Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC591346
RUSHING, P.J.
Defendant Ali Reza Shaisi was convicted of 15 criminal offenses arising from two distinct instances of alleged shoplifting occurring some four months apart. On appeal he contends among other things that the trial court erred by consolidating the charges arising from the two incidents. He contends that the evidence of the earlier offenses was considerably weaker than that of the later offenses, and was unfairly bolstered by the latter, which would not have been admissible in a separate trial of the former. We reject this and several other contentions, and affirm the judgment of conviction.
Defendant is identified in both appellate briefs as Ali Reza Shaisi. However, at many points in the record his surname is rendered as Shaisibehbahani. On the first day of trial, when the court asked the interpreter to assist with defendant’s name, the interpreter is transcribed as replying somewhat confusingly, “Ali Reza Shaisi. His first name is Ali Reza. Last name is Shaisi Behbahani.” The court said, “Ali Reza Shaisi Behbahani?” to which the interpreter replied, “That's correct.”
Background
The Lunardi’s Incident
Employees of Lunardi’s Supermarket testified that on May 3, 2005, they observed a man later identified as defendant’s father, Jahan Shaisi, pushing around a shopping cart full of large items with a zippered black bag in their midst. This is a technique commonly used by shoplifters to conceal their activities. A store employee notified Henry Carrillo, a head clerk, of the presence of a potential shoplifter. Jahan went through the aisle containing cold medication and quickly left the store.
Carrillo, who was wearing a dark blue Lunardi’s uniform, yelled for help and chased Jahan out of the store, closely followed by two other employees, also in uniform. The three of them caught Jahan in the parking lot and pulled him to the ground. Defendant, driving a white SUV, backed rapidly up to the affray, striking and spinning around one of the Lunardi’s employees, and coming within inches of the others.
Defendant got out of the vehicle brandishing what witnesses described as a knife. From a distance of two or three feet, he motioned with the knife at the store employees, shouting at them. Carrillo testified that he was close enough to tell that the object was a sharp knife, not a pen. He described defendant as thrusting it towards the workers while shouting “hah hah.” Carrillo ordered his fellow employees to back off. They released Jahan and backed away about 10 feet. Defendant and Jahan got into the SUV and drove away.
They left behind the black bag, which was found to contain several boxes of cold and sinus medication. Employees found a corresponding empty gap on the cold medication shelf. Police also found in the bag a court notice bearing Jahan’s name and address. They obtained warrants and arrested defendant and his father. No knife was found.
Officer John Campos questioned defendant after the incident. Defendant told him that he had stopped to refuel his truck near Lunardi’s and that while he was doing so his father had gone into Lunardi’s for a drink. After defendant finished filling the truck, he said, he had driven towards Lunardi’s, where he saw several men on top of his father beating him. He got out of his SUV and tried to help his father. The men then backed away, and his father got in the SUV and they left. After they left the scene, said defendant, his father told him the men thought he had stolen something.
Asked by Campos about the use of a knife, defendant insisted that he had only held a silver and black pen. Campos also asked defendant if he knew that his father had a history of involvement in theft. Defendant replied that he did.
Officer Campos testified that there is only one gas station located near Lunardi’s, and it has its own convenience store that sells beverages.
On May 11, 2005, the prosecutor filed a complaint charging defendant with (1) second degree burglary; (2) two counts of petty theft with a prior; (3) three counts of assault with a deadly weapon with enhancements for personal use of a deadly weapon; (4) three counts of felony false imprisonment with personal use enhancements; (5) one count of accessory to burglary and petty theft; and (6) one enhancement for committing a felony while out of custody on bail.
The Food Maxx Incident
On September 5, 2005, security personnel at a Food Maxx store saw defendant, who was wearing a black and white jacket, taking Actifed cold medication off the shelves and placing it in his pockets. Several employees waited in front of the store for defendant to leave. When a loss prevention officer approached defendant to identify himself, defendant fled across the parking lot. Five Food Maxx employees gave chase. According to all five, defendant turned around and pointed a black handgun at them, whereupon they stopped their pursuit. At least one witness thought that defendant seemed to be trying to fire the weapon. One witness thought he heard a clacking noise coming from the gun.
Defendant fled across the street while store employees followed at a distance. He went onto the roof of a building, where he appeared to be trying to load the weapon or get it to work. Police arrived on the scene and saw defendant running on a freeway ramp, where they apprehended him. He had neither his jacket nor any other items reported to have been in his possession. Police searched the area for at least an hour, and for another three hours the next day, but did not find a gun. Nor did they find the missing store merchandise. A store employee checked the shelf for Actifed cold medication and found that it was empty.
After his arrest defendant initially gave a fictitious name to police officers. Questioned by Officer John Marfia, he denied having a gun and said, initially, that he had pointed a cell phone at the store employees. No cell phone had been found on his person. When the officer told him (falsely) that there was a video recording of him displaying a handgun, he said that the object was a lighter shaped like a gun. Although he claimed to have purchased it at a convenience store, he could not give the store’s location.
On September 26, 2005, the prosecutor filed a second complaint, charging defendant with four counts of second-degree robbery, each with an enhancement for personal use of a firearm; possession of a firearm by a felon; and stating a false name to a police officer. The complaint was subsequently amended to charge that defendant committed the false identification offense while out on bail on two other cases.
Proceedings
On the first day of trial, the prosecutor filed a written motion to consolidate the two complaints. The court granted the motion that same day, over the defense objection that joint trials would permit the prosecution to bolster a weak case (the Lunardi’s incident) with a strong one (the Food Maxx incident). A consolidated information, filed the next day, charged defendant with nine counts arising from the Lunardi’s incident and six arising from the Food Maxx incident: second degree burglary (count 1); petty theft with a prior (count 2); assaults with a deadly weapon on three Lunardi’s employees (counts 3, 5, 7); three counts of felony false imprisonment involving personal use of a deadly weapon (counts 4, 6, 8); accessory after the fact to burglary and petty theft (count 9); second degree robbery of four Food Maxx employees, with personal use of a firearm (counts 10-13); possession of a firearm by a felon (count 14); and false identification to a peace officer (count 15). The information also included three allegations that defendant was out on bail when he committed both the Lunardi’s and Food Maxx offenses.
The jury found defendant guilty as charged on all counts. The court sentenced defendant to 15 years 8 months in prison, plus eight months in an unrelated case. Defendant filed this timely appeal.
In a separate matter defendant was charged with possession of heroin He entered a plea of nolo contendere to that charge.
Discussion
I. Joint Trials
Defendant asserts that the trial court erred in consolidating the complaint arising from the Lunardi’s incident with that arising from the Food Maxx incident because the joint trial of the two sets of crimes was prejudicial. This contention cannot be sustained.
The first question in the consolidation of multiple criminal charges is whether the statutory conditions for such joinder are present. Penal Code section 954 (§ 954) provides that offenses may be jointly charged, or if separately charged may be consolidated, when they are “connected together in their commission,” or constitute “different statements of the same offense or two or more different offenses of the same class of crimes or offenses . . . .” The existence or absence of these conditions presents a pure question of law, which we examine independently of the trial court’s ruling. (People v. Alvarez (1996) 14 Cal.4th 155, 187-188.) The Supreme Court has recently reaffirmed that “because consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala), citing People v. Geier (2007) 41 Cal.4th 555, 578; People v. Stanley (2006) 39 Cal.4th 913, 933; People v. Ochoa (1998) 19 Cal.4th 353, 408-409.)
Here the statutory conditions for joinder are present because the Lunardi’s and Food Maxx charges included “the same class of offenses.” (§ 954.) The charges arising from the first incident included aggravated assault, while those from the second included robbery. Robbery and assault are both classified as crimes against the person. (Pen. Code, Tit. VIII § 211; Pen. Code, Tit. VIII § 220.) They are considered offenses “of the same class.” (People v. Walker (1988) 47 Cal.3d 605, 622; see People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) Since this case involved assault and robbery counts, the threshold requirement for joinder is satisfied.
The statute has also been construed to “ ‘permit[] joinder of different offenses not related to the same transaction or event “if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant.” ’ ” (Alcala, supra, 43 Cal.4th at 1218, citing 4 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Pretrial Proceedings, § 208, pp. 412-413, quoting People v. Scott (1944) 24 Cal.2d 774, 778.) The term “element” is something of a misnomer here; it does not mean an element of the offense in a technical sense, but instead refers to a feature or characteristic common to the offenses proposed for joinder. Thus the defendant in Alcala, was charged with five homicides committed over a 19-month period. (Alcala, supra, 43 cal.4th at p. 1219.) The crimes had a number of similarities, and all appeared to be sexually motivated. (Ibid.) The Court reasoned that “the intent or motivation to brutally kill young females [tied] all of the crimes together.” (Ibid.) “[T]he intent or motivation with which different acts are committed can qualify as a ‘common element of substantial importance’ in their commission and establish that such crimes were ‘connected together in their commission.’ ” (Ibid., quoting People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza), citations omitted [“ ‘ “ ‘the element of intent to feloniously obtain property runs like a single thread through the various offenses’ ” ’ ” and constitutes a “ ‘ “ ‘ “common element of substantial importance’ ’ ” ’ ” in their commission]; see People v. Kemp (1961) 55 Cal.2d 458, 476 [listing as one of the “common elements of substantial importance” among crimes occurring two years apart the circumstance that “[i]n each crime the obvious motive was satisfaction of appellant's sexual desires”]; People v. Poon (1981) 125 Cal.App.3d 55, 69 [“[t]he offenses joined here share numerous ‘common elements’; the most significant being sexual motivation and young girl victims,” and accordingly “the offenses were ‘connected together in their commission’ for purposes of section 954”]; People v. Walker (1952) 112 Cal.App.2d 462, 471 [listing as a “common element of substantial importance” between two crimes the circumstance that “in each instance a woman was kidnapped and a common intent is clearly disclosed”].)
If the statutory conditions for joinder are present, the trial court may order joint trials, and indeed should do so in the interest of judicial economy, unless the defendant establishes that he would be unduly prejudiced. (Mendoza, supra, 24 Cal.4th at p. 160 [“When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendant’s severance motion”].) The court’s refusal to require separate trials may be reversed only if it constitutes an abuse of discretion, i.e., “ ‘ “ ‘ “falls outside the bounds of reason.” ’ ” ’ ” (Alcala, supra, 43 Cal.4th at p. 1220.) In considering whether the order can be sustained, a reviewing court typically considers the following questions: “(1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case.” (People v. Marshall (1997) 15 Cal.4th 1, 27-28 (Marshall), citing People v. Sandoval (1992) 4 Cal.4th 155, 172-173.)
We first consider cross-admissibility, i.e., whether evidence of either incident would have been admissible in a separate trial of the other incident. Since defendant’s claim of prejudice depends on the premise that joinder unfairly bolstered the prosecution case as to the earlier, Lunardi’s incident, our inquiry is properly focused on whether, in a separate trial of that incident, evidence of the later, Food Maxx incident would have been admissible.
Respondent contends that evidence of the Food Maxx incident, in which defendant himself attempted to steal products containing pseudoephedrine, tended to show that he intentionally aided and abetted his father’s commission of an essentially identical crime in the Lunardi’s incident. The argument would be stronger if it did not incorporate a factual premise of which the jury never heard, and for which no evidence was admitted. Thus respondent quotes the prosecutor’s assertion in support of consolidation that “ ‘[d]efendant was engaging in the practice of stealing over the counter cold medication to either manufactur[e] methamphetamine or trade for the illegal drug.’ ” The prosecutor sought to present this theory at trial by offering expert testimony on the practice of “smurfing” or “gophering,” by which raw materials for the manufacture of methamphetamine are obtained by “steal[ing] large quantities of pseudoephedrine . . . .” The prosecutor had a police expert available to testify that defendant’s conduct in these cases was consistent with this practice. But the trial court excluded this evidence on the ground that in light of other factors that need not be detailed here, its probative value was outweighed by its potential for undue prejudice. Later the court briefly revisited the topic, stating that in the absence of some new factor, “there is going to be no connection made between pseudoephedrine and methamphetamine in this trial . . . .”
Respondent’s argument for cross-admissibility thus depends on a factual premise that was not only absent, but pointedly excluded from the trial. Even without that evidence, however, it could be reasonably inferred that defendant’s own theft of a specific pharmaceutical in quantities larger than he might reasonably expect to use tended to show a motive to aid and abet his father’s earlier theft of the same substance. That is, his pocketing of a number of boxes of the drug—more than he might reasonably expect to be able to use—suggested a desire to not merely to acquire, but to accumulate that particular substance. This in turn supported an inference, if a less than compelling one, that he had a similar object in providing transportation for his father on the earlier occasion. Similarly a man’s repeated thefts of a particular model of car would tend to support an inference that he intended another such theft when found after hours inside the premises of a dealer of that model. The inference is not simply that he did it before and therefore intended to do it again; such reasoning is a mere euphemism for an inference based on criminal disposition, and as such prohibited by Evidence Code section 1101. Instead the evidence of other thefts of a particular kind of property may support an inference that the defendant seeks to collect or hoard that particular property, and thus tend to negate a claim of innocent intent. This requires no evidence of criminal disposition as such. Indeed, the defendant might have acquired the property lawfully in the past: A Titian collector might be implicated in the theft of a particular work from an owner who refused to sell it. The inference is of course strengthened by evidence of the purpose to which the defendant puts the property, e.g., building a collection, or trading for methamphetamine. But it does not require that evidence if it shows the defendant’s need or desire for property of a certain type.
The conceptual disorder surrounding modern applications of the rule against character evidence is discussed, albeit in the context of the parallel federal rules, in The Federal Rules of Evidence in Retrospect: Observations from the 1995 AALS Evidence Section: Intellectual Coherence in an Evidence Code (1995) 28 Loy. L.A. L. Rev. 1259.
In any event we need not finally decide whether the Food Maxx evidence would have been admissible in a separate trial of the Lunardi’s charges because the trial court properly found that none of the additional indicators of undue prejudice was present. In Mendoza, supra, 24 Cal.4th at page 161, the court wrote that “the absence of cross-admissibility does not by itself demonstrate prejudice,” i.e., does not preclude joint trials. In other words, even where a joint trial will include evidence that would not be cross-admissible in separate trials of the joined offenses, the court must weigh the benefits of joint trials against the risk of prejudice arising from the jury’s exposure to some evidence that is not admissible as to one or the other of the cases. It is in this context that the court must ask whether any of the non-cross-admissible evidence would be “unusually likely to inflame the jury against the defendant,” or likely to bolster a “weak case” that has been “joined with a strong case or another weak case.” (Marshall, supra, 15 Cal.4th at p. 27.)
Here there was nothing “inflammatory” about either charge. Defendant attempts to suggest otherwise by writing that joining the two cases permitted the prosecution “to inflame the senses of the jury by presenting evidence that Shaisi was a habitual criminal.” We hardly think evidence of two thefts showed defendant to be a habitual criminal. Nor do we think a history of habitual shoplifting, if made known to the jury, constitutes the kind of “unusually” inflammatory evidence referred to in Marhsall, supra, 15 Cal.4th at page 27.
Defendant also asserts that the prosecution was “permitted to use prejudicial character evidence (from Food Maxx) to establish Shaisi as being the type of person who would commit a petty theft in the Lunardi’s case.” It is true that if evidence of the Food Maxx case would not have been admissible in a separate trial of the Lunardi’s case, the jury should have been instructed on the limited purposes for which the evidence could be considered. (See CALCRIM Nos. 303, 304; see Evid. Code, § 355.) However, the court had no sua sponte duty to give such an instruction (People v. Simms (1970) 10 Cal.App.3d 299, 311), and there is no contention before us that counsel rendered ineffective assistance on this point. Similarly, insofar as the Food Maxx evidence was deemed admissible to show guilt in the Lunardi’s case under Evidence Code section 1101, subdivision (b), the jury could have been instructed on its proper consideration. (See CALCRIM No. 375.) Again, however, the court had no duty to give such an instruction on its own motion except in “the occasional extraordinary case in which unprotested evidence of [other] offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (People v. Collie (1981) 30 Cal.3d 43, 64.) For reasons discussed in more detail below, we do not view this as such a case.
A more colorable point is found in defendant’s argument that the Lunardi’s case, or part of it, was weaker than the Food Maxx case, so as to be unfairly bolstered by evidence of the later incident. Two of the nine charges arising from the Lunardi’s incident—burglary and petty theft with a prior—necessarily rested on the premise that defendant aided and abetted the initial acts of shoplifting perpetrated by his father. As the jury was told, defendant could only be guilty as an aider and abettor if he “knew that the perpetrator”—his father—“intended to commit the crime,” and if, “[b]efore or during the commission of the crime,” he “intended to aid and abet the perpetrator in committing the crime.” (See CALCRIM No. 401.) More specifically, the jury was told that “To be guilty of second degree burglary as an aider and abett[o]r, the defendant must have been known [sic] the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate or encourage the commission of the burglary before the perpetrator finally left the structure.” (See CALCRIM No. 1702.) Evidence that defendant himself stole similar merchandise three months after his father’s attempted theft might be taken by the jury—improperly, if it was not admissible for that purpose—to help carry the prosecution’s burden of showing that defendant entertained the requisite knowledge and intent at the time his father entered the store.
Defendant was also charged with three counts of aggravated assault based on his waving a knife at the Lunardi’s employees. His principal defense to that charge was that he acted in lawful defense of his father. As the jury was told and defense counsel emphasized, the prosecution bore the burden of negating the claimed justification beyond a reasonable doubt. In other words, the prosecution had to persuade the jury beyond a reasonable doubt that defendant did not “reasonably believe[] that his father was in imminent danger of suffering great bodily injury or was in imminent danger of being touched unlawfully.” (CALCRIM No. 3470, italics added; see People v. Roe (1922) 189 Cal. 548, 564-565; People v. Williams (1977) 75 Cal.App.3d 731, 741-742.) Although the jury was not instructed on the point, defendant’s father was not being “touched unlawfully” if he was being detained on probable cause for shoplifting. (Pen. Code, § 490.5, subd. (f)(1) [“A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises”].) Accordingly, defendant’s posited ignorance of his father’s reasons for entering Lunardi’s also supported his defense-of-another defense. (See CALCRIM No. 3470.) Again, the defense would be unfairly weakened if the jury improperly relied on evidence of the Food Maxx incident to conclude that defendant did not believe his father was being unlawfully touched by the Lunardi’s employees, but knew they were attempting to thwart a theft.
We do not believe, however, that the trial court strayed beyond the bounds of reason in failing to find that these risks were sufficient to require separate trials. Joinder is said to be permissible so long as the evidence of each charge is strong enough that consolidation is unlikely to affect the verdict. (People v. Ochoa (2001) 26 Cal.4th 398, 423; People v. Arias (1996) 13 Cal.4th 92, 130, fn. 11.) The trial court could reasonably conclude that the evidence supporting the Lunardi’s charges was strong enough to make it highly unlikely that the jury would be affected by the Food Maxx evidence. Contrary to defendant’s contention, there was strong independent evidence—albeit necessarily circumstantial—that defendant drove his father to Lunardi’s with full knowledge that his father intended to enter the store to commit theft. Officer Campos testified that he asked defendant “if he was aware of his father’s past history of being involved in thefts and he said yes, yes, he was aware of that.” Although the criminal “history” to which this testimony alludes was not further described, it was enough for the jury to know that defendant acknowledged that his father had a history of stealing and that he, defendant, knew about it. Added to this knowledge was the implausibility of defendant’s own account of the incident, which in light of the other evidence was quite capable of raising strongly incriminating inferences by itself. Thus defendant told Officer Campos that his father had gone into Lunardi’s to get a beverage while defendant pumped gas at a nearby station. But the officer testified that the station itself sold beverages. Why would his father walk the extra distance to buy a drink in the store? That inquiry suggests an even more curious, and perhaps damning, one: The jury could easily infer that defendant could not have failed to notice the black overnight bag his father was carrying into the store. There was no evidence that the bag was or could have been concealed on his father’s person. Given defendant’s claimed belief that his father had entered the store to buy a drink, what could defendant have supposed the black bag was for? The only answer that presents itself is that his father intended to extend his acknowledged “history of being involved in thefts” by entering the store to steal merchandise.
Jurors could also reasonably conclude that defendant’s conduct upon seeing his father’s pursuit and capture by store employees was not that of a man who witnesses a family member under wrongful attack but that of a getaway driver performing his prearranged duties. Promptly after his father left the store, defendant backed rapidly up to the affray, leapt from his vehicle, and held his father’s pursuers at bay just long enough to permit his father to board the vehicle. That the supposed assailants were conspicuously dressed in store uniforms might have caused an innocent man to pause and inquire as to the meaning of their conduct, but defendant—despite the seemingly reassuring advantage of being the only person armed with a weapon, and despite the employees’ immediate desistance from the supposed attack—did not pause or inquire, but himself jumped back in the vehicle and sped away. Nor did he stop at a place of safety to report the supposed assault.
Other evidence supported an inference that defendant was acting as a getaway driver and not merely a loyal son. As defendant’s father fled his pursuers, he ran not toward the gas station almost straight in front of Lunardi’s, but toward a bank around the corner, which required a hard left turn out of the Lunardi’s exit. The jury did not have to consider it blind luck that this—not the gas station—was where defendant was apparently located when Jahan emerged from the store. At least, when first noticed by witnesses he was backing toward his father not from the direction of the gas station, but from between Lunardi’s and the bank—a location the jury could conclude allowed defendant to inconspicuously watch the Lunardi’s exit.
Moreover, there is little likelihood that the jury would have taken seriously defendant’s claimed perception of an inexplicable assault upon his father. Certainly this is not what a bystander described; she saw “a man running towards the vehicle” chased by “Lunardi’s employees wearing their blue aprons . . . .” The employees “were able to put their hands on and grab” the running man “before he was able to get into the car.” At that point defendant got out and yelled at the employees in an angry, threatening voice, while waving and pointing a shiny object at them.
The jury was of course entitled to entertain a reasonable doubt about defendant’s advance knowledge of his father’s larcenous plans. The question for us, however, is whether there was any significant likelihood of its doing so if given only the above circumstances and not exposed to the evidence of defendant’s own larcenous sortie at Food Maxx. We conclude that there was not. The circumstances of the Lunardi’s incident, by themselves, were gravid with the inference that defendant accompanied his father to the scene in order to act as a getaway driver, not to get gas.
Defendant repeatedly observes that there is no evidence of any attempt by him to regain control of the bag containing the stolen merchandise. The unspoken inference, apparently, is that if defendant had been intent on acquiring pseudoephedrine products, and he knew that the bag contained them, he would not so lightly have permitted Lunardi’s employees to keep the bag. But it seems to us that defendant’s relative indifference to the fate of the bag, and its contents, supports a contrary inference of at least equal potency. According to the hypothesis arising from his account to Officer Campos, the bag must have appeared to him to belong to his father; for all he knew it contained valuable property also belonging to his father; when his father’s pursuers seized the bag, it must have appeared to defendant that his father was the victim of a robbery. Yet defendant did nothing to recover his father’s property even though he alone was armed and the hypothetical robbers showed no heart for pressing the issue after they saw a knife. All he did was hold them at bay so that he and his father could flee the scene. In this light, defendant’s very willingness to abandon the bag rather than challenge his father’s pursuers for it suggests that he knew it contained nothing worth staying on the scene for. Nor, apparently, did he ever attempt to secure the intervention of authorities to secure its recovery. Again, the best and simplest explanation for his conduct is that he knew the bag contained freshly stolen merchandise and that it was better to leave it behind than to remain to face criminal prosecution.
In sum, while we agree that the evidence supporting the Lunardi’s charges was necessarily more circumstantial than that supporting the Food Maxx charges, and thus inevitably more susceptible to a reasonable doubt, we cannot say that the trial court abused its discretion in concluding that the evidence was not so weak that it would be unfairly bolstered by joinder with the Food Maxx charges. With or without joinder, the jury was very likely to conclude that defendant knew his father was entering Lunardi’s in order to steal merchandise. That fact dispels all claims of undue prejudice.
II. Dual Culpability as Abettor and Accessory
Defendant was convicted, in connection with the Lunardi’s incident, of both acting as a principal in the burglary and theft perpetrated by his father, and of acting as accessory to those offenses. The trial court imposed an eight-month term for the burglary and stayed sentences on the theft and the accessory charge pursuant to Penal Code section 654. Defendant contends, however, that upon his conviction of either of the predicate offenses, the accessory charge should have been dismissed. He asserts that he could not properly be simultaneously convicted as both a principal and an accessory after the fact. His argument seems to combine three distinct points: (1) the evidence is insufficient to establish his guilt as a principal; (2) he cannot be guilty both as a principal and an accessory; and (3) he could not be convicted as an accessory because there was no evidence that he knew his father had committed a felony. We reject the first contention but sustain the second. We do not reach the third.
We have no doubt that the evidence was sufficient to sustain all of the charges. We have addressed a similar issue in the preceding part, where we concluded that the Lunardi’s charges did not constitute a weak case so as to be unfairly bolstered by evidence of the Food Maxx incident. The evidence cited there provided ample basis for the jury to find beyond a reasonable doubt that defendant intentionally helped his father to commit burglary and theft. A fortiori, the evidence supports a finding that defendant assisted his father after the offense by freeing him from his pursuers and spiriting him away from the scene to a place of safety.
A more difficult question is presented, however, by defendant’s contention that he could not be convicted on both of these theories. We find much to recommend a rule that categorically prohibits conviction for acting as both an abettor and an accessory to the same offense. After all, the actual perpetrator of the offense cannot be convicted of a second distinct crime merely for attempting to avoid apprehension and punishment. (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1360 (Eduardo M.).) Why should one whose guilt depends on assisting another in the commission of an offense be exposed not only to punishment equal to the perpetrator’s, but to additional punishment—to which the perpetrator is not exposed—for further assistance in evading arrest? A proper penal jurisprudence rests on the careful coordination of pragmatism, proportionality, and fairness. In the present context such a process seems to point toward a categorical rule that with respect to a given predicate offense, a defendant may be liable as an aider and abettor, or as an accessory, but not both.
This is the acknowledged rule at common law and in a number of our sister states. (See Eduardo M., supra, 140 Cal.App.4th at p. 1359, italics in original [cited cases “permit the defendant to be charged and tried as both a principal and an accessory . . ., but . . . require that the jury be told that the defendant cannot be convicted of both”].) California cases have reached conflicting conclusions, largely in dicta. (Id. at p. 1359, citing People v. Prado (1977) 67 Cal.App.3d 267, 271-274 (Prado) [approving common-law rule]; People v. Francis (1982) 129 Cal.App.3d 241, 246-247, 251-252 [expressing reservations but following Prado; error conceded]; People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1256 [assuming Prado states correct rule, failure to instruct on it was not reversible error where trial court struck accessory conviction]; People v. Mouton (1993) 15 Cal.App.4th 1313, 1324 (Mouton) [limiting Prado to situations where both convictions rest on same conduct]; People v. Riley (1993) 20 Cal.App.4th 1808, 1816 (Riley) [following Mouton, affirming both convictions].)
The court in Eduardo M., reviewed the above authorities, but avoided the broader question by holding “that a defendant who is convicted as a principal cannot also be convicted as an accessory solely on the basis of his immediate flight from the crime scene and his subsequent denials of his own involvement, even if that conduct incidentally helps other principals to escape.” (Eduardo M., supra, 147 Cal.App.4th. at p. 1359.) A similar approach was taken in In re Malcolm M. (2007) 147 Cal.App.4th 157, 169 (Malcolm M.), where the court expressed doubt about any categorical rule of exclusivity, but then adopted a narrower rule rendering its broader comments dictum: “[I]n order to find someone to be an accessory after the fact to a felony in the commission of which the person is also a principal by virtue of his or her having aided and abetted its commission, the acts constituting that felony must have ceased at the time of the conduct that [constitutes acting as an accessory].” (Id. at p. 171.)
The present case may likewise be decided on a narrow basis without taking a position on the soundness of a more categorical rule. The foregoing cases posit at least three circumstances in which dual convictions are not permissible: (1) where they rest on the same conduct (Riley, supra, 20 Cal.App.4th at p. 1816); (2) where the accessory theory depends on nothing more than the defendant’s incidentally assisting other participants by his own escape and denials of culpability (Eduardo M., supra, 147 Cal.App.4th at p. 1359); and (3) where the acts constituting the underlying felony have not concluded at the time of the conduct relied on for the accessory charge (Malcolm M., supra, 147 Cal.App.4th at p. 171). Dual convictions here ran afoul of at least the first two of these limitations, because the prosecutor relied on at least some of the same conduct to establish defendant’s culpability both as a principal and as an accessory, and also relied on defendant’s merely driving away from the scene to establish the accessory charge. Thus he told the jury that defendant’s aiding and abetting consisted in “first driving to that location and, second . . .[,] trying to pull those store employees off of his dad so his dad could get away . . . .” He then asserted that defendant acted as an accessory when he “drove [his father] away from the scene,” as well as when he “got him out of the clutches of [the Lunardi’s employees] . . . .” The jury was thus invited to convict defendant of being an accessory on at least two of the grounds that the cases have held impermissible. It follows that the resulting conviction cannot stand.
This very proliferation of qualifications and limitations weighs in favor of a more categorical approach. One criterion by which any rule should be evaluated is its administrability, i.e., how efficiently can it be applied? Every time a court considers introducing a new qualification, either to justify a departure from the general rule or to obviate an objection to it, the court should ask whether the proposed complication can itself be justified. As the rule’s complexity increases, so does the difficulty of its application; and as the difficulty rises, so do the costs of administration. If these costs are not counterbalanced by some ponderable benefit, the proposed complication is at best suspect; and if the rule can only be saved by attaching numerous such complications, the rule is suspect. Moreover, as a rule becomes more complex and difficult to apply, its results become ever less predicable. Unpredictability weakens its power to influence conduct as well as its ability to give notice of what conduct falls within its bounds. The latter effect jeopardizes its claim to legitimacy in light of the constitutional commitment to permit punishment only after fair warning of what will trigger it.
III. False Imprisonment
Defendant was convicted on three counts of false imprisonment by violence and menace in violation of Penal Code sections 236 and 237. He asserts that these convictions cannot stand because the evidence was insufficient to sustain them. The real gist of the challenge is that the facts asserted by the prosecutor in support of the charge—and thus inferentially found the jury—were insufficient as a matter of law to constitute the offense. As defendant puts it, “The facts argued by the prosecutor do not support a finding [of] false imprisonment.” (Italics added)
The prosecutor argued that the false imprisonment occurred when, faced with defendant’s knife, the three Lunardi’s employees had to “let go of Jahan and . . . back away . . . .” This statement echoed the testimony of a bystander that she saw defendant yelling at the employees while motioning at them with a metallic object, and that as defendant approached them, they raised their hands and backed away from a man on the ground. Similarly, Lunardi’s head clerk Henry Carrillo testified that when he saw defendant’s knife, he told his employees to “back off,” whereupon they “let the gentleman go and backed off several feet.” The distance was estimated in the courtroom as eight to ten feet. Another of the employees also accepted an estimate that they retreated “ten or so feet . . . .” The question is whether the forced movement thus described was sufficient to sustain a conviction for false imprisonment.
“False imprisonment is the unlawful violation of the personal liberty of another.” (Pen. Code § 236.) It is punishable as a felony when it is “effected by violence, menace, fraud, or deceit . . . .” (Pen. Code, § 237, subd. (a).) “The essential element of false imprisonment, be it misdemeanor or felony, is restraint of the person.” (People v. Fernandez (1994) 26 Cal.App.4th 710, 717; see People v. Reed (2000) 78 Cal.App.4th 274, 280.) Although the term “imprisonment” suggests confinement, and the cases often employ that term, it is settled that the crime can occur even though no enclosure is involved. “ ‘ “ ‘Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment.’ ” ’ [Citations.]” (People v. Fernandez, supra, 26 Cal.App.4th at p. 717, italics added.)
The gist of defendant’s challenge appears to be that the infringement on movement shown here was simply too slight in spatial terms, as well perhaps as in terms of duration, to constitute the “violation of . . . personal liberty” required by section 236. With respect to duration, the rule is that the restraint must be “ ‘ “for an appreciable length of time, however short.” ’ [Citation.]” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) Defendant forced the victims to back away from his father long enough to permit the latter to escape their lawful control. We believe that constitutes an “appreciable” time.
The spatial question is more difficult. It seems likely that some forced movements might be so trivial that they ought not to be held sufficient to sustain a conviction for false imprisonment. But it would be a mistake to concentrate exclusively on the physical distances involved. Since the gist of the crime is an infringement on personal liberty, i.e., freedom of movement, the question must be whether the infringement was of sufficient gravity to justify criminal culpability. That question in turn depends on the importance of the interest invaded and the magnitude of the invasion. Pertinent questions logically include not only the extent and duration of the physical displacement, but also the importance of the activity interfered with and the degree to which the victim has been prevented from engaging in it.
We find a useful illustration in People v. Riddle (1987) 189 Cal.App.3d 222 (Riddle), where the defendant ordered a teenager’s parents out of their home at gunpoint and kept them out for several hours while he raped their daughter. In absolute terms the parents may not have been forced to move very far, and outside the zone of wrongful exclusion they had the freedom of the world. But this is obviously beside the point. The defendant had not only debarred them from their own home, but by constraining their physical freedom had prevented them from exercising their right, duty, and bred-in-the-bone parental need to defend their child against outrage. We would have no difficulty in concluding, as the court did there, that the restraint was of sufficient gravity to sustain a conviction for false imprisonment.
Although the present case involves no outrage comparable to the one in Riddle, we believe it reflects a sufficient invasion of the victims’ physical liberty to justify punishment for false imprisonment. Forcing a person to move 10 feet for a few seconds might in another case be too slight an infringement to justify culpability, but here the forced movement was intended to and did directly thwart the victims’ exercise of their lawful right to investigate an apparent theft of their employer’s merchandise and prevent the suspect from escaping. (See Pen. Code, § 490.5, subd. (f).) When defendant forced them by threats and violence to release their captive and retreat, he imposed sufficient restraint to sustain the charge.
IV. Use of Gun
Defendant’s sentence included four ten-year firearm enhancements under Penal Code section 12022.53, subdivision (b), which provides for such enhancements where the defendant is found to have “personally use[d] a firearm” in the commission of a robbery. A “ ‘firearm’ ” is “any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.” (Pen. Code, § 12001, subd. (b).) Defendant contends that the evidence at trial was too insubstantial to permit a rational trier of fact to find beyond a reasonable doubt that the object he displayed in the Food Maxx incident was in fact a gun. Thus appellate counsel writes, “[T]he state’s evidence consisted of five eyewitness who had a very, very brief glimpse of an object that looked like a firearm. This evidence is not the type of ‘substantial evidence’ required for a reasonable trier of fact to find a defendant guilty beyond a reasonable doubt. [Citation.] Thus the evidence is insufficient to prove beyond a reasonable doubt that the object brandished by Shaisi was a genuine firearm as defined by section 12001(b).”
Having carefully reviewed the testimony in question, as well as other evidence bearing on the point, we emphatically reject this contention.
It is of course the prosecution’s burden in a criminal case to prove every element of a charged offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) This rule extends to sentence enhancements. (People v. Tenner (1993) 6 Cal.4th 559, 566.) But in reviewing the sufficiency of the evidence, the relevant inquiry is “whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139.) “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Here five witnesses testified that defendant pointed a black handgun at them. Security officer Michael Davis testified that defendant drew a black gun and pointed it at him. Davis was standing approximately seven feet from defendant at the time. Defendant held the gun in his right hand and waved it at the victims for a split second. The gun appeared to Davis to be a nine-millimeter. Davis is familiar with nine-millimeter handguns because he carried one in the military for 26 years. The gun was magazine fed, not a revolver. On cross examination, Davis conceded that he could not determine whether the gun was real or a replica.
Security officer Mike Cibrian testified that he was three to five feet away when defendant drew a gun from his waistband area. Defendant held the gun in his right hand with his finger on the trigger. Cibrian observed defendant making a jabbing motion with the gun. Cibrian described the gun as a black semiautomatic gun, which looked “kind of like a nine millimeter.” The gun was not a revolver. It appeared to be six to eight inches long. It had an opening at the tip of the barrel. Cibrian testified on cross-examination that it could have been another type of gun, such as a .45. However, he maintained that the size of the weapon was closest to a nine-millimeter. His familiarity with weapons came from browsing gun magazines at work. He could not identify the manufacturer of the weapon.
Roberto Olivo testified that he was six to eight feet from the defendant when he observed him pull a weapon from his waistband. Defendant held the weapon in his right hand and pointed it at Olivo and the other victims. Defendant was waving the gun back and forth and jerking it. He appeared to be trying to pull the trigger. After he stood there for a minute he turned and resumed running. He crossed the parking lot and an adjacent street and went on top of a building. There he seemed to be trying to shove something up into the handle of the weapon. Based on his experience with weapons, including semiautomatics and weapons that take clips, Olivo thought defendant was attempting to put a magazine into the gun.
Olivo described the gun as a black semiautomatic that “looked like a nine millimeter.” There was an opening at the front of the gun. There was no plastic covering or coating to suggest that it was an imitation gun. It was not a pellet gun because the opening was too big. He did not know the diameter of an air soft pellet but this was “no BB gun.” He estimated the barrel diameter at a quarter to half inch. The gun did not have the round chamber in the middle characteristic of a revolver. Although Olivo affirmed at trial that he was “absolutely certain it was a nine millimeter weapon,” he had told officers at the time of the occurrence that it was a .45. At the preliminary hearing he had testified that he could not recall whether it was a nine millimeter or a semiautomatic, and that he did not know whether a nine-millimeter was a semiautomatic.
Although the preliminary hearing testimony was not itself placed in evidence, the question producing this response apparently posited an undemonstrated dichotomy between the caliber of a handgun and its type of action. The jury had no reason to suppose that this and many of counsel’s other questions made any more sense—and in fact they did not make any more sense—than directing a witness to say whether the car he saw was a sedan or a hybrid, or to affirm or deny that hybrids are sedans. Some hybrids are sedans, as some nine-millimeter handguns are semiautomatics; and some semiautomatics are nine-millimeters, as some sedans are hybrids. But not all hybrids are sedans, and not all nine-millimeter handguns are semiautomatics. A witness may be understandably confused by questions supposing otherwise, and a jury may reasonably refuse to view such confusion as grounds for discounting the witness’s testimony.
Don Diego Garcia testified that he was about 20 feet away when defendant pulled a black gun from his midsection area with his right hand. Defendant appeared to be trying to fire it. Garcia heard a “clacking” noise as defendant thrust the gun in the direction of the employees. Garcia testified that the weapon was approximately eight inches long. He acknowledged that he was unfamiliar with guns, and did not know the difference between a revolver and a semiautomatic.
Jose Magana saw defendant pull out a gun with his right hand and point it at the employees. Magana recalled the gun as black and eight to nine inches long. He conceded on cross-examination that it might have been a toy, but it looked real to him. He followed defendant at a distance and saw him go up onto a roof. While on the roof, defendant appeared to try to manipulate the weapon by moving his hand along its top.
The foregoing testimony was more than sufficient to establish beyond a reasonable doubt that defendant brandished a firearm at the witnesses. All five witnesses described a weapon that did not vary in its observable details—a black semiautomatic with an overall length of eight or nine inches. Defendant makes much of supposed discrepancies in the witnesses’ descriptions, but we see no serious discrepancies. He emphasizes uncertainties surrounding the caliber of the weapon—nine-millimeters vs. .45—but nothing before the jury suggested that this distinction had any material bearing on the accuracy of the witnesses’ testimony. Indeed, it is doubtful that anyone but a firearms expert, or at least aficionado, could tell by mere observation whether a given firearm was one caliber or the other unless it happened to be a model with which he or she was personally familiar. The jury was certainly entitled to give weight to counsel’s attempts in this respect, but it was hardly obligated to do so. It could view them as the equivalent of seeking to impeach a witness to a traffic accident over his inability to specify the tire size of one of the involved vehicles.
In any event, the mere presence of discrepancies between the accounts of eyewitnesses is not enough to impeach a jury’s determination. “The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]” (In re Frederick G. (1979) 96 Cal.App.3d 353, 366; see People v. Jones (1970) 10 Cal.App.3d 237, 247; Evid. Code, § 411.) “ ‘To warrant the rejection by a reviewing court of statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.’ ” (People v. Jones, supra, 10 Cal.App.3d at p. 247; People v. Perrin (1967) 247 Cal.App.2d 838, 844; People v. Caldwell (1984) 36 Cal.3d 210, 219.)
Defendant alludes to the possibility, which some of the witnesses acknowledged, that the object brandished at them might have been a replica rather than a real firearm within the statutory definition. This possibility was for the jury to evaluate, and given the absence of any supportive evidence the jury was entitled to dismiss it as sheer speculation. Indeed, on the present record the hypothesis was worse than speculative; it could quite reasonably be found incompatible with defendant’s own conduct and his post-arrest statements. Two witnesses testified that defendant appeared to be trying to fire the gun. Two witnesses also described conduct consistent with attempting to load it or clear a jam. After his arrest defendant initially told police that he brandished not a replica firearm, but a cell phone. When police shook his confidence in that account by telling him they had video evidence of his displaying a handgun, he did not claim to have displayed a replica firearm or air soft gun, as counsel implied at trial, but a cigarette lighter shaped like a handgun. He was unable to identify the store from which this object was purchased or to account for its whereabouts after his escape. The jury might quite reasonably wonder why, if the object used by defendant in the crime was not a real firearm, he did not hang onto it, or at least describe its provenance, so that he could prove he had not possessed a firearm.
The evidence was more than sufficient to dispel any reasonable doubt about the true nature of the object in question.
V. Robbery With Nonviolent Initial Taking
Defendant contends that his conviction of robbery in connection with the Food Maxx incident cannot be sustained because (1) he did not use force in taking the property in question, but only in effecting a getaway; and (2) applying the robbery statute to such conduct, where the taking is a nonviolent petty theft, exposes the statute to constitutional challenge for vagueness. He acknowledges that existing California precedent supports his robbery convictions, but he contends that this precedent “must be re-examined in light of these constitutional challenges to the statutory construction of the robbery charges.”
“ ‘[T]he “void for vagueness” doctrine dictates that the terms of a penal statute must be explicit enough to inform those who are subject to it what conduct on their part will render them liable to its penalties. A statute which requires individuals of ordinary intelligence to guess at its meaning and differ as to its application violates due process.’ ” (People v. Sullivan (2007) 151 Cal.App.4th 524, 542-543, quoting People v. Prevost (1998) 60 Cal.App.4th 1382, 1394.) The doctrine aims not only at the vice of inadequate notice, but also of excessive delegation to non-legislative actors—prosecutors, judges, and juries—to decide whether conduct is unlawful. (People v. Heitzman (1994) 9 Cal.4th 189, 199, quoting Kolender v. Lawson (1983) 461 U.S. 352, 357 [“ ‘[A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement’ ”].)
Obviously, any claim of unconstitutional vagueness must begin with the language of the statute. Penal Code section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Italics added.) We see nothing in the ordinary meaning of these words that would lead a would-be thief to suppose that he is not guilty of robbery if he initially takes the property into his hand without violence, but then uses force to retain it. Such conduct could easily be understood by persons of ordinary intelligence to be encompassed by the words, “taking . . . accomplished by . . . force or fear.” In ordinary usage it might readily be understood that a taking, though commencing without violence, is not “accomplished” until the property has been spirited away, such that any violence used prior to that point would make the crime a robbery. Certainly nothing in the language of the statute dictates a contrary result.
To be sure, the word “taking” is sometimes a term of art in the law, and this apparently led to a rule at common law rule under which the force or fear had to precede or accompany the “manucaption,” or taking of the property into the defendant’s hands. (See Thomas v. Alabama (1890) 9 So. 81, 81-82 [91 Ala. 34], and cases there cited.) In these jurisdictions, the use of force or fear only to prevent the owner’s recovery of the property, or to make good an escape, is not robbery. (Ibid.; see 67 Am.Jur.2d (2003) Robbery, § 27, pp. 70-71.) But defendant fails to persuade us that this is a rule of constitutional necessity, or one suggested by the language of this state’s statute, which speaks not of manucaption, but of a “taking . . . accomplished by . . . force or fear.” (§ 211.)
It may be that defendant’s argument, which itself we find somewhat vague, hinges on the statute’s reference to a “taking of personal property . . . from [the victim’s] person or immediate presence . . . .” (§ 211.) The operative premise may be that when property is surreptitiously carried out of a store without violence, it cannot be understood in normal terms to have been taken from anyone’s “person or immediate presence,” so that in any subsequent use of force, the elements seemingly contemplated by the statute do not coincide. But again, we would expect a layperson to say that if a man leans his bicycle against a signpost while entering a store, and a thief mounts it and begins to pedal away, and the owner emerges from the store to block the thief’s escape, the thief’s pulling out a pistol to overcome the owner’s resistance constitutes a taking from the latter’s person or immediate presence accomplished by force or fear. Again, we see nothing in the statute that would suggest otherwise.
In sum, the uncertainties of which defendant complains appear to derive not from the statutory language, but from the divergence between the statute as interpreted in this state and what defendant views, apparently correctly, as the common law and perhaps majority view elsewhere. This argument appears to turn the vagueness argument on its head by relying on a common-law rule not to save a statute by supplying a limiting interpretation (see, e.g., People v. Smith (1953) 117 Cal.App.2d 698, 699-700), but to impute an uncertainty not arising from the ordinary meaning of the terms of the statute. No authority is cited for such an approach, which appears difficult to reconcile with the underlying objective of fair warning. It presupposes not a person of ordinary intelligence contemplating the actual words of the statute, but one who has read a criminal law hornbook and has thus formed expectations that will be unpleasantly crushed if he relies on them in using force to make good a larceny in California.
Moreover, in considering a vagueness challenge we must consider not only the language and legislative history of the statute but also “ ‘California decisions construing [it].’ ” (Walker v. Superior Court (1988) 47 Cal.3d 112, 143, quoting Pryor v. Municipal Court (1979) 25 Cal.3d 238, 246.) Here, as defendant acknowledges, the statute has long been construed to permit conviction on facts such as those at hand. A decision seemingly on all fours is People v. Estes (1983) 147 Cal.App.3d 23 (Estes), where a security guard attempted to detain the defendant outside a store on suspicion of shoplifting. The defendant refused to accompany him, pulled out a knife, swung it, and threatened to kill him. (Id. at p. 26.) Upon the defendant’s appeal from a conviction for robbery, the court held that (1) the stolen property had been in the guard’s constructive possession, and (2) “[b]y preventing the guard from regaining control over the merchandise,” the defendant had “taken the property as if the guard had actual possession of the goods in the first instance.” (Id. at p. 27.) The court also rejected the defendant’s contention that, because “his assaultive behavior was not contemporaneous with the taking of the merchandise . . . he was, at most, guilty of petty theft and a subsequent assault.” (Id. at p. 28.) “The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape. The crime is not divisible into a series of separate acts. Defendant’s guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.] Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction.” (Ibid.) The court noted that a robbery conviction was affirmed in People v. Kent (1981) 125 Cal.App.3d 207, based on evidence that the defendant took cash from the victim’s purse while alone in her kitchen, then struck her and brandished a knife when she discovered the theft and confronted him.
These cases were recently followed in Miller v. Superior Court (2004) 115 Cal.App.4th 216 (Miller), where the victim’s wallet disappeared when he left it unattended in a restroom stall. He promptly returned and correctly surmised that it had been taken by defendant, who was still in another stall. After the victim and a friend waited outside the stall for some time, the defendant emerged and attempted to shove his way past them. He moved to dismiss the ensuing robbery charge on the ground that the evidence did not describe a taking from the victim’s person or immediate presence. The superior court denied the motion, and defendant petitioned unsuccessfully for prohibition. A majority of the reviewing court concluded that “although the immediate presence and force or fear elements of robbery originally had to be satisfied at the time of . . . gaining possession . . ., the law has long since allowed these elements to be supplied after the defendant has initially gained possession of the victim’s property.” (Id. at p. 224.)
A dissenting justice accused the court of revising the robbery statute to embrace “the new offense of the taking or retaining personal property” by force or fear. (Miller, supra, 115 Cal.App.4th at p. 225 (dis. opn. of McDonald, J.).) He opined that the broader view of robbery adopted in Estes, supra, 147 Cal.App.3d 23, was inconsistent not only with traditional views but with the language in two later decisions by the California Supreme Court. In People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper), the court had reaffirmed the traditional conception that “[t]he taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot.” However, the Cooper court seemed to entirely approve of the Estes line of cases, albeit in dictum, and not without leaving itself enough leeway to revisit the question in a future decision. Thus the majority observed in a footnote that its reasoning, which dealt with the duration of robbery for purposes of aiding and abetting, was “consistent with a long line of Court of Appeal cases, left undisturbed by this court, holding that mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.] In order to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. [Citation.]” (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8, italics added.)
The dissenting justice in Miller also cited People v. Hayes (1990) 52 Cal.3d 577, 626-627, for its discussion of the “immediate presence” element of robbery. The Hayes court quoted earlier language that “immediate presence ‘ “must mean an area within which the victim could reasonably be expected to exercise some physical control over [her] property.” ’ ” (Id. at p. 627, quoting People v. Bauer (1966) 241 Cal.App.2d 632, 642; Spencer v. United States (D.C.Cir. 1940) 116 F.2d 801, 802.) The court cited a hypothetical example in which a taking is accomplished by force or fear but not from the victim’s immediate presence, i.e., where the defendant forces the victim to reveal the combination of a distant safe, where an accomplice waits to execute the taking. (People v. Hayes, supra, 52 Cal.3d at p. 627.) But of course in that case the property was in the victim’s immediate possession at no time during the execution of the robbery.
In any event, assuming defendant’s critique of the precedents warrants solicitude, it seems to us to go not to the constitutionality of section 211 but to the soundness of the interpretation placed upon it by our fellow Courts of Appeal. Again, by its terms the statute penalizes any taking from the victim’s immediate presence that is “accomplished” by force or fear. On its face this language readily supports a view that the crime is not “accomplished” until possession has been won, and that this is “accomplished by force or fear” if either of those factors is employed to secure the thief’s possession as against the owner. It thus seems to us that no one reading the statute could be surprised to learn that it would extend to a forcible repulsion of an attempt by the rightful owner, during the “asportation” phase of the crime, to recover possession of his property. The surprise could come, if at all, only from reading the casebooks, and particularly those of other jurisdictions. This simply is not the stuff of a vagueness challenge. We therefore reject that challenge.
Defendant also suggests that the robbery conviction is infirm because of the supposed anomaly that, as the jury was instructed, he could be found guilty of robbery only if the victims of his assaultive conduct were store employees; had they been bystanders, he notes, he could not have committed robbery, but at most an assault. (See CALCRIM 1600; see People v. Frazer (2003) 106 Cal.App.4th 1104, 1115-1117.) Although this argument might suggest some sort of equal protection challenge, defendant attempts to bring it under the rubric of vagueness, stating that the disparate treatment of thieves who use force or fear against employees, vis à vis those who apply it only to non-employees, “creates an additional layer of vagueness, because there is no robbery if it is a citizen who runs after the perpetrator of a theft. Even if there is an assault or threat to that citizen, the defendant is only guilty of a misdemeanor. However, if unbeknownst to the perpetrator, he is chased by a store employee, the defendant can be convicted of a robbery for the same acts. In addition, the two defendants who committed the same acts are treated differently based upon facts of which they may not even be aware . . . .” We fail to see how this consideration implicates the concerns addressed by the vagueness doctrine. A would-be thief knows that he is exposing himself to punishment for robbery if he uses force or fear to accomplish a taking from the owner’s person or immediate presence. If the person against whom he exercises force or fear turns out not to be the owner, or one imbued by law with the owner’s status, then the defendant can count his lucky stars that he is not guilty of robbery. The fact that he may not know all the circumstances that will ultimately determine the extent of his criminal culpability does not render vague the statute under which he is prosecuted.
Defendant has identified no error in his robbery convictions.
VI. Cruel and Unusual Punishment
The consolidated information sought a 10-year enhancement under Penal Code section 12022.53, subdivision (b), for personal use of a firearm in each of the four counts of second-degree robbery. The probation officer recommended that a single such enhancement be imposed in connection with the first robbery count and that the remaining enhancements, like the counts to which they attached, be served concurrently. Prior to sentencing the defense moved to strike the firearm enhancements, contending that their imposition under the circumstances would constitute cruel and unusual punishment. At the hearing, defense counsel insisted that the court had the authority to find the enhancement cruel and unusual and on that basis to strike it. The court stated that in view of defendant’s showing in mitigation of punishment, it was “exercising [its] discretion to the greatest extent possible” in favor of leniency. It went on, however, to state that its own research had led it to the conclusion that it had no discretionary power under Penal Code section 1385 to strike the firearms enhancement in furtherance of justice. (See People v. Thomas (1992) 4 Cal.4th 206, 213-214; People v. Tanner (1979) 24 Cal.3d 514, 521.) Alluding to this court’s decision in People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214, the court said, “It is in only the most extreme and unusual circumstances that the Court could find that the application of the statutory punishment to the defendant constitutes a violation of prohibition against cruel and unusual punishment. And this is particularly so in the context of a statute enacted by the People of the State of California through their legislature which relates specifically to the most serious and violent offenses, and which clearly and absolutely, both in the legislative history and in the wording of the statutes themselves, reflects the people’s sentiment that the use of firearms in the commission of serious felony offenses will not be tolerated because of the incredible threat to public safety and harm that it poses. [¶] For those reasons, based on the facts in this case, I cannot find that the imposition of that amounts to cruel and unusual punishment within the constitutional context that you have suggested.” The court proceeded to impose the 10-year enhancement as part of an aggregate sentence of 15 years 8 months, plus eight months in an unrelated case, for a total sentence of 16 years 4 months.
On appeal defendant presses his contention that the imposition of the 10-year firearm enhancement in connection with the Food Maxx incident violates his state and federal constitutional rights against cruel and unusual punishment. Courts have uniformly rejected such a contention, concluding that the imposition of a mandatory firearm enhancement under section 12022.53 does not constitute cruel or unusual punishment. (See People v. Felix (2003) 108 Cal.App.4th 994, 999-1002; People v. Taylor (2001) 93 Cal.App.4th 318, 323-324; People v. Villegas (2001) 92 Cal.App.4th 1217, 1230-1231; People v. Zepeda, supra, 87 Cal.App.4th 1183, 1212-1213; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19; People v. Martinez (1999) 76 Cal.App.4th 489, 493-498.) We see no reason to reach a different conclusion here.
A punishment is excessive under the Eighth Amendment if it involves the “unnecessary and wanton infliction of pain” or it is “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article I, section 17 of the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) “Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. “The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.” (Id. at pp. 423-424.)
The Supreme Court has identified three factors by which to test a claim that a sentence is disproportionate to the crime involved: (1) the nature of the offense and the offender, paying particular attention to the degree of danger that both present to society; (2) the penalty imposed relative to penalties imposed for more serious offenses in the same jurisdiction; and (3) the penalty imposed relative to penalties imposed for similar offenses in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427; see People v. Martinez (1999) 71 Cal.App.4th 1502, 1509-1510.)
Defendant makes no attempt to show that the second or third factors favored a finding here of constitutionally impermissible disproportionality. His entire argument hinges on the first factor, or rather, the first two sub-factors: the nature of the offender, and the nature of the offense. On the first issue he has a colorable point. The inquiry into the nature of the offender is to focus on the defendant’s “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).) The trial court apparently found some or all of these factors sufficiently present to require leniency in its sentencing choices. It cited defendant’s amenability to reform as reflected in a previous, successfully concluded probation; the generally nonviolent personal characteristics reflected in reports from family and friends; the reliance of defendant’s family upon him; and the fact that defendant apparently committed the present crimes under the impetus of a drug addiction. However the court did not find this factor sufficient to establish the “extreme and unusual circumstances” that would permit a finding of unconstitutionally severe punishment. We are compelled to agree, because even accepting that the nature of the offender might favor such a conclusion, it cannot be said that the nature of the offense does.
In considering the nature of the offense for purposes of determining whether punishment is constitutionally excessive, courts are to evaluate “the totality of the circumstances surrounding the commission of the offense . . ., including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479.) Here the initial theft portion of the offense was, as defendant asserts, comparatively trivial—though it appears likely that it was intended to supply raw materials for the manufacture of methamphetamine. But be that as it may, defendant’s conduct after leaving the store was the opposite of trivial. There was evidence suggesting that he not only produced a handgun, but pointed it at his pursuers and tried to fire it. The victims may have been spared death or serious injury—and defendant may have been spared far greater punishment—thanks only to the fortuity of his apparent inability to operate the gun. Had he succeeded in discharging the gun, without more, he would have been exposed to an enhancement at least twice the length of the one he got. (Pen. Code, § 12022.53, subd. (c).) Had he shot anyone, he would have received an additional consecutive term of 25 years to life. (Id., subd. (d).) After initially eluding pursuit defendant was seen apparently trying to restore the weapon to operability. This suggested the continuing presence of a willingness to inflict severe injury, if not death. The threat of deadly force was implicit throughout these actions. Indeed, if defendant was as unskilled in firearms as this evidence suggests, the hazardousness of his conduct must be deemed further augmented by the risk of an accidental discharge. Compounding the risk further was his ultimately discarding this dangerous instrumentality in an unknown location where, presumably, it might eventually be found by anyone.
Defendant emphasizes by repetition that the weapon was displayed only briefly. But this hardly negates the relatively serious characteristics of the offense, which arise not from defendant’s showing the gun but from his pointing it at pursuers with the apparent willingness to use it, and at any rate with an apparent ineptitude that suggests a grave risk of lethal mishap. A firearm need not be displayed at all to inflict life-shattering, indeed life-ending harm.
Since Dillon, supra, 34 Cal.3d 441, “Findings of disproportionality have occurred with exquisite rarity in the case law. Because it is the Legislature which determines the appropriate penalty for criminal offenses, defendant must overcome a ‘considerable burden’ in convincing us his sentence was disproportionate to his level of culpability. [Citation.]” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) Nothing in this record permitted the trial court to say, or permits us to say, that this is one of those “exquisite[ly] rar[e]” cases. The 10-year gun-use enhancement does not appear to have rendered defendant’s sentence so disproportionate to his conduct as to shock the conscience or offend fundamental notions of human dignity. (People v. Zepeda, supra, 87 Cal.App.4th at pp. 1215-1216.) We therefore reject defendant’s constitutional challenge to the sentence.
VII. Marsden Motion
A. Background
Defendant contends that the trial court erred by failing to grant his request under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to relieve his appointed counsel and permit him to obtain substitute counsel. To properly assess this contention requires closer scrutiny of the proceedings prior to trial.
The Lunardi’s incident occurred on May 3, 2005. The complaint based on that incident was filed on May 11, 2005. The preliminary hearing took place on August 9, 2005. An information was filed on August 19, 2005. Defendant was represented at the preliminary hearing by Jeff Parrish, who was privately retained. On August 22, 2005, Parrish “appear[ed] specially” on defendant’s behalf, stating, “I have not been retained through trial in this matter and wish to be relieved, however we have received the [i]nformation in both cases and we’re willing to waive time and enter a plea . . . .” Defendant proceeded to enter a plea of not guilty and to waive his right to a trial within 60 days. The court referred the matter to the Public Defender and set a hearing date of August 31 for “identification of [c]ounsel” and “transferring discovery” between Parrish and defendant’s new attorney. The court also set a trial date of October 11, 2005. On August 31, 2005, the court appointed the public defender to represent defendant. On October 11, 2005, the court set the matter for further hearing on November 7th.
The reference to “both cases” apparently encompassed a separate prosecution for possession of a controlled substance. That matter is not at issue on this appeal.
Meanwhile, on September 9, 2005, the Food Maxx incident occurred. The complaint was filed on September 13, and amended September 19, 2005. The preliminary hearing took place on October 26, 2005. Defendant was represented at the preliminary hearing by Patricia Fox, who was privately retained. An information was filed on November 4, 2005. On November 7 another attorney, Steve Avila, made a “special appearance for Patricia Fox,” stating that she had “indicated to me today that she will not be retained for Superior Court. She was only through the preliminary lawyering [sic].” Avila pointed out that defendant was already represented by Juan Lopez of the public defender’s office in other matters. An information, presumably on the Food Maxx charges, was handed to defendant. He entered a not guilty plea to the charges in that document. Counsel declined to waive time. The court appointed the public defender to represent defendant and set the matter for further hearing that afternoon.
That afternoon the court called the Food Maxx matter which had been put over from that morning. The court observed that it had “assigned the case to this department because I had two other matters of yours that I had assigned to this department as well.” It also pointed out that defendant had waived time in the other matters, adding, “Mr. Lopez indicates to me that you are willing to give up your right to a speedy trial. If that is done I will reset all three of these matters to January the 9th, 2006 for trial.” Defendant expressed a desire to do so, and waived his right to be tried in the Food Maxx case within 60 days of arraignment. The court then reset all three matters to January 9, 2006. The matter was subsequently reset to January 10, then February 15, then March 13, and finally March 20, 2006. On March 20, 2006, before the master calendar judge, defendant withdrew his time waiver. The court assigned the matter “forthwith” to Judge Condron in Department 20.
When the matter was called by Judge Condron, defense counsel indicated that defendant “would like to address the Court regarding a motion he has.” The court inquired of defendant, who said, “I would like to change my attorney.” This was followed by an exchange concerning the availability of another attorney to represent defendant. The court then cleared the courtroom to conduct a closed hearing on defendant’s Marsden request.
“THE COURT: . . . . I will hear your request, sir. You understand that you are here for trial today? [¶] THE DEFENDANT: Yes. [¶] THE COURT: Do you have another attorney ready to represent you in this trial? [¶] THE DEFENDANT: I do not have an attorney ready today, but my parents here have spoken to another attorney and that person is not here yet. [¶] THE COURT: Is he supposed to be here today? [¶] THE DEFENDANT: When they spoke to that attorney, the attorney said you must first relieve your attorney and then he will take over. [¶] THE COURT: Who is the attorney you are seeking to have represent you in this case? [¶] THE DEFENDANT: Bob Lyons. [¶] THE COURT: Mr. Lopez, were you trying— [¶] MR. LOPEZ: Just briefly. I thought he—was he was referring to another attorney who I spoke to, Hector Ramon. Mr. Ramon indicated he was not going to take the case. I’m not aware of Bob Lyons so I didn’t have any information about that. I did ask the family. They didn’t indicate there was another attorney. [¶] THE COURT: Has Mr. Lyons actually been retained, that is, paid to represent you in this matter? [¶] THE DEFENDANT: We have not hired him. We have not paid him yet. He was supposed to come and take—read the police report first from my present attorney. [¶] THE COURT: At this time, I am going to clear the courtroom. . . .”
At the commencement of the hearing the court asked defendant to enumerate, as specifically as possible, any acts or omissions by counsel with which he disagreed. Defendant first complained that counsel had “brought another case and mixed it up with my own case. That case has to do with my father’s case, and I have told him that this case has nothing to do with my case.” The court asked, “Do you mean that cases have been joined or consolidated and you believe that should not have happened?” Defendant replied, “It has nothing to do with my own cases that were consolidated, no.” The court then described the three cases before it, stating, “Each of these cases is at this point separate. They are all separate from each other. Is there another case that you are suggesting has been joined in with one of these?” Defendant replied, “The cases that he is trying to bring and mix them up with my own have nothing to do with my own record. These cases have to do with my father’s case.” The court then asked, “What case are you referring to, sir?” Defendant replied, “He keeps bringing a case that has to do with my father and wants me to look at them, and I keep telling him that this case has nothing to do with mine.”
The court asked defendant if there was “anything else that he has done that you believe he should not have done?” Defendant replied, “This is the only issue with him but I have a feeling that he doesn’t think that I am innocent and he wants me—he wants to convince me to plead today. The way he talks to me, I sense that he doesn’t really believe that I am innocent in these cases.” The court asked what counsel had done to encourage defendant to plead guilty. Defendant replied, “The way he talks to me about it or he brings a video from the store and tells me that the way he has observed it, it leads to the fact that—the suggestion that I am guilty. And he suggests that because I have a charge regarding a drug matter, the fact that I went to the store and I went to the medicine section, medicine aisle, is not going to look good on my case.”
The court asked if there was “anything that you believe Mr. Lopez should have done in order to represent you that he has failed or refused to do?” Defendant said he had “asked for a speedy trial. For the past seven months, I have been in jail. Five months ago, I asked for a speedy trial but I believe he has failed to push this to a quick resolution.”
When defendant affirmed that this exhausted his sources of dissatisfaction with counsel, the court read the points back to him: (1) Counsel was “confusing an unrelated case, somehow involving your dad with your cases”; (2) counsel appeared to believe defendant was not innocent and was encouraging him to plead guilty rather than go to trial; (3) counsel told him his drug charges would “not look good because you went to the medicine section of the store in one of your cases”; and (4) counsel “failed to protect your right to speedy trial because it’s been five months and you still haven’t gone to trial.” Defendant again confirmed that these were all the things that made him want to fire his attorney.
The court then asked counsel to respond, first by summarizing his relevant training and experience, and then by listing his activities in representing defendant. These included some settlement discussions with the prosecutor—but on that subject, said counsel, defendant had “indicated that he is innocent of the charges, God will determine whether he is guilty or innocent and he’s not going to enter a plea.” Counsel also said that while fairly concrete terms had been discussed with respect to the Lunardi’s case, the prosecution had withdrawn those terms as a result of the Food Maxx charges.
The court then asked counsel about the asserted mixing of defendant’s case with one involving his father. Counsel explained that defendant’s father was involved in the Lunardi’s incident, “and has since pled.” Counsel allowed that the incident was indeed “going to be brought up” in the present proceedings because “That’s one of the cases before Your Honor.” Counsel continued, “[T]he fact that his father has a conviction in that case, we expect to call him as a witness, and I have told him—I have told him they are going to bring up the fact that the dad has a conviction if he testifies and those are facts I believe that the prosecutor is going to use against my client as part of their case in chief.” Counsel confirmed that this came up as part of his “efforts to advise your client fully of the type of evidence that can be used against him at trial.”
The court then asked counsel to address defendant’s concern that he seemed not to believe in defendant’s innocence and had tried to convince defendant to change his plea. Counsel replied that he had warned defendant “from the very beginning I’m not going to tell him what he wants to hear. I’m going to tell him what he needs to hear based on the law, based on the facts of the case, and that's the way I work. I’m not going to sugar coat everything.” Counsel said he had told defendant that his version of facts, which counsel laid out for the court, diverged from video recordings that might be allowed into evidence. Defendant had responded by accusing counsel of not believing him, to which counsel replied, “[I]t’s not my job to believe or not believe. My job is to present the case . . . . It makes the case difficult. . . . It’s not a lack of belief. But I’m being realistic and I’m being honest and that’s my job, to present to him what I think the district attorney is going to do.”
Counsel also described the predictions he conveyed to defendant concerning the likely consequences if he testified on his own behalf. Counsel ended his comments on this point by saying, “I don't believe I have ever said I don’t believe in your case. That’s bottom line. I have done everything to assure in my mind that he understands his position, that he understands the case before Your Honor, and also understands what the ramifications of those decisions are. But I wanted to make sure that he understands and makes an informed decision.”
The court then turned to defendant’s concerns about counsel’s fear that the drug charges would look bad in light of defendant’s presence in the drug section of the store. Counsel said, “I’m not sure where that necessarily comes from other than there is evidence of him being under the influence of some narcotics. But in regards to the particular case that's before Your Honor, he’s DEJ eligible. We never talked necessarily about those facts coming in. We never said it wasn't going to come in. I believe the district attorney would like to do that, but I don't think I have ever gone there.” Counsel alluded to some highly damaging evidence that the prosecution might seek to introduce, “But that's all I have done. I don’t think I have said that he shouldn't do anything. It’s his impression.”
The court then turned to the question of defendant’s right to a speedy trial and his supposed violation of an undertaking to be ready to try the case in a month. Counsel explained that when he received the file from Ms. Fox no investigation had been done in preparation for trial. He had imparted this fact to defendant, who agreed that “this is such a serious case[,] you need to do something.” Defendant then consented to proceed on a time-waived basis until March 6, when he asked to withdraw his waiver “because he was tired of being in custody.” Counsel “ask[ed] for it to be done,” which we surmise means he sought the approval of his supervisor, Mr. Gleason, who would apparently perform the actual withdrawal of the waiver. Apparently through inadvertence, however, the waiver was not withdrawn on March 6. Counsel told defendant of this, adding that “we have got more discovery, we have more information that we need”—which we take to mean, that there was more trial preparation to be done before the defense would be ready. Defendant apparently acceded to a withdrawal of the waiver on the following Monday, March 13. Counsel asked his supervisor to accomplish this. After the hearing, however, the supervisor reported that he had not “pull[ed] the time waiver” because he had spoken to defendant’s parents, who told him they were still seeking to engage private counsel. Gleason had suggested that a withdrawal of the waiver would be unfair to an attorney newly assuming control the case, because it would force him to “start a trial sooner rather than later.” Counsel had later explained this to defendant, who was upset by it. Counsel explained to him that even if the waiver had been withdrawn on March 13, it would have allowed the prosecution 60 days to bring the case to trial. Defendant had been laboring under the mistaken supposition that if the waiver were pulled, a trial would follow immediately.
The court asked defendant if he had any reply to counsel’s remarks. Apparently referring to his original understanding with Mr. Lopez, defendant said, “I asked him for a quick court date, a resolution for one month. And the last time I was in court was in November, November 7. And then it was postponed to January 9 and I was not brought to the court. Then they postponed to February 14 again. Then they didn’t bring me to court neither. And on 13th of March, again it was a court date then, they didn’t bring me here either. If I was brought to court sooner, I would have had an opportunity to resolve this or ask the Court to get another attorney.”
Defendant also took issue with counsel’s interpretation of the video evidence, alluding to the apparent absence of footage of him taking anything, discrepancies between the video and witnesses’ accounts, and testimony by the witnesses—presumably referring to the Lunardi’s incident—that he “did not take anything from the store.” Defendant also referred to counsel’s failure to investigate “the beating that I received from the police,” as well as the “ethnic slurs” to which police subjected him.
Counsel replied that it was true defendant did not take anything from Lunardi’s, “but his father did.” As for Food Maxx, “[t]wo people testified that they watched him on video taking merchandise. They have not said he didn’t take anything. I have never told him that I didn't see him take anything. It clearly shows on the video that he takes things off the shelf.” With respect to racial slurs, counsel observed that evidence of police discrimination would not necessarily furnish a defense in view of the eyewitness testimony that was apparently untainted by any such animus. Counsel did not comment, however, on defendant’s claim that he had been beaten by police.
The court found that most of the factual discrepancies between defendant’s statements and counsel’s were probably attributable to confusion or miscommunication rather than “any dishonesty before this court,” but that to the extent any conflicts were not so explained it credited counsel’s account over defendant’s. It further found that with respect to all of defendant’s complaints, “counsel has been acting in good faith to fully advise and counsel his client on the facts and circumstances that will be presented at any trial of this matter, and how those may or may not affect his client’s chances of prevailing in this case at trial. [¶] To the extent that there has been any breakdown between the attorney-client relationship, and I don’t necessarily find that there has been, but it would clearly result from a disagreement in trial strategy and perhaps a dissatisfaction on the part of Mr. Shaisi with respect to certain advice that he’s been given regarding how certain factors may affect his trial.” The court told defendant that he was being represented by “one of the more experienced public defenders in this county,” who “appears to have done a most thorough job in preparing this case for trial and in making recommendations and advising you.” The court found that insofar as defendant was asking to discharge Mr. Lopez in order to hire private counsel, the request was untimely. With respect to defendant’s speedy trial rights, the court allowed that his time waiver “should have been withdrawn on March 6,” but that the failure to withdraw it was due to a miscommunication within the public defender’s office and that the failure to withdraw it had not “affected your right in any way because you are here for trial today. And even if your time waiver had been pulled on March 6, you would still be here for trial today.” The court denied defendant’s Marsden motion.
B. Principles
A criminal defendant is entitled under the Sixth Amendment to the effective assistance of counsel. (Cf. People v. Smith (2003) 30 Cal.4th 581, 606.) When a defendant is dissatisfied with the performance of an attorney hired by him, his remedy is to discharge the attorney, which he must be permitted to do unless it will result in significant prejudice to him or an unjustified interference with the judicial process. (People v. Ortiz (1990) 51 Cal.3d 975, 982-983; People v. Lara (2001) 86 Cal.App.4th 139, 152-153.) But a defendant represented by appointed counsel is not at liberty to discharge his attorney. (See People v. Lara, supra, at p. 150.) Accordingly, to make good the constitutional guarantee, a court must appoint substitute counsel if an appointed attorney is providing ineffective assistance (Marsden, supra, 2 Cal.3d at p. 123) or if the attorney-client relationship has become burdened by such irreconcilable conflicts that inadequate representation is likely to result (People v. Fierro (1991) 1 Cal.4th 173, 204; see People v. Crandell (1988) 46 Cal.3d 833, 854, criticized on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365).
“[W]hen the defendant in some manner moves to discharge his current counsel” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted), the trial court must, as this court has stated, “afford the defendant an opportunity to express the specific reasons why he believes he is not being adequately represented by his current counsel . . . .” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400.) A trial court errs under Marsden by not affording a criminal defendant an adequate opportunity to air all his reasons for dissatisfaction with his appointed attorney. (People v. Lewis (1978) 20 Cal.3d 496, 498-499; People v. Hidalgo (1978) 22 Cal.3d 826, 827; People v. Ivans (1992) 2 Cal.App.4th 1654, 1666 (Ivans).) Provided the court conducts an adequate inquiry into the defendant’s dissatisfaction, it need not grant the request unless the defendant establishes substantial impairment of his right to counsel. (Marsden, supra, 2 Cal.3d at p. 123.) The question whether to grant the request is vested in the trial court’s discretion, and will be reversed on appeal only if that discretion is shown to have been abused. (People v. Barnett (1998) 17 Cal.4th 1044, 1085 (Barnett).) The erroneous denial of a Marsden motion requires reversal unless the error was harmless beyond a reasonable doubt. (See Marsden, supra, 2 Cal.3d at p. 126; People v. Lewis, supra, 20 Cal.3d at p. 499; Ivans, supra, 2 Cal.App.4th at pp. 1666-1667; People v. Leonard (2000) 78 Cal.App.4th 776, 787, contra, Washington (1994) 27 Cal.App.4th 940, 944.)
A claim of Marsden error may thus raise four distinct questions: (1) Did the defendant adequately manifest his dissatisfaction with counsel so as to trigger the court’s duty of inquiry under Marsden? (2) Did the court conduct an adequate inquiry? (3) Did the complaints voiced by the defendant establish such an impairment of the right to counsel that the motion should have been granted? (4) If the court erred, was the error harmless beyond a reasonable doubt?
C. Application
Defendant enumerates five complaints supposedly presented to the trial court at the Marsden hearing: “(1) the failure to address possible consolidation of the cases; (2) irreconcilable difference with counsel about the circumstances of the case and whether Mr. Shaisi should even proceed to trial; (3) failure to file a motion about the admission of the drug charge at trial; (4) failure to move to exclude Mr. Shaisi’s statement as involuntary; and (5) failure to timely address the issue of a speedy trial.”
Three of these items are inaccurate descriptions, and two of those can only be described as tendentious mischaracterizations, of the proceedings below. There was no mention at the Marsden hearing of the consolidation of cases. Rather defendant expressed concern over counsel’s “mix[ing] . . . up” his case with his father’s case. This pointed to no deficiency in representation, since it apparently rested on a misapprehension by defendant of the substantive law underlying the Lunardi’s charges. He apparently viewed that matter as “my father’s case,” and could not understand why he was implicated in it since, as he later emphasized, he “did not take anything from the store.” Defendant may have been referring, in addition or instead, to an earlier conviction of his father’s, which—as counsel had explained to him—would probably be introduced to impeach his father if the latter were to testify.
To be sure, on appeal defendant charges counsel with inadequate representation in failing to more effectively oppose the prosecution’s motion to consolidate. But that issue was not brought to the court’s attention in connection with any Marsden request. Defendant’s remedy, if any, was to raise ineffective assistance as a separate point on appeal or, if the claim depended on extrinsic evidence, by extraordinary writ. The motion to consolidate, and counsel’s response to it, can have no bearing on any claimed Marsden error.
Defendant’s concerns about counsel’s supposed lack of faith in his defense were fully aired at the Marsden hearing, and the trial court’s handling of them is unimpeachable. The court was more than entitled to conclude that counsel’s only real failing in that regard stemmed from his inability to penetrate defendant’s extremely unrealistic expectations and suppositions about how the process worked and how the evidence was likely to be seen by 12 strangers. If counsel’s fault ran any deeper than that, the remedy does not lie in challenging the court’s ruling on the Marsden motion, but in a distinct claim of ineffective assistance of counsel. Given defendant’s views of the case as expressed at the hearing and reported by counsel, it is doubtful that any competent criminal defense attorney could have avoided engendering the same concerns.
Nor was there any allusion in the Marsden hearing to a hypothetical motion to exclude the drug charges from a trial of the more serious offenses. Defendant’s complaint, as stated by him, was that counsel had “suggest[ed] that because I have a charge regarding a drug matter, the fact that I went to the store and I went to the medicine section, medicine aisle, is not going to look good on my case.” The court was entitled to infer, as do we, that what counsel actually told defendant—quite accurately—was that if evidence of his drug use were admitted, then the fact that the thefts apparently involved pharmaceuticals might look bad. Counsel told the court that he had never suggested such evidence would be admitted, only advised defendant of the possible effects if it were. In the event, counsel successfully opposed prosecution efforts to bring defendant’s drug use into the case, as well as to introduce evidence of the possible role of the purloined pharmaceuticals in the illicit manufacture of methamphetamine.
As for counsel’s “failure to timely address the issue of a speedy trial,” we see no inadequacy in the court’s analysis, which defendant does not discuss on appeal. The court found that the withdrawal of defendant’s waiver had been improperly delayed for two weeks, but that this had no effect on defendant because the case was going to trial forthwith, comfortably within the 60 days that would have begun to run upon the withdrawal. On appeal defendant suggests that but for counsel’s waivers of his appearances at earlier calendaring hearings, he could have withdrawn his waiver sooner and secured that much speedier a trial. But there is no evidence that defendant communicated to counsel any desire to withdraw his time waiver before March 6. If he had, the pertinent complaint would be not that counsel did not secure defendant’s personal presence at calendaring hearings but that he himself failed to execute his client’s instructions. Since there is no evidence of such instructions, and particularly since defendant’s comments on the subject may be readily understood as Monday-morning quarterbacking rather than a description of actual events, the trial court did not err in failing to find in these comments grounds to relieve counsel. Counsel was under no duty to impute a withdrawal to his client, particularly in view of ongoing indications that defendant’s family was attempting to engage private counsel—who, as counsel correctly observed, would undoubtedly be prejudiced by any early setting of a trial date.
Defendant alludes to a host of additional failures by counsel, including failing to file any motions, failing to establish that he had received or solicited any specific settlement offer or communicated its terms to defendant, and failing to demonstrate that he warned defendant of the maximum sentence to which trial would expose him. None of these grievances were raised at the Marsden hearing and none of them can operate to impeach the court’s ruling on that motion. The question before the court at that hearing was whether the grievances voiced by defendant indicated, after due inquiry, such a lack or impairment of effectiveness as to constitute a denial of defendant’s Sixth Amendment right to counsel. Complaints not conveyed to the trial court can have no bearing on this question. Other criticisms of counsel, unless couched in terms of a direct claim of ineffective assistance of counsel, can simply have no bearing on appeal.
This leaves us with one arguable inadequacy in what was otherwise a model Marsden hearing: the court’s failure to inquire further into defendant’s claim that he was beaten by police. On appeal defendant assumes that the alleged beating might have rendered defendant’s statements to police involuntary so that their admission into evidence would constitute a denial of due process. (Blackburn v. State of Alabama (1960) 361 U.S. 199, 205, 210; see People v. Badgett (1995) 10 Cal.4th 330, 347-348.) There is no evidence, however, that the alleged beating had any connection at all with the statements that were admitted into evidence. The paradigmatic coerced statement is a confession or facially incriminating admission. No such statement was offered in evidence here. The statements placed in evidence possessed incriminating potential due not to their content but to their implausibility, which in turn supported an inference that defendant fabricated them in an attempt to exculpate himself. While it is conceivable that they were coerced in the sense that defendant was compelled by duress to relinquish his right to remain silent, the record contains no suggestion, let alone evidence, to that effect.
This brings us to the pivotal question, which is whether the court erred by failing to conduct such an inquiry as would either positively dispel the possibility that defendant might have been subjected to a coercive interrogation, or obtain an adequate explanation from counsel concerning his treatment of such a possibility. Our task would certainly have been eased had this possibility been more thoroughly dealt with, but on this record its omission cannot be held to rise to the level of error. Critically, as we have noted, nothing actually said by defendant suggested any connection between the alleged beating and his statements to police. For all the record shows, the occasions were entirely divorced from one another. While the record has to show that the court was attentive to the defendant’s grievances, the core requirement is simply that the court “listen[] to [the] reasons for requesting a change of attorneys.” (Marsden, supra, 2 Cal.3d 118, 123; People v. Silva (1988) 45 Cal.3d 604, 622.) The court here gave defendant every opportunity to explain his dissatisfaction, and so far as the record shows was genuinely attentive to what he said. A single failure to follow up on a nebulously described grievance to dispel the possibility that it furnished grounds for removal was not error.
We also note that while counsel did not separately allude to defendant’s claims of a beating, that was partly because defendant made those claims in the same breath with an assertion that officers used ethnic slurs and otherwise betrayed discriminatory animosity towards him. The very fact that defendant combined these two grievances suggests the possibility that the claimed beating had nothing to do with any interrogation but was simply an expression of the officers’ hostility towards persons of defendant’s cultural background. Counsel seems to have been responding to it in that way when he said that evidence of discrimination would not get much traction as a defense unless there was some basis to suppose that officers had been led by it to concoct a case against defendant. This, as counsel indicated, would be a difficult-to-impossible defense to sell given that the prosecution relied not on evidence gathered through police investigation but on the testimony of numerous seemingly independent eyewitnesses.
Thus, while the court should have clarified defendant’s claims on this point and, if necessary, secured counsel’s response to them, we do not believe its otherwise sterling treatment of defendant’s Marsden motion can be held to constitute error.
Disposition
The conviction of acting as an accessory is reversed. In all other respects the judgment is affirmed. The trial court shall modify the abstract of judgment accordingly, and forward a copy thereof to the Department of Corrections and Rehabilitation.
WE CONCUR: PREMO, J., ELIA, J.
Here the utilitarian question is whether the social value of the increased punishment resulting from dual convictions outweighs the cost of administering a rule that appears to be spinning off exceptions and qualifications faster than rabbits spin off bunnies—and whose application requires a careful examination of “the particular circumstances” in each case. (Malcolm M., supra, 147 Cal.App.4th at p. 169.) Since the question is almost entirely without practical consequence—punishment on the accessory charge will almost always be stayed, even if it is theoretically permitted—it seems impossible to justify devoting any further time or ink to its consideration.
We recognize of course that questions of this kind are entrusted in the first instance to the Legislature, and where it has expressed its will the courts are relieved of any obligation to weigh them. But where the Legislature has not spoken, as it has not here, these questions not only may but must be addressed by judges if our jurisprudence is to stand the test of time.