrote the check; when he was advised that he was being arrested for burglary and forgery, he claimed he received the stolen and forged check from someone else. Appellant tried to open the front door at Mr. and Mrs. Hetricks house and used a large stone to repeatedly pound against the back door, conduct consistent with trying to break into the house, but claimed the officers had nothing on him except for trespassing and he was only trying to find a place to relieve himself.
Respondent makes the curious observation that appellants statements were not admissions. The entirety of the record, however, clearly raised the factual question for the jury to resolve as to whether appellants statements were admissions when considered with the rest of the evidence at trial.
Even if the trial court erred by giving CALJIC No. 2.71, any error was harmless. CALJIC No. 2.71 told the jury that any out of court statement made by appellant should be viewed with caution, that the jury was the exclusive judge of whether appellant made the admission and, if so, whether it was true, such that the inference of guilt suggested by CALJIC No. 2.71 was a permissive one. (See, e.g., People v. Rankin (1992) 9 Cal.App.4th 430, 436 (Rankin).)
"[CALJIC No. 2.71] ... defined an admission as an out-of-court statement by defendant `which tends to prove guilt. `In light of the definition of "admission," if the jury determines a statement does not tend to prove guilt when considered with the other evidence, it is not an admission. The cautionary language instructs the jury to view evidence of an admission with caution. By its terms, the language applies only to statements which tend to prove guilt and not to statements which do not. [Citation.] `Juries understand that this instruction by its terms applies only to statements tending to prove guilt, not to exculpatory ones. To the extent a statement is exculpatory it is not an admission to be viewed with caution. [Citation.] [Citation.]" (Slaughter, supra, 27 Cal.4th at p. 1200, italics in original.)
Thus, a defendant could not be prejudiced "by the erroneous giving of the instruction to view his admissions with caution." (Slaughter, supra, 27 Cal.4th at p. 1200.) The jury was also given CALJIC No. 17.31, that it should disregard any instructions that were inapplicable to the facts, and we presume the jury followed the courts directive. (People v. Waidla (2000) 22 Cal.4th 690, 725 (Waidla).)
Appellant asserts that if CALJIC No. 2.71 was improperly given, the error is prejudicial because the evidence against him was weak. Appellant asserts Ms. Castillos trial identification was not strong because her initial description of the suspect, as an Hispanic in his 20s, did not match appellants appearance as a non-Hispanic who was 38 years old; she described the suspect as wearing baggie jeans, a Pendleton shirt, and a cap, and "there was no evidence he had ever worn baggy denim jeans, a Pendleton, or a cap." Appellant asserts that CALJIC No. 2.71 allowed the jury to overlook these discrepancies. Appellant also argues the instruction permitted the jury to overlook Ms. Hernandezs "tendency to jump to conclusions," particularly her testimony that appellant said he had done a side job for the person on the check. Appellant suggests the jury should have been able to consider his postarrest statement that he received the check from a friend, but CALJIC No. 2.71 again permitted the jury to overlook the possibility that Ms. Hernandez misunderstood what appellant said to her as he tried to cash the check. Appellant further suggests that since he was already in Money Marts computer system and previously used the companys services, he would have known that the firm called the maker of the check, such that he would not have knowingly present a forged and stolen check for cashing. Appellant asserts that "[o]ther, more solid evidence" supports the inference that he never said he worked for the Williams, posits that "[i]f appellant had stolen the check that morning, he would not have returned and ask that it be run again after if was refused the first time," and he would have forged the check for an amount greater than $200.
Appellant also asserts that CALJIC No. 2.71 prevented the jury from considering the possible connection between appellant and Michael or Robert Wren, who was found in front of the Hetricks house and armed with a revolver. Appellant argues:
"... Although Officer Dealba purported not to remember appellants saying anything to him about trying to get away from a man with a gun, Officer Spurlock, indeed, arrested a man with a gun only 17 minutes after appellant was found banging on the Hetrick door. Thus, there was evidence to corroborate appellants defense that his intent was [to] trespass, not burglary. Although the officer reported appellants only statement as claiming he was looking for a place to go to the bathroom, the arrest of Mike Wren at the scene shortly after appellant strongly supports an inference that appellants intention at the Hetrick house was not burglary."
Appellant thus asserts CALJIC No. 2.71 allowed the jury to simply infer he was guilty based on his other statements, and prevented it from considering this defense theory.
A courts erroneous decision to give a "consciousness of guilt" instruction is subject to review under People v. Watson (1956) 46 Cal.2d 818, 836. (Rankin, supra, 9 Cal.App.4th at p. 436.) Contrary to appellants version of the record, the evidence of appellants guilt was so significant that any error in giving CALJIC No. 2.71 was harmless under any standard. Ms. Castillo positively identified appellant as the person walking out of Mr. and Mrs. Williams house; thereafter, it was discovered that the Williams backdoor had been kicked in and their check book was missing. Ms. Castillo insisted that her trial identification of appellant was based on her observations of him at the scene, and not influenced by viewing Money Marts copy of his photo ID. Appellant insists that Ms. Castillos description of the suspect to the police was wildly inconsistent with his actual appearance; this issue was developed at trial and raised a factual issue for the jury to resolve, based on their observations of appellant compared to Ms. Castillos description.
Moreover, just a few hours after being seen at their house, appellant appeared at the Money Mart with a stolen and forged check written on their checking account, and claimed he did a job for the people who gave him the check. Ms. Hernandez clarified that appellant never said that he worked for Mr. and Mrs. Williams, but that he did some work for the people who wrote the check. The record refutes appellants characterization of Ms. Hernandezs testimony as "tendency to jump to conclusions."
Appellant insists that his conduct at Money Mart was inconsistent with knowingly trying to cash a forged and stolen check. But the record suggests just such an inference. Ms. Castillo observed appellant at the Williams home around 9:00 a.m. Mrs. Williams later determined the intruder had used the shower and toilet at the house. Appellant appeared at Money Mart just a few hours after he left the Williams house. Based on his morning activities, appellant may have believed no one would answer the Williams telephone when Money Mart called to confirm the check, and that all he had to do was present his valid identification to cash the check and get the money. Such a possibility may explain his frustration and anger when Money Mart refused to cash the check. His conduct at Money Mart was not inconsistent with his activities that day.
As for the rest of the charges, Mrs. Hetrick heard someone ring their doorbell, open the screen, and try to open the front door latch, and clearly observed appellant walking away from their front door. Shortly thereafter, appellant was apprehended as he used a large rock and tried to smash open the Hetricks metal back door.
As for appellants assertion that his statements were consistent with being chased by Wren, the alleged gun-wielding man on the bicycle, there is absolutely no evidence that appellant ever said that he was trying to seek refuge from an armed assailant. Instead, he told the officers that "he was just looking for a place to pee." It is undisputed that appellant tried to open the front door of the Hetricks house, and used a large stone and tried to break down the back door. His statement that "he was just looking for a place to pee" could also have been interpreted to mean he was actually trying to gain entry to the house to use the Hetricks bathroom, just as he apparently used the Williams bathroom when he kicked down their door.
According to the probation report, appellant was interviewed by the probation officer after the trial and stated that he went into the Hetricks backyard because he was hiding "from a man with a gun."
We thus conclude it is not reasonably probable that appellant would have received a more favorable verdict even if the trial court had not instructed the jury to view his statements with caution.
II.
CALJIC No. 2.03
Appellant next contends the jury was improperly instructed with CALJIC No. 2.03, consciousness of guilt, because it suffers from the same flaws as CALJIC No. 2.71, unfairly focuses on the testimony of a single witness, and invites the jury to draw the most negative possible inference from the statements. Appellant asserts that "what the instruction cost [him] in fairness was too high a price to pay for the instructions so-called `cautionary language."
The jury herein was given CALJIC No. 2.03, which states:
"If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
"It is well established that pretrial false statements by a defendant may be admitted to support an inference of consciousness of guilt by the defendant. [Citation.]" (People v. Edwards (1992) 8 Cal.App.4th 1092, 1102 (Edwards).) "As Witkin explains: `False statements deliberately made by defendants to arresting officers concerning matters within [defendants] own knowledge, and relating to the issue of guilt or innocence, "cogently evidence consciousness of guilt and suggest that there is no honest explanation for incriminating circumstances." [Citations.]" (People v. Kimble (1988) 44 Cal.3d 480, 496.)
"... The giving of CALJIC No. 2.03 is justified when there exists evidence that the defendant prefabricated a story to explain his conduct. The falsity of a defendants pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendants testimony at trial. The trial court is required to instruct the jury on applicable principles of law. When testimony is properly admitted from which an inference of a consciousness of guilt may be drawn, the court has a duty to instruct on the proper method to analyze the testimony. CALJIC No. 2.03 is a correct statement of the law; that it may single out defendant is not a determinative factor. [¶] If the jury here believed the testimony of other witnesses, it could reasonably have found defendants pretrial statements were willfully false and deliberately misleading. From this, the jury could have inferred a consciousness of guilt. The trial court properly instructed the jury in CALJIC No. 2.03." (Edwards, supra, 8 Cal.App.4th at pp. 1103-1104.)
Thus, an instruction on consciousness of guilt under CALJIC No. 2.03 is properly given when the evidence supports the inference that the defendant prior to trial made a willfully false or deliberately misleading statement concerning the charged offense. (Kelly, supra, 1 Cal.4th 495, 531; Edwards, supra, 8 Cal.App.4th at p. 1103; People v. Williams (1995) 33 Cal.App.4th 467, 478.) The instruction is applicable "based on defendants inconsistent and contradicted statements to police attempting to minimize involvement" in an offense. (People v. Stitely (2005) 35 Cal.4th 514, 555 (Stitely).) A defendants inconsistent statements to police, initially denying and then admitting commission of the crimes, provide the requisite evidentiary support for the instruction. (Kelly, supra, 1 Cal.4th at p. 531.) CALJIC No. 2.03 applies "whether or not the defendant himself contradicts his earlier statement," and is properly given where the defendants pretrial statement is shown to be false "by the testimony of prosecution witnesses." (People v. Snow (2003) 30 Cal.4th 43, 96 (Snow).)
"The inference of guilt suggested by [CALJIC No. 2.03] is a permissive one. The jury is admonished that `such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination." (Rankin, supra, 9 Cal.App.4th at p. 436, italics in original.) "A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 180.) CALJIC No. 2.03 does not violate due process as long as the evidence provides a rational basis to infer a consciousness of guilt. (People v. Griffin (1988) 46 Cal.3d 1011, 1027.) "[I]t can be inferred rationally that false statements regarding a crime show a consciousness of guilt of [the charged offenses]." (Ibid., italics in original.)
In People v. Crandell (1988) 46 Cal.3d 833 (Crandell) (overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365), the defendant faced multiple felony charges, and argued that CALJIC No. 2.03 should have been limited to the murder charge because there was no evidence that he made false statements relating to the kidnapping and assault charges. Crandell rejected this argument, and held CALJIC No. 2.03 did not "assume the existence of evidence relating to each charge," but merely instructs the jury "on the use of such evidence should it be found to exist." (Crandell, supra, at p. 870.)
Crandell also addressed the defendants arguments that CALJIC No. 2.03, and CALJIC No. 2.06 (attempt to suppress evidence raising inference of consciousness of guilt), permitted the jury to view the "consciousness of guilt" inference "as equivalent to a confession, establishing all elements of the charged murder offenses, including premeditation and deliberation, though defendant might be conscious only of having committed some form of unlawful homicide." (Crandell, supra, 46 Cal.3d at p. 871.) The defendant asserted the instructions permitted the jury to draw impermissible inferences, "without foundation in reason or experience, concerning his mental state at the time of the homicides" in violation of due process. (Ibid.) Crandell rejected these arguments:
"Defendants fear that the jury might have confused the psychological and legal meanings of `guilt is unwarranted. A reasonable juror would understand `consciousness of guilt to mean `consciousness of some wrongdoing rather than `consciousness of having committed the specific offense charged. The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instructions do not address the defendants mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto." (Crandell, supra, 46 Cal.3d at p. 871.)
"... CALJIC No. 2.03 does not require the jury to draw an inference of wrongdoing or permit the unrestrained use of an unMirandized statement. On the contrary, before drawing any inference, the jury must first find that the defendants statement was willfully false or deliberately misleading. Furthermore, the instruction does not ascribe any particular importance to the evidence but permits the jury to decide[] what weight or significance, if any, should be given the false statement. In addition, the instruction expressly forbids the jury from basing a conviction solely on the fact that the defendant made a false statement." (People v. Williams (2000) 79 Cal.App.4th 1157, 1168.)
The California Supreme Court has continued to uphold CALJIC No. 2.03 against the identical challenges raised by appellant, that CALJIC No. 2.03 is a cautionary instruction that "`benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]" (People v. Boyette (2002) 29 Cal.4th 381, 438.) CALJIC No. 2.03 does not improperly endorse the prosecutions theory or lessen its burden of proof, and is not an improper pinpoint instruction. (Ibid.; Jackson, supra, 13 Cal.4th at p. 1224; Kelly, supra, 1 Cal.4th at p. 531.) As explained ante, Jackson addressed CALJIC No. 2.03 and other "consciousness of guilt" instructions, and held they were not improper pinpoint instructions: "[E]ach of [these] instructions made clear to the jury that certain types of deceptive or evasive behavior on a defendants part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendants guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that these consciousness-of-guilt instructions did not improperly endorse the prosecutions theory or lessen its burden of proof." (Jackson, supra, 13 Cal.4th at p. 1224.) "The instructional language sufficiently protects against conviction based on the defendants false statements or consciousness of guilt alone. [Citation.] Nor is it argumentative or biased in the prosecutions favor. [Citation.] Finally, insofar as the jury believed defendant lied about the charged crimes, the instruction did not generate an irrational inference of consciousness of guilt. [Citation.]" (Stitely, supra, 35 Cal.4th at p. 555; see also People v. Cain (1995) 10 Cal.4th 1, 34 [instruction does not permit jury to infer whether the defendant possessed the requisite intent]; People v. Medina (1995) 11 Cal.4th 694, 762 [CALJIC No. 2.03 is not an argumentative pinpoint instruction].)
As in his attacks upon CALJIC No. 2.71, appellant relies on Wright, argues the California Supreme Court has disapproved instructions which pinpoint the testimony of a single witness, and asserts the cases which have upheld CALJIC No. 2.03 must be reconsidered. (Wright, supra, 45 Cal.3d at pp. 1135-1136 & fn. 6.) We have already explained, however, that Kelly rejected the argument that a "consciousness of guilt" instruction must be reassessed in light of Wright, and held such an instruction is valid because it only permits consideration of evidence regarding consciousness of guilt, but cautions such evidence is not sufficient, on its own, to prove guilt. (Kelly, supra, 1 Cal.4th at pp. 531-532.)
Appellant acknowledges the long line of California Supreme Court cases which have upheld the language of CALJIC No. 2.03 against various due process challenges. He asserts, however, that all these cases are based on Crandell, and Crandell should be rejected because it relied on faulty and flawed logic. Appellant cites to Crandells analysis that "[a] reasonable juror would understand `consciousness of guilt to mean `consciousness of some wrongdoing rather than `consciousness of having committed the specific offense charged." (Crandell, supra, 46 Cal.3d. at p. 871.) Appellant asserts Crandells interpretation of these phrases is refuted by "plain English definitions" of the words "wrongdoing" and "consciousness."
However, in People v. San Nicolas (2004) 34 Cal.4th 614, the California Supreme Court rejected similar arguments and again affirmed the validity of CALJIC No. 2.03 and the analysis in Crandell. (People v. San Nicholas, supra, at pp. 666-667; see also People v. Bolin (1998) 18 Cal.4th 297, 327 (Bolin).) As with appellants attacks upon CALJIC No. 2.71, we decline his invitation to disregard California Supreme Court precedent on the interpretation of CALJIC No. 2.03. (Auto Equity, supra, 57 Cal.2d at p. 455.)
In the instant case, there was evidence that appellant presented the stolen and forged check at the Money Mart, and told Ms. Hernandez, the clerk, that he received the check from the maker for doing a side job. Ms. Castillo had seen appellant walk out of the Williams burglarized house on East Fairmont, just a few hours before he appeared at the Money Mart. Mr. and Mrs. Williams testified the check had been stolen from their burglarized house, they did not know appellant and did not hire him to do any work, and Mr. Williams testified his signature was not on the check. When he was apprehended and advised about the outstanding warrant for the East Fairmont burglary and the Money Mart forgery, appellant said a friend gave him the check that he tried to cash at Money Mart. If the jury believed the testimony of Ms. Castillo and Ms. Hernandez, it could have reasonably found that appellants postarrest statement was willfully false and deliberately misleading, and further inferred a consciousness of guilt. Accordingly, the court properly instructed the jury with CALJIC No. 2.03. (See, e.g., Snow, supra, 30 Cal.4th at pp. 96-97; Arias, supra, 13 Cal.4th at p. 141.)
Even if the evidence did not support the courts decision to give CALJIC No. 2.03, any error was harmless under either Watson or Chapman. (Rankin, supra, 9 Cal.App.4th at p. 436; see also People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 (Guiton); People v. Robinson (1999) 72 Cal.App.4th 421, 428-429 (Robinson).) CALJIC No. 2.03 presented the jury with a permissive inference, if it found the defendant made willfully false or deliberately misleading statement, and further cautioned the jury that such conduct was insufficient by itself to prove guilt, and that the jury had to decide the weight and significance, if any, of such evidence. The jury was also told that it should disregard any instructions that were inapplicable to the facts (CALJIC No. 17.31), and we presume the jury followed the courts directive. (Waidla, supra, 22 Cal.4th at p. 725.) Moreover, as set forth in section I, ante, the evidence against appellant was so significant that any error in giving CALJIC No. 2.03 was harmless under any standard.
III.
CALJIC Nos. 2.80 AND 15.05
Appellant next contends the court improperly gave two instructions without any evidentiary support—CALJIC No. 2.80, evaluation of expert testimony, and CALJIC No. 15.05, forgery of an endorsement. Appellant asserts these instructions could have confused the jury based on the language therein and the nature of the evidence.
A. CALJIC No. 2.80
The jury herein received CALJIC No. 2.80, expert testimony, which stated:
"[A witness] who [has] special knowledge, skill, experience, training or education in a particular subject [has] ... testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give any opinion expressed by an expert witness you should consider the qualifications and believability of the witness, the facts or material upon which each opinion is based, and the reasons for each opinion.
"An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based.
"You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable."
The court is required to instruct on expert testimony when the testimony expressed is an opinion on "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).)
Appellant correctly notes that neither the prosecution nor the defense called an expert witness in this case. Respondent quizzically asserts that CALJIC No. 2.80 was properly given based upon the testimony of Doug Lovell, an identification technician for the Modesto Police Department. Respondent fails to realize that Mr. Lovell testified at the bifurcated bench trial on the special allegations, as to whether appellants fingerprints were on the identification cards attached to various court and prison records, and did not testify in front of the jury.
As explained ante, it is error for the court to instruct the jury on abstract principles not pertinent to the issues in the case. (Guiton, supra, 4 Cal.4th at pp. 1129-1130; Robinson, supra, 72 Cal.App.4th at pp. 428-429.) Where the court gives a legally correct but inapplicable instruction, the error "`is usually harmless, having little or no effect "other than to add to the bulk of the charge." [Citation.]" (People v. Lee (1990) 219 Cal.App.3d 829, 841 (Lee).)
Appellant asserts the courts erroneous decision to give CALJIC No. 2.80 was prejudicial because the jury might have mistakenly believed certain witnesses were experts, and assigned more weight and value to their testimony. Appellant points to the testimony of Ms. Hernandez, the clerk at the Money Mart, and her testimony that the check did not look right to her because the handwriting on the check seemed similar to appellants signature on the photo ID. But Ms. Hernandez also testified she did not have any formal handwriting expertise, she did not have any training in handwriting analysis as part of her job, and she was not familiar with appellants handwriting.
The jury herein received CALJIC No. 17.31, to disregard any instructions that were inapplicable to the facts, and we presume the jury followed the courts directive. (Waidla, supra, 22 Cal.4th at p. 725.) CALJIC No. 2.80 did not instruct the jury that it actually heard any expert testimony, but only on how to evaluate the opinion of an expert. The jury did not hear any expert testimony, and it heard Ms. Hernandezs admission that she was not a handwriting expert and did not have any specialized handwriting training for her job. We must therefore presume the jury followed CALJIC No. 17.31 and disregarded the instruction on expert testimony.
It could be argued, however, that the court should have instructed the jury as to lay opinion testimony, based on Ms. Hernandezs testimony that the writing on the check looked like appellants signature on his identification card. Evidence Code section 800 states that lay opinion testimony is admissible if it is based on the perceptions of the witness and is helpful to a clear understanding of his or her testimony. CALJIC No. 2.81 states:
"In determining the weight to be given to an opinion expressed by any witness [who did not testify as an expert witness], you should consider [his][her] believability, the extent of [his] [her] opportunity to perceive the matters upon which [his][her] opinion is based and the reasons, if any, given for it. You are not required to accept an opinion but should give it the weight, if any, to which you find it entitled."
Ms. Hernandez testified she did not have any specialized expertise or training in handwriting analysis, but she offered her opinion that the check seemed to be written in the same handwriting as appellants signature on the photo ID. CALJIC No. 2.81 would have helped the jury evaluate Ms. Hernandezs lay opinion testimony.
While the jury did not receive CALJIC No. 2.81, it was instructed on CALJIC No. 2.20, which instructs the jury that it is the sole judge of the believability of the witness and the weight to be given the testimony. The instruction also gives the jury various items it may consider in determining the believability of a witness, including the ability of the witness to observe the facts about which he or she testified, the ability of the witness to recall the events, the quality of the witnesss testimony, the demeanor of the witness, any possible bias the witness may have, the existence or nonexistence of a fact testified to by the witness, and the attitude of the witness.
CALJIC No. 2.81 informs the jury that in deciding the weight to be given to a witnesss opinion testimony, the jury should consider the believability of the witness, the ability to observe the facts on which the opinion is based, and the reasons for the opinion. The instruction concludes "[y]ou are not required to accept an opinion but should give it the weight, if any, to which you find it entitled." The quoted portion of CALJIC No. 2.81 reiterates the jurys obligation to determine the weight to be given a witnesss testimony using language slightly different than CALJIC No. 2.20. The remaining portions of CALJIC No. 2.81 are repetitive of CALJIC No. 2.20. The believability of the witness, the extent of the witnesses opportunity to perceive the matter on which the opinion is based, and the reasons given for the opinion are all referred to in CALJIC No. 2.20. It could thus be argued that CALJIC No. 2.20 provided the jury with ample guidance to disregard Ms. Hernandezs testimony or give it little weight. CALJIC No 2.81 would have added little to the deliberations in this case.
Even if the court should have given CALJIC No. 2.81, appellant was not prejudiced by the absence of the instruction. Ms. Hernandezs opinion was based on her examination of the stolen and forged check, and appellants signature on his photo ID. She copied both items, the Williams obtained that copy and gave it to the police, and the document was introduced into evidence. The jury thus had the same opportunity to examine the same items to evaluate Ms. Hernandezs testimony pursuant to CALJIC No. 2.20. Moreover, as set forth in section I, ante, the evidence against appellant is overwhelming such that Ms. Hernandezs opinion was not crucial to the case.
B. CALJIC No. 15.05
Appellant was charged in count IV with a violation of section 470, subdivision (d), that he "willfully, unlawfully, fraudulently and feloniously make, alter, forge, counterfeit, utter, publish, pass, or attempt or offer to pass, a check, bill, money order, or other order in writing for the payment of money." The jury was instructed with CALJIC No. 15.01, as to the elements of a violation of section 470, subdivision (d), as follows:
"1. A person uttered and passed a forged check.
"2. That person knew that the check was false, altered, forged or counterfeited;
"3. That person uttered and passed the check with the specific intent to defraud another person; and
"4. That person uttered and passed the check with the specific intent that it be accepted as true and genuine."
CALJIC No. 15.01 further explained the words "`utter and `publish" mean the same thing, to use or attempt to use "an instrument, document or writing to either (1) assert that the instrument, document or writing is genuine, or (2) represent to someone else that it is genuine. The assertion or representation may be direct or indirect ...."
The jury also received CALJIC No. 15.02, that appellant was accused of forging and uttering the check, and he may be convicted of forgery "by proof of either the forging, or the uttering, of the forged instrument or document, or of both forging and uttering." CALJIC No. 15.03 stated the existence of the specific intent to defraud was an essential element of forgery, but it was not necessary for a person to be actually defrauded to complete the crime.
Appellants assignment of error is based on the jurys additional receipt of CALJIC No. 15.05, which stated:
"Forgery is committed if a person, with the specific intent to defraud, falsely writes or signs as an endorsement on the back of a check, bill of exchange, or other negotiable instrument, the name of the payee of the instrument or the name of any other person whose signature is necessary in order that the instrument may be cashed or otherwise negotiated."
Appellant correctly notes that there was no evidence that he endorsed the check he presented at Money Mart. Indeed, Ms. Hernandez testified that when appellant presented the check to her, it was already filled out and he did not write anything on the check in her presence. She did not know if he had signed the back of it. Appellant asserts the instructional error is prejudicial because CALJIC No. 15.05 "suggested to the jury that appellant had forged check no. 2056 based on a record devoid of proof appellant ever wrote one word on that check. Suggesting to the jury that appellant had written the check through erroneous jury instructions influenced their consideration, not just of the forgery, count, but of all the counts in this case."
This argument is patently absurd. As explained ante, where the court gives a legally correct but inapplicable instruction, the error "`is usually harmless, having little or no effect "other than to add to the bulk of the charge." [Citation.]" (Lee, supra, 219 Cal.App.3d at p. 841.) The jury was correctly instructed on the elements of forgery, and it heard evidence that appellant walked out of the burglarized house of Mr. and Mrs. Williams, their checkbook had been stolen, appellant tried to cash a check from their bank account a few hours after he was seen at their burglarized house, he told Ms. Hernandez that he did a side job for the maker, and Mr. Williams testified he did not write the check. While appellant later told the police that a friend gave him the check, that statement raised a credibility question for the jury to resolve, completely apart from any issue raised by CALJIC No. 15.05. Any error in giving the instruction is necessarily harmless.
Having rejected appellants instructional issues, we similarly reject his assertion of cumulative instructional error. (See, e.g., People v. Cash (2002) 28 Cal.4th 703, 741.)
IV.
ROMERO AND SECTION 1385
Appellant next contends the court abused its discretion when it denied his request to dismiss seven of his eight prior strike convictions and impose a determinate term, instead of multiple indeterminate life terms.
A. The Prior Strike Convictions
As to counts I, II, and III, the amended information alleged appellant suffered eight prior convictions within the meaning of the three strikes law: rape by force or fear (§ 261, subd. (a)(2)); sodomy of a person under 14 years while more than 10 years older (§ 286, subd. (c)); sodomy in concert with another person (§ 286, subd. (d)); oral copulation of a person under 14 years while more than 10 years older (§ 288a, subd. (c)); oral copulation in concert with another person (§ 288a, subd. (d)), with all the sex offenses in 1983; and three convictions for first degree residential burglary in 1994 (§ 459).
According to the documentary exhibits, the eight strike offenses were based on two separate proceedings. The five sex offenses were based on appellants juvenile adjudication in San Joaquin County in May 1983. The record is silent as to the nature and circumstances of the offenses. Appellant was 16 years old when he committed the offenses, the court found the allegations true, and committed him to the California Youth Authority (CYA) for 42 years.
The three other strike convictions were based on the following proceeding. In June 1994, an information was filed in San Joaquin County which charged appellant with six counts of first degree residential burglary, and an enhancement for being armed with a firearm (§ 12022, subd. (a)), with the offenses committed in September, October, and December 1993; and three counts of vehicular burglary, committed in June, November and December 1993. In September 1994, appellant pleaded guilty to all nine counts and admitted the arming enhancement. In October 1994, the court sentenced appellant to eight years four months for three counts of burglary and the enhancement, based on the offenses committed in December 1993, and then dismissed the remaining six counts in the interests of justice.
In the instant case, the court found all eight prior strike convictions true at the bifurcated bench trial.
B. The Probation Report
The probation report provided further information about the rest of appellants criminal record. As noted ante, appellant (born 1966) was committed in May 1983 to the CYA for the maximum commitment of 42 years. He was released on parole, and then violated parole in November 1988. In October 1994, he suffered the three burglary convictions, along with the section 12022, subdivision (a)(1) enhancement, for being armed with a firearm, and was sentenced to state prison.
Appellant then suffered a series of misdemeanor convictions. In May 2003, he had a misdemeanor conviction for driving with a blood-alcohol level of more than .08 percent (Veh. Code, § 23152, subd. (b)) in Stanislaus County. In June 2003, he had a misdemeanor conviction for resisting arrest (§ 148, subd. (a)(1)) in Contra Costa County. In January 2004, he had a misdemeanor conviction for drawing, exhibiting or using a firearm (§ 417, subd. (a)(1)), in Contra Costa County. In June 2004, he was convicted of misdemeanor driving under the influence (Veh. Code, § 23152, subd. (b)) and misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a)). He was separately placed on probation for three years in each of these misdemeanor cases.
Appellant told the probation officer that he started using cocaine when he was 10 years old, because his father gave it to him to keep him awake to play the drums in his fathers band. Appellant progressed from cocaine to crystal methamphetamine, which he was using when he was arrested in this case. Appellant said he was clean for six years while in prison, and stayed clean for about a year while on parole. He started using methamphetamine again on a recreational basis, but quickly became addicted and his drug use escalated for the three years before his arrest.
Appellant stated he attempted suicide on three occasions in the last couple of years, while coming down from drugs. He said he was committed to the Stanislaus County Behavioral Center on about seven different occasions in the previous three or four years, due to depression, guilt, and suicidal thoughts he had after using drugs. He completed a 28-day program about two years ago and then attended an outpatient clinic, but walked away after two weeks. Appellant stated he "`wasnt a drinker until I became suicidal." He started drinking hard liquor over the past three years to become intoxicated quickly, and also consumed 40-ounce bottles of beer. Appellant also suffered from Hepatitis C. Appellant denied that he had typical mental health problems, but he had been placed on Lithium and Thorazine after he was convicted in this case.
Appellant had a 14-year-old daughter with an ex-girlfriend. The childs mother had passed away, and the girl had been adopted because of appellants drug problems; appellant said they still wrote each other on a regular basis. Appellant was married in 1999 and had a six-year-old son, but he separated from his wife about eight months before his arrest in this case, because of his drug use. Appellant said he had been homeless in the months before his arrest.
Appellant graduated from high school while in CYA, and later attended a trade school for welding. Appellant stated he worked as a certified welder at numerous steel and manufacturing companies, earning as much as $20 per hour, but he was not able to stay at any of the jobs very long because of his drug problems. He did not have any assets.
As to the instant offenses, appellant told the probation officer he received the check from "`Alberto," as payment for doing a welding job for him. When appellant could not cash the check, he took it back to Alberto and later found out the check had been stolen in a burglary. Appellant denied committing the burglary at the Williams house. Appellant also denied that he was trying to break into the Hetricks house. He claimed he was hiding from a guy with a gun, and he went into their backyard to get someones attention but the police came and beat him up. Appellant denied stealing anything while he was homeless in the months before his arrest.
Appellants former parole agent stated he did very well on parole. "`He was not perfect and had some problems, but was never returned to prison."
C. The Sentencing Hearing
At the sentencing hearing, Mr. Scheid, defense counsel urged the court to dismiss the prior strike convictions because he committed five of the offenses while a juvenile, the juvenile adjudications were over 20 years old, and the burglary convictions were over 10 years old. Counsel cited to the probation reports discussion of his troubled childhood, mental health problems and drug abuse, as mitigating circumstances. Counsel noted that the instant offenses did not involve great violence, he was not armed with a weapon, the crimes did not involve great monetary value, no victims were harmed, and his prior performance on parole was satisfactory.
The prosecutor countered that appellant served a prior commitment to CYA and a prior prison term, and he was on misdemeanor probation when he committed the instant offenses. While appellants former parole agent said his performance was good, the prosecutor noted that appellants good parole performance occurred while he was subject to supervision, whereas he had constantly violated his unsupervised probation. The prosecutor also noted that appellants history of committing burglaries involved offenses with a great risk of harm. In the instant case, appellant was trying to break into an occupied home, with an armed resident on the other side of the door waiting for him. The prosecutor believed it was fortunate the police arrived before appellant broke through the backdoor.
"Thats about the best the People can say for [appellant]. This is not the type of case, this is not the type of defendant that should be rewarded with the Court exercising its discretion under [section] 1385 and [Romero] to strike a strike or any of his strikes."
The prosecutor argued appellant should not benefit from having seven of his eight strikes dismissed to get a determinate term. "This is a defendant that, if not incarcerated for the maximum time allowed, will continue to do what hes been doing all his life, committing burglaries." Even though some of his strikes were based on juvenile adjudications, appellants motion should be denied because he was "a danger to the community." The prosecutor concluded the court would abuse its discretion if it dismissed any of the strike priors, particularly those for first degree burglary.
Defense counsel objected to the prosecutors assertion that it would abuse its discretion if it granted the Romero motion, and argued it would be "an abuse of discretion not to exercise the Courts discretion."
The court denied appellants Romero motion:
"... Mr. Scheid, I certainly appreciate your requesting the Court to consider striking the strikes for [appellant], but [appellants] lengthy criminal history is what has put him in this particular situation. And [appellant] also was engaging in, as [the prosecutor] pointed out, serious felonies yet again, first degree burglaries.
"And [Mr. Hetrick] ... did testify that he had a gun ready to use on you ... and thats because they were terrified of what you were doing at their door.
"So your criminal history is whats brought you here today, not the District Attorneys Office and not Mr. Scheids failure to do anything."
The court found the aggravating circumstances were his service of a prior prison term and a CYA term, he was on probation when the crime was committed, and he had not shown any remorse for his actions. In mitigation, his prior performance on parole was satisfactory.
The court imposed an aggregate term of 95 years to life: as to count I, the third strike term of 25 years to life, with two consecutive five-year terms for the prior serious felony enhancements; as to count II, a consecutive term of 25 years to life, with two consecutive five-year terms for the enhancements; and in count III, another consecutive term of 25 years to life. As to count IV, the court imposed and stayed the term of 25 years to life pursuant to section 654, and as to count V, a concurrent term of one year in jail.
D. Analysis
Appellant contends the court abuse its discretion when it denied his request to dismiss the prior strike convictions because the instant offenses were not violent, he was not armed with a weapon, he did not present a threat of violence, the offenses were not sophisticated, the burglaries herein were not violent crimes, the victims were not harmed, his prior strike convictions were 10 years old, the prior juvenile adjudications were 20 years old, and his prior performance on parole was good.
Section 1385 permits the trial court to exercise its discretion and dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); People v. Garcia (1999) 20 Cal.4th 490, 499, 502; People v. Williams (1998) 17 Cal.4th 148, 158 (Williams); Romero, supra, 13 Cal.4th 497, 529-530.)
The trial court has broad discretion in making sentencing choices and its decisions will not be disturbed on appeal absent a showing of clear abuse. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony I).) We shall not find a trial court has abused its discretion unless its decision is so irrational or arbitrary that no reasonable person would agree with it. (Id. at p. 377.) The party objecting to the sentence bears the burden of showing the decision was irrational or arbitrary. (Id. at p. 376.)
As the Supreme Court explained, the trial court must find the defendant falls outside the "spirit" of the three strikes law to dismiss a prior strike conviction in furtherance of justice pursuant to section 1385 and Romero. (Williams, supra, 17 Cal.4th at p. 161; Romero,supra, 13 Cal.4th at pp. 530-531.)
"[T]he court in question must consider whether, in light of the nature and circumstances of [the defendants] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161, italics added.)
To show an abuse of discretion, the defendant must demonstrate the trial courts decision "was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (Id. at p. 310.)
Carmony I extensively discussed the nature of this deferential review as it applies to three strikes cases.
"[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.
"In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not `aware of its discretion to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, `the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result under the specific facts of a particular case. [Citation.]
"But `[i]t is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. [Citation.] Where the record is silent [citation ...], or `[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance [citation]. Because the circumstances must be `extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Carmony I, supra, 33 Cal.4th at p. 378.)
Thus, when the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (People v. Myers, supra, 69 Cal.App.4th at pp. 309-310.)
Appellant cites to People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop), and asserts the trial court herein abused its discretion when it denied his motion to dismiss the prior strike convictions. In Bishop, the defendant was charged with petty theft with a prior theft-related conviction, based on his theft of six videocassettes from a drug store, and alleged to have suffered three prior strike convictions—one robbery conviction in 1969, and robbery and assault with a firearm in 1979. (Id. at pp. 1247-1248 & fn. 1.) The defendant was 50 years old when he committed the current offense, and "his lifetime of crime was directed toward supporting his drug use." (Id. at p. 1248.) Prior to trial, he requested the court to dismiss two prior strike convictions to receive a determinate term of 12 years, precluding his release until he was almost 60 years old. The defendant argued he deserved leniency because his prior convictions were remote and his current offense was petty. (Id. at p. 1248.) The trial court granted the motion, and found his strikes were "`remote (17 to 20 years old) and the nature of the current crime is non-violent. Penalty of 12 years seems appropriate. The court further commented that the 12-year sentence would `stop the revolving door of this defendant because it will keep him in prison for a significant period of time ...." (Id. at p. 1248.) The defendant then pleaded guilty and was sentenced to the second strike determinate term. (Id. at p. 1249.) The People filed an appeal, and argued the trial court abused its discretion in dismissing the strike convictions.
Appellant also cites to People v. Cluff (2001) 87 Cal.App.4th 991, 1004, in support of his Romero argument. Cluff held the trial court abused its discretion for failing to consider the defendants Romero motion because his current offense involved a "`technical" violation of a registration requirement. As we will explain in section VI, post, that type of a current offense is dramatically different from the offenses which appellant committed in this case.
Bishop held the trial court did not abuse its discretion:
"[The defendant] is not a worthy member of society. But when his misdeeds are compared with those of the far too many violent recidivists in this state, he is not the worst we have seen. While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude. Rather, what counts is what the trial court in this case concluded, as expressed by the reasons it stated under section 1385, subdivision (a). On this record, we cannot say that the trial courts decision to dismiss two of Bishops strikes in furtherance of justice constituted an abuse of discretion." (Bishop, supra, 56 Cal.App.4th at p. 1251.)
Appellants reliance on Bishop is misplaced for several reasons. First, Bishop predates Williams, supra, 17 Cal.4th 148, and consequently did not apply the appropriate standard of whether the defendant should be deemed to fall outside the schemes spirit. Instead, Bishop indicated the nature of the present crime and the remoteness of the defendants prior violent offenses operated to mitigate his three strikes sentence. However, the three strikes law provides "[t]he length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence." (§ 667, subd. (c)(3).) Thus, remoteness does not take a defendant outside the spirit of the very law that expressly rejects remoteness as a basis for avoiding the law.
Second, Bishop relied heavily on People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, for the scope of the trial courts right to exercise its discretion. But Alvarez addressed a different issue with a different scope of discretion: the trial courts unqualified discretion to determine whether to reduce a wobbler to a misdemeanor for purposes of the three strikes law. Alvarez contrasted that discretion with the qualified discretion under section 1385, subdivision (a), which, it acknowledged, was an example of a statute that "contain[ed] express qualifications delineating, and thereby restricting, the particular exercise of discretion." (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977; see People v. Strong (2001) 87 Cal.App.4th 328, 342-343 (Strong).)
Finally, we note that Strong held that a trial court had abused its discretion under Romero when it concluded a career criminal was outside the spirit of the three strikes law.
"Although the trial court reasoned that defendants violent strike was `out of character, a defendant who falls squarely within the laws letter does not take himself outside its spirit by the additional commission of a virtually uninterrupted series of nonviolent felonies and misdemeanors over a lengthy period. After all, the Three Strikes law was devised for the `revolving door career criminal, and was expressly intended `to ensure longer prison sentences ... for those who commit a felony as long as they were previously convicted of at least one strike. The fact that a defendant who qualifies for sentencing under the Three Strikes law is also a habitual offender can hardly act as mitigation so as to take him outside the spirit of that law. Likewise, middle age, considered alone, cannot take a defendant outside the spirit of the law; otherwise, the very factor that takes a defendant within the spirit of the law—a lengthy criminal career with at least one serious or violent felony—would have the inevitable consequence—age—that would purportedly take him outside it. Extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very statutory scheme within which he squarely falls and whose continued criminal career the law was meant to attack." (Strong, supra, 87 Cal.App.4th at pp. 331-332, fns. omitted.)
Strong rejected any reliance on Bishop because the defendant in that case had a shorter criminal record and his violent crimes were remote, Bishop predated Williams and "did not apply those distinguishable facts to the applicable standard under Williams," and Bishop "never addressed the overall question whether the defendant should be deemed to fall outside the schemes spirit." (Strong, supra, 87 Cal.App.4th at p. 342.)
Our exhaustive review of the record reflects the trial court herein carefully reviewed the entirety of appellants criminal record, the nature of the current offenses, and his prior performance on probation, and acted to achieve legitimate sentencing objectives, after a thoughtful and conscientious assessment of all relevant factors. (See Williams, supra, 17 Cal.4th at pp. 161-164; see also Romero, supra, 13 Cal.4th at pp. 530-532.) Appellant has not shown the trial court acted improperly in refusing to dismiss his prior convictions. (People v. Barrera (1999) 70 Cal.App.4th 541, 553-555; People v. Cline (1998) 60 Cal.App.4th 1327, 1336-1337.)
V.
CRUEL AND/OR UNUSUAL PUNISHMENT
Appellant asserts the courts imposition of the third strike term of 95 years to life violates the federal and state constitutional prohibitions against cruel and/or unusual punishment.
The purpose of the three strikes law is not to subject a criminal defendant to a life sentence merely on the basis of the latest offense. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of a disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593-595.)
Appellant was not sentenced to a life term solely on the basis of the instant offense, but because of his record as a recidivist offender previously convicted of numerous serious and/or violent felonies. As noted by the trial court, given the lengthy and serious nature of his prior record, appellant is precisely the type of offender from whom society seeks protection by use of recidivist statutes. In evaluating the factors set forth in In re Lynch (1972) 8 Cal.3d 410, appellants sentence is not so disproportionate to the crime that it shocks the consciousness, and it does not violate the state constitutional prohibition against cruel or unusual punishment. (People v. Stone (1999) 75 Cal.App.4th 707, 715; People v. Martinez (1999) 71 Cal.App.4th 1502, 1509-1517; People v. Cooper (1996) 43 Cal.App.4th 815, 825-828; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137; People v. Cline, supra, 60 Cal.App.4th at pp. 1337-1338.)
In addition, appellant cannot demonstrate that his sentence violates the probation against cruel and unusual punishment contained in the federal Constitution. (Lockyer v. Andrade (2003) 538 U.S. 63; Ewing v. California (2003) 538 U.S. 11; Harmelin v. Michigan (1991) 501 U.S. 957, 994-995; Rummel v. Estelle (1980) 445 U.S. 263, 284-285; People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.) In Ewing v. California, supra, 538 U.S. 11, the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. The court upheld a 25-year-to-life sentence under the three strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Id. at pp. 20-21, 30-31; see also Lockyer v. Andrade, supra, 538 U.S. at p. 77 [two consecutive terms of 25 years to life for thefts of videotapes not grossly disproportionate].)
Appellant cites to People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II), in support of his argument that his third strike indeterminate term violated the state and federal constitutional prohibitions against cruel and/or unusual punishment. That case, however, addressed a situation where the defendants current offense was "so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions." (Id. at p. 1071.)
"Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law [citation], he failed to `update his registration with the same information within five working days of his birthday as also required by law. [Citation.] Defendants parole agent was aware defendants registration information had not changed and in fact arrested defendant at the address where he was registered." (Carmony II, supra, 127 Cal.App.4th at p. 1071, fn. omitted.)
The probation report showed that prior to the current offense, the defendant was acting in a responsible manner, he had recently married, maintained a residence, participated in Alcoholics Anonymous, was seeking job training and placement, and was employed. (Carmony II, supra, 127 Cal.App.4th at pp. 1087-1088.) While the California Supreme Court had concluded it was an abuse of discretion to dismiss the prior strike convictions (Carmony I, supra, 33 Cal.4th at pp. 376-377), on remand the appellate court held that the third strike term should be reversed because of the constitutional violation. (Carmony II, supra, 127 Cal.App.4th at pp. 1072-1073.)
"It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law. [¶] The state and federal prohibitions against cruel and/or unusual punishment require that the sentence be proportionate to the crime. Accordingly, the current offense must bear the weight of the recidivist penalty imposed. Although the Legislature may impose increased penalties on repeat offenders, recidivism remains a factor in aggravation and may not serve as the reason for imposing increased punishment where the predicate offense serves no rational purpose of the state.
"The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance. In this case the defendant did so one month prior to his birthday and was in fact present at his registered address when the arrest for the present violation was made. The stated purpose of the birthday registration requirement was (and still is) to `update the existing registration information. [Citation.]
"Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone.
"Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions. We shall remand the matter to the trial court for resentencing." (Carmony II, supra, 127 Cal.App.4th at pp. 1072-1073, fn. omitted.)
The instant case is a far cry from the unique facts of Carmony II. Appellant did not commit a technical violation of a statute, but instead added new chapters to his long history of committing burglaries. Carmony IIs analysis is clearly inopposite to the facts of this case.
We cannot say that appellants sentence is grossly disproportionate to his criminal culpability. We find appellants case is not extraordinary, his sentence is not invalid under the gross disproportionality analysis, and it does not shock the consciousness given the nature and circumstances of his conviction and the special allegations found true in this case.
VI.
JUVENILE ADJUDICATIONS AND THE PRIOR SERIOUS FELONY ENHANCEMENT
In addition to the eight prior strike convictions, the amended information alleged appellant suffered two prior serious felony enhancements pursuant to section 667, subdivision (a). One enhancement was based on a prior juvenile adjudication, and the other was based on an adult conviction. The court found all special allegations true, and imposed two consecutive five-year terms for the prior serious felony enhancements. Appellant relies on People v. West (1984) 154 Cal.App.3d 100 (West), and asserts that a juvenile adjudication cannot serve as the basis for a prior serious felony conviction enhancement imposed under section 667, subdivision (a).
West held that since a juvenile court adjudication is not a conviction, it cannot be a "prior serious felony conviction" for purposes of enhancing the sentence for a subsequent adult serious felony conviction under section 667, subdivision (a). (West, supra, 154 Cal.App.3d at pp. 107-108; In re Jovan B. (1993) 6 Cal.4th 801, 814.) Respondent asserts that West is no longer valid in light of the subsequent enactment of the section 667, subdivision (d) of the three strikes law, and cites to the analysis of that section in People v. Garcia (1999) 21 Cal.4th 1, 10. The analysis in Garcia, however, is limited to the interaction between particular juvenile adjudications and the three strikes law; it did not address the separate issue of juvenile adjudications and the section 667, subdivision (a) enhancement for prior serious felony convictions, or whether the enactment of the three strikes law somehow invalidated the analysis in West.
To the contrary, West has been repeatedly affirmed even after the enactment of the three strikes law:
"[A]lthough the Legislature (and the electorate) elected to treat certain juvenile adjudications as prior felonies for purposes of the Three Strikes law, juvenile adjudications cannot be considered either a prior serious felony conviction for purposes of the mandatory five-year enhancement in section 667, subdivision (a) (People v. West (1984) 154 Cal.App.3d 100, 107-108), or a prior theft-related conviction for purposes of section 666, elevating petty theft to a felony. [Citation.]" (People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10; see also People v. ONeal (2000) 78 Cal.App.4th 1065, 1068; People v. Westbrook (2002) 100 Cal.App.4th 378, 384.)
In the instant case, the amended information alleged appellant suffered two prior serious felony conviction enhancements; the first alleged enhancement was based upon an adult conviction, and the second enhancement was based upon the juvenile adjudication. The court found all special allegations true. As to counts I and II, the court imposed third strike terms of 25 years to life, with two consecutive five-year terms for each enhancement as to each count. The court only should have imposed one five-year enhancement for each count, such that appellant aggregate sentence should have been 85 year to life instead of 95 years to life.
VII.
APPELLANTS POSTCONVICTION MOTION FOR NEW TRIAL
Appellant contends the trial court improperly denied his postconviction motion for new trial based on ineffective assistance of counsel, without allowing him to state the reasons for the motion, or appointing conflict counsel to address the merits of the ineffective assistance issues. Respondent concedes the matter should be remanded for the court to reconsider appellants motion.
A. Background
Appellant was initially represented by a deputy public defender. On September 29, 2004, prior to the preliminary hearing, appellant brought a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). There is nothing in the instant record to indicate appellants reasons for the Marsden motion. The minute order reflects the court found a breakdown in the attorney-client relationship, granted the Marsden motion, relieved the public defenders office, and appointed an attorney from the conflict list to represent appellant.
At trial, appellant was represented by Michael Scheid, appointed from the conflict list. Appellant did not raise any Marsden motions or complain about Mr. Scheid during trial. After the jury was dismissed and the court found the special allegations true, appellant personally addressed the court and asked, "What am I looking at, Your Honor, about 85 years to life?" The court replied it was going to be "[a] lot." Appellant said: "And Ill probably get it." Appellant thanked Mr. Houston, the prosecutor, and also thanked defense counsel, Mr. Scheid, and said he did "a wonderful job." Appellant then said, "Nobodys fault but my own, Your Honor. I got myself into this mess. I knew it was going to end up this way. So no hard feelings. I guess chalk it up to dope, man, because dopes about all this. My bad."
On November 28, 2005, the court convened the sentencing hearing. Mr. Scheid, defense counsel, made the following statement.
"MR. SCHEID: ... In this matter, I have a request before sentencing proceeds, and Id request that an attorney be appointed to represent [appellant] in a possible new trial motion, and the grounds would be incompetency of counsel.
"THE COURT: That motion at this point in time will be summarily denied, and [appellant] can pursue whatever issues he cares to raise on appeal."
The court instructed Mr. Scheid to proceed with the sentencing hearing. Mr. Scheid was not prepared because he thought the court would appoint conflict counsel, and requested a continuance for the sentencing hearing. The court granted a continuance.
On November 30, 2005, the court reconvened the sentencing hearing. Mr. Scheid again asked to address the court.
"MR. SCHEID: [¶] ... [At] this point, I object to proceeding as counsel of record since I had requested that new counsel be appointed to advise my client about raising issues about my representation. [¶] I also object to proceeding today. Even though I agreed to todays date simply as a calendaring matter, I wanted my objection noted for the record that I object to proceeding. [¶] I have not prepared a written Romero Motion since I fully expected other counsel to be appointed, but I would request, if the Court decides to proceed over my objection, to make an oral Romero Motion this morning.
"THE COURT: Okay. And your request on behalf of your client is, again, denied, and your client can proceed by virtue of appeal, if thats what he chooses to do."
The court allowed Mr. Scheid to proceed with the Romero motion, and conducted the sentencing hearing.
In the course of the instant appeal, appellants appointed appellate counsel, Ms. Hawkins, filed a motion with this court to expand her appointment and file a petition for writ of habeas corpus. Ms. Hawkins declared the habeas petition would be based on the trial courts summary denial of Mr. Scheids postconviction request. Ms. Hawkins declared she talked to Mr. Scheid about the reasons he requested appointment of another attorney to file a new trial motion. Mr. Scheid explained his ineffective assistance claim was based on his own failure to subpoena an expert identification witness, to challenge the accuracy of Ms. Castillos identification of appellant from the photographic lineup and at trial. Mr. Scheid further explained he should have subpoenaed a handwriting expert to examine the copy of the forged check, because appellant denied writing the check and said that someone else gave the check to him. This court denied appellate counsels motion to expand without prejudice.
B. Analysis
Appellant contends the court improperly denied his postconviction request for another attorney to file a new trial motion based on ineffective assistance. Respondent concedes the matter should be remanded. Given the courts summary and cursory denial of appellants postconviction motion, we will address the applicable legal standards for guidance on remand.
A defendant represented by appointed counsel may request discharge of his attorney and substitution of a new attorney if the defendants right to counsel would be substantially impaired by continuing with the original attorney. (Marsden, supra, 2 Cal.3d at p. 123.) The trial court must give the defendant an opportunity to explain the reasons for requesting a new attorney. The court cannot thoughtfully exercise its discretion without listening to the defendants reasons for requesting a change of attorneys. (Id. at pp. 123-125.)
"When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. Thereafter, substitution 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 defendants right to assistance of counsel. [Citations.]" (People v. Webster (1991) 54 Cal.3d 411, 435 (Webster).)
No formal motion is necessary to trigger the courts obligations under Marsden, provided there is "`at least some clear indication by defendant that he wants a substitute attorney. [Citation.]" (People v. Mendoza, supra, 24 Cal.4th at p. 157.)
"[T]he decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. `A defendants right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused...." (Marsden, supra, 2 Cal.3d at p. 123, italics added.)
A trial courts ruling on a Marsden motion is reviewed for an abuse of discretion, and is not reversed unless the failure to grant the Marsden motion resulted in substantial impairment of the defendants right to effective assistance of counsel. (Webster, supra, 54 Cal.3d at p. 435.)
In People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart), the court addressed the potential for conflict between a defendant and defense counsel when the defendant raises ineffective assistance allegations in support of a new trial motion, and how the trial court should respond to such a new trial motion. The defendant asked his appointed defense counsel to file a motion for new trial based on counsels ineffectiveness. Defense counsel asked to be relieved and for the court to appoint another attorney to handle the new trial motion. The court declined and conducted a closed hearing and asked the defendant the reasons for counsels alleged ineffectiveness. The defendant complained counsel had not called three particular witnesses. The court denied the new trial motion and found it completely without merit, but acknowledged the potential conflict between the defendant and his attorney because of the defendants allegations of ineffective assistance. (Id. at pp. 393-394.)
Stewart relied on Marsden and addressed the procedures which the trial court should follow in addressing a defendants motion for new trial based on ineffective assistance. As a preliminary matter, the court should "elicit from the defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believes he was inadequately represented at trial," in order for the court to thoughtfully exercise its discretion under Marsden. (Stewart, supra, 171 Cal.App.3d at p. 395.) Once learning about the underlying facts, the court is in a position "to intelligently determine" whether it can rule on the defendants new trial motion, or "whether new counsel should be appointed to more fully develop the claim of inadequate representation." (Id. at p. 396.) Where the alleged incompetence relates to events which occurred at trial, such as failing to object or vigorously cross-examine a witness, the trial court is "uniquely equipped to determine whether the defendants claim has merit. In such circumstances it is unnecessary to appoint new counsel to assist in the motion for new trial, since observations necessarily made by the trial court during trial provide sufficient information to intelligently rule on the motion for new trial," and the trial court is in a far better position to evaluate the defendants claim rather than a new attorney "who, unlike the judge, was not present at trial." (Ibid.)
"If, on the other hand, the defendants claim of inadequate representation relates to something that did not occur within `the four corners of the courtroom [citation] or which cannot fairly be evaluated by what did occur at trial, then, in the sound exercise of its discretion, the court may appoint new counsel to better develop and explain the defendants assertion of inadequate representation. Substituted counsel should be provided in instances such as this when, after the trial court has made all inquiries of the defendant and of trial counsel that in the circumstances seem pertinent, it concludes that the defendant has made a colorable claim that he was denied his constitutional right to the effective assistance of counsel. A defendant has made such a colorable claim if he credibly establishes the possibility that his trial counsel failed to perform with reasonable competence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsels failings. A claim of denial of the right to the effective assistance of counsel is not colorable, for example, if it is based in substantial part upon factual representations that are manifestly inconceivable, or upon the failure of trial counsel to produce exculpatory evidence that is legally inadmissible or, if not inadmissible, which would be merely cumulative of other evidence tending to exonerate the defendant that was adequately presented to the trier of fact." (Stewart, supra, 171 Cal.App.3d at p. 396, italics added.)
Stewart thus summarized the trial courts duties in addressing a new trial motion based on ineffective assistance:
"... [W]e conclude that in hearing a motion for new trial based on incompetence of trial counsel, the trial court must initially elicit and fully consider the defendants reasons for believing he was ineffectively assisted at trial. In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent. If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, then, unless for other good and sufficient reason the court thereupon grants a new trial, the court must determine whether to substitute new counsel to develop the claim of incompetence. New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsels failings." (Stewart, supra, 171 Cal.App.3d at pp. 396-397, italics added; accord, People v. Winbush (1988) 205 Cal.App.3d 987, 989-990; People v. Diaz (1992) 3 Cal.4th 495, 573-574.)
As applied to the facts of that case, Stewart found sufficient evidence in the record to conclude that defense counsel was not ineffective for failing to call one of the three witnesses requested by the defendant. As to the other two witnesses, however, the record was silent as to their proposed testimony. (Stewart, supra, 171 Cal.App.3d at p. 398.) "It has been held that failure to interview or call material witnesses may form the basis of a successful ineffective assistance attack. [Citations.]" (Id at p. 398.) Stewart also noted that Marsden required a court to conduct an "active inquiry" into the defendants reasons for a conflict with defense counsel. (Ibid.) Stewart concluded the courts failure to inquire into the substance of the witnesses expected testimony, and denial of the new trial motion without "endeavoring to learn whether the testimony might have been material or even crucial and without appointing new counsel to assist the court in this regard," constituted error. (Id. at p. 398.) Stewart remanded the matter for the trial court to follow the appropriate procedures and "more fully inquire into the basis" for the defendants motion for new trial. (Ibid.)
In People v. Garcia (1991) 227 Cal.App.3d 1369 (Garcia), the court applied Marsden and Stewart to a defendants motion to withdraw a guilty plea based on ineffective assistance:
"[W]here ... a defendant seeks to withdraw a plea on the ground that his attorney of record has not provided adequate representation, we believe that the trial court should follow a procedure comparable to that specified in [Stewart]." (Garcia, supra, 227 Cal.App.3d at p. 1377.)
Garcia perceived a difference between the preconviction Marsden motion and the postconviction Stewart motion:
"[T]he Marsden and Stewart inquiries do not stand on equal footing. In a Marsden inquiry, the trial court is required to order a substitution of attorney where the defendant makes `a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation. [Citation.] As noted above, however, a defendant need only make a colorable claim to be entitled to relief under the standard mandated by Stewart. [Citation.]" (Garcia, supra, 227 Cal.App.3d at p. 1378.)
In People v. Makabali (1993) 14 Cal.App.4th 847 (Makabali), the defendant appeared at his sentencing hearing and moved to withdraw his guilty plea because of defense counsels alleged ineffectiveness for failing to advise him about the immigration consequences of the plea; defense counsel informed the court that he gave such an advisement when they discussed the plea. At defense counsels request, the trial court declared a conflict and appointed separate counsel to investigate the defendants ineffective assistance claim, but did not discharge defense counsel. (Id. at p. 850.) At the next hearing, the conflict counsel did not file a motion to withdraw a plea, explained there was insufficient basis to file such a motion and, without an opportunity to further discuss the matter with the defendant and defense counsel, he did not have enough evidence to present a viable motion. The court found there had been sufficient time for conflict counsel to speak with the defendant and defense counsel, but left open the opportunity for defense counsel to again raise the issue. At the subsequent sentencing hearing, defense counsel represented the defendant and did not again raise the issue. (Id. at p. 850.)
Makabali held the trial court correctly followed the procedure set forth in Garcia and Stewart and appointed conflict counsel for the limited purpose of investigating a motion to withdraw based on ineffective assistance. The conflict counsel, however, indicated he did not uncover any information which would permit him to file a viable motion, and he was not required to do so. (Makabali, supra, 14 Cal.App.4th at pp. 851-852.) Makabali concluded that in light of the strong presumption that conflict counsel acted properly, the conflict counsels statements to the court represented his good faith opinion that a new trial motion based on ineffective assistance would have been frivolous. (Id. at p. 853.)
In People v. Smith (1993) 6 Cal.4th 684 (Smith), the California Supreme Court extensively addressed the interrelation between Marsden, Stewart, and Garcia, clarified Stewart, and disapproved of Makabali. Smith reviewed an appellate court ruling that a defendant who moved for new trial based on ineffective assistance "`is in a far different position than a defendant seeking appointment of new counsel before he has been convicted. If there was any deficiency in his attorneys performance, the defendant needs effective assistance in demonstrating that deficiency and its bearing on the conviction or plea. If the attorney was ineffective in the preconviction stage, counsels ability to effectively pursue the postconviction motion is suspect. And, one can hardly expect the attorney whose performance is being directly challenged to assist the defendant in making the challenge. In such a case the attorney has an inherent conflict." (Id. at p. 692, italics in original.)
Smith disapproved of the appellate courts conclusion that the Stewart/Garcia line of authority employed "`a much reduced standard of proof from that used in preconviction Marsden motions." (Smith, supra, 6 Cal.4th at p. 692.) "This holding necessarily implies that the trial court has less discretion to deny substitute counsel postconviction than preconviction. Herein lies the precise issue of this case." (Ibid.)
Smith clarified the crucial relationship of Marsden to Stewart and Garcia, and posed the following question:
"... When is a defendant entitled to the substitution of new counsel after conviction for future representation, including arguing, if appropriate, that the previous attorney was ineffective? The question is complicated by the obvious conflicts defense attorneys have in defending themselves from claims of incompetence by the very clients they are supposed to represent, and in arguing that their clients are entitled to some sort of relief—such as a new trial or withdrawal of a guilty plea—because of their own ineffectiveness." (Smith, supra, 6 Cal.4th at p. 690)
Smith reviewed Marsden, the "seminal case" regarding the appointment of substitute counsel, and noted that Marsden held "`a defendant has no absolute right to more than one appointed attorney." (Smith, supra, 6 Cal.4th at p. 690, quoting Marsden, supra, 2 Cal.3d at p. 123.) Smith noted that "Marsden and the early cases interpreting it arose in the context of a pretrial motion for substitute counsel," but that Stewart was the first case "applying Marsden posttrial." (Smith, supra, 6 Cal.4th at p. 691.) Smith also reviewed Garcia, particularly Garcias interpretation that "`a defendant need only make a colorable claim to be entitled to relief under the standard mandated by Stewart." (Smith, supra, 6 Cal.4th at p. 692, quoting Garcia, supra, 227 Cal.App.3d at p. 1378.)
"The italicized word `only in the [Garcia] quotation suggests that the defendant has a reduced burden to obtain appointment of substitute counsel posttrial (or, as in Garcia and here, post-guilty plea) than pretrial." (Smith, supra, 6 Cal.4th at p. 692, italics in original.)
Smith rejected the existence of any differences between pre- and postconviction requests for substitute counsel:
"[T]he differences between the two situations are more illusory than real. On balance, we see no reason to have two standards. When the court in Stewart... referred to the defendant making a `colorable claim, it did not state a lesser standard than in Marsden, or create a new and different right than that stated in Marsden; it merely applied the Marsden rule to a particular factual situation, and employed somewhat different language. Therefore, contrary to the implication of [Garcia] ... and the holding of the Court of Appeal in this case, we conclude that the standard expressed in Marsden and its progeny applies equally preconviction and postconviction. Any suggestion that the use of different language in Stewart ... implies a different rule than that of Marsden is disapproved. A defendant has no greater right to substitute counsel at the later stage than the earlier." (Smith, supra, 6 Cal.4th at pp. 693-694.)
Smith acknowledged a defense attorney is "placed in an awkward position" and the "potential for conflict is obvious" when the defendant raises a posttrial claim of ineffective assistance and seeks substitute counsel. (Smith, supra, 6 Cal.4th at p. 694.) "But the same potential for conflict exists before trial as well. And the conflict is unavoidable." (Ibid.)
"Unless we hold that a defendant may never obtain substitute trial counsel, and must instead await whatever appellate or habeas corpus remedy may be available, or that a defendant may obtain substitute counsel on demand—both of which extremes were rejected in Marsden—then it is inevitable that counsel will be placed in a conflict position when a defendant requests substitute counsel, whether the request is before or after conviction. The court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly. This is one of the reasons that Marsden motions are often, as here, heard outside the presence of the prosecutor, where counsel and client may speak more freely.
"Similarly, it is difficult for counsel to argue his or her own incompetence. However, the possibility that the defense might benefit from such an argument can arise at any stage of the proceedings. Critical defenses may be forfeited even before trial begins as a result of ineffective assistance. For example, before trial a defendant might seek new counsel, claiming that current counsel was ineffective in presenting a motion to dismiss the charges on speedy trial grounds, in arguing an in limine motion to suppress a confession, in failing to investigate properly, or because of any of a host of other grounds. If the claim has merit, the trial court might well grant defendant a remedy, such as allowing substitute counsel the opportunity to relitigate a motion that had been ineffectively presented, or granting a continuance for further investigation.
"It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind." (Smith, supra, 6 Cal.4th at pp. 694-695, italics in original, fn. omitted.)
Smith also addressed the possible appointment of multiple attorneys to represent a defendant at the same time. Smith cited to Makabali as an example of the "undesirable consequences" which flow from the appointment of an attorney to argue "that previous counsel was incompetent, without an adequate showing by defendant ...." (Smith, supra, 6 Cal.4th at p. 695.) Smith noted that in Makibali, "[t]he spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendants legitimate interests." (Smith, supra, 6 Cal.4th at p. 695.) Smith found another problem in Makabali:
"[T]he original attorney was apparently not relieved of further representation of the defendant. He represented the defendant at sentencing, after the second attorney did not move to withdraw the plea. [Citation.] We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant." (Smith, supra, 6 Cal.4th at p. 695, italics added; see also People v. Hines (1997) 15 Cal.4th 997, 1024-1026.)
Smith held the appointment of substitute counsel depends upon whether the trial court grants the defendants posttrial Marsden motion:
"... When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.
"We stress, therefore, that the trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea. ... [J]ustice is expedited when the issue of counsels effectiveness can be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early. Thus, when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.
"We stress equally, however, that new counsel should not be appointed without a proper showing. A series of attorneys presenting groundless claims of incompetence at public expense, often causing delays to allow substitute counsel to become acquainted with the case, benefits no one. The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial courts discretion, which will not be overturned on appeal absent a clear abuse of that discretion." (Smith, supra, 6 Cal.4th at pp. 695-696, italics added.)
Smith disapproved any implication in Stewart and Garcia that there was a "shifting standard" for the court to apply when considering a posttrial motion for substitute counsel. (Smith, supra, 6 Cal.4th at p. 696.)
"We thus hold that substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. This is true whenever the motion for substitute counsel is made." (Smith, supra, 6 Cal.4th at p. 696, italics in original.)
In People v. Barnett (1998) 17 Cal.4th 1044 (Barnett), the defendant moved for a new trial based on ineffective assistance, and argued he was entitled to appointment of another attorney to assist in presenting the motion. Barnett relied upon Marsden and Smith, and acknowledged that a defendant "may seek and obtain (upon a proper showing) substitute counsel at any stage of the proceeding in trial court [citation], a defendant is not entitled to simultaneous representation by two attorneys, one of whom is challenging the others competence [citation]. The court did not err in refusing appointment of separate counsel for that limited purpose." (Id. at p. 1112.) The defendant relied on Stewart and argued new counsel must be provided when a new trial motion is based on ineffective assistance and a defendant has made a colorable claim involving counsels conduct outside the courtroom. Barnett cited Smiths extensive analysis of Stewart and postconviction new trial motions based on ineffective assistance, and held that "the burden for obtaining appointment of substitute counsel, as expressed in Marsden and its progeny [citations], applies equally preconviction and postconviction," and that Smith "rejected the notion" that Stewarts "`colorable claim language supports either a greater right to substitute counsel or a reduced burden of proof at the postconviction stage than at any earlier point. [Citations.]" (Ibid.) Barnett applied the Marsden standard and determined the trial court did not err in denying any separate request for substitute counsel. (Id. at pp. 1112-1113.)
These issues were again addressed in Bolin, supra, 18 Cal.4th 297, where the defendant requested appointment of new counsel after the penalty phase of a capital case. The defendant had not expressed any dissatisfaction with Cater, who represented him at the trial and penalty phase, but wanted to file a new trial motion based on ineffective assistance because of inadequacies in the investigative agency hired by Soria, another attorney who represented him prior to trial. The trial court conducted a Marsden hearing, acknowledged the standard in Stewart, and denied the defendants request because he did not present a colorable claim that another attorney was needed to prepare a new trial motion. (Id. at pp. 346-347.)
Bolin held the court did not abuse its discretion in denying the defendants request for another attorney:
"On this record, we find no abuse of discretion in the trial courts refusal to appoint new counsel to prepare and present a new trial motion. The court originally concluded, and later reiterated, that Sorias representation was not inadequate. Because it was able to observe his trial performance, we defer to that assessment absent contrary evidence. [Citation.] With respect to Caters concern about the adequacy of penalty phase investigation, the record contains no colorable claim that it was in fact deficient. At best, he offered only speculation based on hearsay reports, and defendant added nothing to substantiate the allegation. Accordingly, the trial court properly declined to replace Cater for a new trial motion. [Citation.] The court also properly refused to appoint additional counsel for that purpose. As we have noted before, no authority supports the appointment of `simultaneous and independent, but potentially rival, attorneys to represent defendant. [Citation.]" (Bolin, supra, 18 Cal.4th at pp. 347-348, citing Smith, supra, 6 Cal.4th at p. 695.)
We are presented with a very narrow record in the instant case, but it clearly demonstrates the court acted improperly when it summarily refused to hear appellants postconviction request for another attorney, and instead advised appellant that he could raise the issue on appeal. The court did not even allow appellant or Mr. Scheid to state the basis for the alleged ineffective assistance claim. Mr. Scheids statements plainly triggered the courts duty under Stewart and Smith to conduct a postconviction Marsden hearing to determine whether Mr. Scheid should be relieved and another attorney appointed to represent appellant.
"`[W]here fundamental rights are affected by the exercise of discretion by the trial court, ... such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action. [Citations.] To exercise the power of judicial discretion, all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision. [Citation.] A court which is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendants record. [Citation.]" (People v. Lara (2001) 86 Cal.App.4th 139, 165-166.)
We will thus reverse appellants conviction and sentence, and remand the matter for the limited purpose of the trial court conducting a postconviction Marsden motion, as repeatedly and timely requested by Mr. Scheid. The trial court shall follow Smith, Barnett, and Bolin in reviewing appellants contentions at the Marsden hearing. If the court grants the Marsden motion, it shall relieve Mr. Scheid and appoint another attorney to represent appellant, and that attorney shall determine whether a new trial motion should be filed. If the new attorney files a new trial motion and the court grants that motion, appellant will receive a new trial.
However, the judgment will be reinstated if, after the court conducts the Marsden hearing, it either (1) denies the Marsden motion; (2) grants the Marsden motion but the new attorney declines to file a new trial motion; or (3) grants the Marsden motion, the new attorney files the new trial motion, and the court denies that motion.
DISPOSITION
The judgment is reversed and the matter remanded for the court to conduct a postconviction Marsden hearing pursuant to People v. Smith, supra, 6 Cal.4th 684, as discussed ante. If the court grants the Marsden motion, a new trial motion is filed, and the new trial motion is granted, appellant shall receive a new trial. If the court denies the Marsden motion, or a new trial motion is not filed, or a new trial motion is filed and denied, the court shall reinstate the judgment of conviction and resentence appellant, dismissing the first section 667, subdivision (a) enhancement attached to counts I and II, so that appellants aggregate sentence is 85 years to life.
We Concur:
CORNELL, J.
DAWSON, J.