Opinion
A126248
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. OLLIETERRANCE LEE WRIGHT et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule
(Alameda County Super. Ct. Nos. 159809A & 159809B)
Following a jury trial, appellants Ollieterrance Lee Wright and Eddie Earl Davis were convicted of second degree robbery, false imprisonment, and related charges arising out of a series of armed robberies. On appeal, they contend the trial court committed instructional error, failed to impose the proper court security fee per offense, and neglected to award full credit for their period of presentence custody. Wright contends the court erred by failing to conduct a hearing in response to his request for substitution of counsel. He also seeks correction of a clerical error in the minutes and abstract of judgment. We agree that the security fee assessed by the trial court should be reduced. We also agree that the abstract of judgment must be amended to correct the clerical error Wright has identified and to award Wright additional presentence custody credit. In all other respects, the judgments against appellants are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Davis was involved in armed robberies on three different dates at four different locations in Oakland. Wright participated in all but the first robbery that Davis committed. The crime spree began with the theft of a vehicle that was used by appellants in the robberies that followed. We summarize the facts relating to the vehicle theft and subsequent robberies in chronological order below. All of the events occurred in 2008 unless otherwise noted.
Vehicle Theft — January 11
Yazmin Maldonado lived on 7th Street in West Oakland. At 8:30 a.m. on January 11, she started her car, a 2006 Nissan Altima. She returned to her house and left the vehicle running with the keys in the ignition. When she walked back outside, she saw an African American man driving away in her car. Maldonado was notified in early February that the vehicle had been found.
Railroad Stop Deli Robbery — January 11
At 10:40 a.m. on January 11, appellant Davis, a tall, thin African-American man, entered the Railroad Stop Deli in West Oakland. Davis asked Jung Hee Lee, the deli's owner, if she had any premade sandwiches. She said there were none but offered to make one. Davis said he did not have the time. Davis walked around the store, "look[ing] all around," and purchased two cans of soda on two separate occasions from Lee. Davis then told Lee he needed change for a dollar. After Lee opened the cash register, Davis pointed a gun at Lee, reached over the counter, and grabbed about $200 from the register. Davis walked out of the store and crossed the street to a silver or beige car. At trial, Lee identified Davis and was 100 percent certain he was the man who robbed her.
Del Navio Restaurant Robbery - January 20
Carol Balfe lived next door to Del Navio Restaurant in the Montclair District of Oakland. At 11:00 a.m. on January 20, she walked outside of her home and observed two young men in a late model silver Nissan Altima driving around the corner and parking near her driveway. She was concerned the passenger in the Nissan was her grandson, whom she described as 19 years old, tall, and African American. At some point she realized the passenger was not her grandson. She drove away but felt uneasy about the Nissan parked near her house so she turned around. She called 911 after returning to the area near her house. The men in the Nissan had driven around the corner and parked near Del Navio Restaurant. Balfe read the license number to the 911 dispatcher and reported that the suspect vehicle was a Nissan Altima. The two men were wearing hooded sweatshirts. According to Balfe, the passenger in the Nissan was very tall, about 6'3" or maybe a littler taller, while the driver was average height, estimated to be about 5'7" to 5'8". Balfe saw the two men leave the car and walk towards Del Navio restaurant.
Pedro and Marion Navio owned Del Navio Restaurant. At 10:30 or 10:45 a.m. on January 20, Mrs. Navio arrived at the restaurant. Customers were seated at two tables. Patricia Montgomery and her husband were seated at one table. Four men were dining at another table.
Mrs. Navio walked to the back office, where her husband gave her over $5,000 in cash along with receipts. She put them in her small backpack purse to take home. She walked out of the office and saw two young African American men at the hostess stand waiting to be seated. Mrs. Navio was concerned because their demeanor and dress were not typical of the customers that frequented their neighborhood restaurant. She walked back to the office and told her husband she thought they might be robbed.
The Navios walked into the dining room and saw the two men seated at a table covering their faces with menus as they were looking around. Mr. and Mrs. Navio walked toward the hostess stand, where they discussed calling 911. As she began to call 911, both men stood up from the table, walked toward the exit, and pulled hoods up onto their heads. The shorter of two men, Wright, pulled out a gun with his left hand and pointed it at Mr. and Mrs. Navio from a distance of three to five feet. Davis did not show a gun although he had his hands on his pockets "like he had something."
Wright told them, "This is a robbery," and demanded their money. Davis, estimated by Mrs. Navio to be about 6'4", jumped over the bar counter and looked inside the cash register, but there was no money. Wright held the gun six inches from Mrs. Navio's face and pulled her cell phone from her hand. He ordered Mr. Navio to take him to the back office. Mr. Navio told him there was no money because it was early Sunday morning. One of the men unzipped Mrs. Navio's purse and grabbed the money she had placed inside. Mr. Navio, who had worked as a bartender for over ten years and had made it a point to recognize his customers, concentrated on the faces of the robbers.
Wright pointed his gun at the Navios and directed them into the dining area. He demanded that they lie down on the floor. They complied. When one of the restaurant's workers came out from the kitchen, Wright ordered her to lie on the floor as well.
Davis walked over to the table where Montgomery and her husband were seated. Montgomery had seen a woman walk into the dining room with her hands raised and two men walking behind her. She had tried to warn her husband but he was hard of hearing and did not react. Montgomery had ducked down under the table. When Davis approached their table, he said, "Give me your wallet." Montgomery's husband thought somebody was asking for the credit card slip he was signing and said, "Wait a minute. I'm not done." Davis reached over and put his hand on the husband's wallet. They struggled after the husband grabbed Davis's wrist. Davis loudly said to Wright, "[S]hoot him." Montgomery's husband then let go of Davis's wrist. Davis then turned to Montgomery and asked for her wallet. She reached in her purse and handed her wallet to Davis.
Meanwhile, Wright had walked over to the table where four men were dining and said, "This is a robbery." Wright picked up the money that had been left at the table to pay the bill. Davis joined Wright at the table. One of the men at the table stood up and said, "I'll kick your ass." Wright pointed the gun across one of the diner's heads and at the temple of another before he said, "Empty your pockets." The man who had stood up sat back down in his chair and took out a 50-dollar bill, which he threw on the floor. Two of the other men placed their money on the table, along with money that had been left there to pay the check. Davis and Wright picked up the money and left the restaurant.
Of the witnesses to the events at the Del Navio Restaurant, only Pedro Navio consistently identified both of the appellants. A few days after the robbery, an inspector went to the restaurant and showed Mr. Navio a six-photo lineup. With 100 percent certainty, he identified Wright as the man who pointed the gun at him. A few months later, Mr. Navio attended two physical lineups and identified both Wright and Davis. He again identified Wright as the one who had the gun. At the preliminary hearing and again at trial, Mr. Navio identified both Wright and Davis.
In contrast, the other witnesses who testified regarding the Del Navio Restaurant robbery were not consistent in their identification of the robbers. For example, although Marion Navio identified appellants at the preliminary hearing, she stated "it was nearly impossible to know for sure that it was them." At a physical lineup she had identified Davis as one of the robbers, but at a second physical lineup she could not identify anyone with certainty. At trial, however, she positively identified both Davis and Wright as the robbers.
Carol Balfe, the woman who had called 911 from outside the restaurant, initially identified Wright in a photo lineup. However, she was unable to identify either of the appellants at the preliminary hearing. At trial, she was sure Wright was the driver of the vehicle.
Montgomery, who was seated at a table with her husband, was unable to identify either of the robbers. Her husband did not testify at trial.
Larry Bagneschi, who was one of the men seated at the table with four male diners, testified at trial he was "very positive" that Wright and Davis were the robbers. However, Bagneschi had been unable to identify anyone when first shown a photo lineup three weeks after the robbery. In addition, whereas at the preliminary hearing he had identified Davis as the man who first came to the table and Wright as the man with the gun, at trial he stated it was Wright who first approached the table and Davis who followed with the gun. Only one of the other men at Bagneschi's table testified at trial, and he was unable to identify either of the robbers.
Market Montclair Shell Robbery - January 27
Tedros Gebrewolde worked at the Market Montclair Shell gas station. On the morning on January 27, a man that Gebrewolde thought was around 6'1" or 6'2" drove a silver Nissan Altima into the station and gave him money for gas. Gebrewolde left to check the vending machine and then returned to the cashier booth. When he returned to the booth he was followed by the man who had arrived in the Nissan. The man pulled out a black revolver and ordered Gebrewolde to open the cash register. The man took the money and drove away in the Nissan with a passenger who appeared to be African American. Gebrewolde wrote down the license plate number and called 911. He was able to identify Davis in a photo lineup shown to him on February 27. At the preliminary hearing, he could not identify Davis as the robber. He was not asked to identify the robber at trial.
7th Street Liquor Store Robbery — January 27
David Chong and his wife owned a liquor store located across from the West Oakland BART station on 7th Street. On the evening of January 27 two African American men walked into the store. One was about 6'3" to 6'5" and the other was about 5'5". The taller man handed Chong money to purchase a Gatorade. After Chong opened the register, the man pulled out a gun and threatened, "Give me the money or otherwise I'll kill you." The man grabbed the money from the register. The two men asked for more money. Chong's wife, who had sunk to the floor to try to hide, took money from a box on the floor and gave it to the taller man. The men left with about $700 and walked across the street to a Nissan Altima that appeared white in color.
Chong attended two physical lineups on February 27 and identified the "taller person," Davis, as one of the robbers, although he was unable to identify anyone in the second lineup. At the preliminary hearing, Chong was unable to identify either appellant. However, at trial he identified both Wright and Davis as the robbers. The store's surveillance video, without sound, was played for the jury and, according to the prosecutor, appeared to show Wright and Davis robbing the Chongs.
The surveillance video is not part of the record before this court.
Forensic Evidence
On February 4, a police evidence technician was dispatched to a tow yard to process a silver 2006 Nissan Altima. At this particular tow yard, the police stored cars that were stolen, used in a crime, or that otherwise had evidentiary value. The vehicle had the same license number as the vehicle stolen from Yazmin Maldonado on January 11. The technician found numerous cards and receipts inside the vehicle, including a Gold's Gym card bearing the name Pat Montgomery. The technician lifted various fingerprints from the inside and outside of the vehicle.
Montgomery, one of the Del Navio Restaurant patrons who was robbed on January 20, testified that she had a Gold's Gym card in her wallet at the time it was stolen.
A latent fingerprint examiner performed a computer search of fingerprint databases to see if there was a match for the prints lifted from the Nissan Altima. The search revealed a match with a set of fingerprints belonging to a person with the last name of Wright. The examiner retrieved Wright's record and compared the prints on file to the latent prints lifted from the Nissan. The examiner determined that two fingerprints lifted from the Nissan matched appellant Wright's right index finger and another print matched his right middle finger.
Procedural History
On November 20, 2008, the Alameda County District Attorney filed a 15-count information charging Wright and Davis with various crimes relating to their January crime spree. The district attorney charged Davis with a total of 11 counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), one count of attempted second degree robbery (§§ 211, 212.5, subd. (c), 664), one count of false imprisonment by violence (§ 236), and two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). As to four of the counts of second degree robbery, it was alleged that Davis had personally used a firearm during the commission of the offense. (§§ 12022,5, subd. (a), 12022.53, subd. (b).) As to the other seven counts of second degree robbery as well as the attempted second degree robbery and false imprisonment counts, it was alleged that a principal in the crime was armed with a firearm. (§ 12022, subd. (a)(1).) The district attorney further alleged that Davis had suffered three prior serious felony convictions (§ 667, subd. (a)(1)), three prior strike convictions (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), and had served one prior prison term within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
The district attorney charged Wright with a total of nine counts of second degree robbery (§§ 211, 212.5, subd. (c)), one count of attempted second degree robbery (§§ 211, 212.5, subd. (c), 664), and one count of false imprisonment by violence (§ 236). As to two of the counts of second degree robbery, it was alleged that a principal in the crime was armed with a firearm. (§ 12022, subd. (a)(1).) As to the other seven counts of second degree robbery as well as the attempted second degree robbery and false imprisonment counts, it was alleged that Wright had personally used a firearm during the commission of the offense. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The district attorney further alleged that Wright had served one prior prison term within the meaning of section 667.5, subdivision (b).
On March 24, 2009, appellants admitted the prior conviction allegations. The court also amended the information to delete the personal firearm use allegation as to Wright related to the false imprisonment count.
The matter proceeded to trial before a jury. The defense was misidentification, with defense counsel for Wright and Davis challenging the reliability of the eyewitness identifications of the robbers. The only witness called by the defense was Wright's father, who testified that his son is right-handed. The testimony was offered to call into question the testimony of robbery victims who recalled that Wright had a gun in his left hand at the Del Navio Restaurant robbery. The jury found appellants guilty as charged of all offenses and found all special allegations to be true.
The trial court sentenced Davis to serve a total of 43 years 8 months in prison.Wright received a 24-year sentence. Wright and Davis each filed timely notices of appeal.
Pursuant to section 1385, the court dismissed two of Davis's prior strike convictions, leaving him with only one prior strike for purposes of sentencing.
DISCUSSION
I. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALCRIM NO. 224 ON HOW TO ASSESS CIRCUMSTANTIAL EVIDENCE.
Appellants assert that the trial court erroneously instructed the jury with CALCRIM No. 224 concerning how to assess circumstantial evidence. They contend the instruction is confusing and misleading in a case such as this one in which the prosecution relies primarily upon direct evidence to prove a defendant's guilt. More specifically, they argue the challenged instruction invited the jurors to evaluate direct evidence based upon its reasonableness rather than its truthfulness. As we explain, appellants' contention is not well taken.
At the request of the prosecution and Wright's trial counsel, the trial court instructed the jury on the sufficiency of circumstantial evidence with CALCRIM No. 224, as follows: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that [the] People have proved each fact essential to that conclusion beyond a reasonable doubt also. Before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced [t]hat the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence, and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The People contend that Wright and Davis forfeited the claim of error because Wright's counsel specifically requested the instruction and Davis's counsel failed to object to its use. Davis contends there is no waiver where, as here, the instructional error purportedly affects "substantial due process rights." We shall assume, without deciding, that the issue may be raised on appeal.
CALCRIM No. 224 is substantially the same as its predecessor, CALJIC No. 2.01. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171, fn. 12.) "The purpose of [the instruction] is to clarify the proper use of circumstantial evidence." (People v. Yeoman (2003) 31 Cal.4th 93, 142.) CALCRIM No. 224 "is applicable only when the prosecution substantially relies on circumstantial evidence to establish any element of the case. [Citations.] The instruction should not be given where circumstantial evidence is incidental to and corroborative of direct evidence. [Citations]." (People v. Samaniego, supra, at p. 1171.) "[W]here circumstantial inference is not the primary means by which the prosecution seeks to establish that the defendant engaged in criminal conduct, the instruction may confuse and mislead, and thus should not be given. [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 582; accord People v. Yeoman, supra, 31 Cal.4th at p. 142; People v. Brown (2003) 31 Cal.4th 518, 563.)
In this case, appellants contend the instruction was confusing and misleading because the prosecutor relied primarily on eyewitness testimony. While it is true that the prosecution's strongest evidence of most of the robberies was the victims' identification of the robbers, eyewitness testimony was not always the most compelling evidence of the crimes. Appellants' main defense at trial was misidentification, with their attorneys urging the jury to question the reliability of the eyewitness testimony. The attack on eyewitness testimony was mostly focused on witnesses to the Del Navio Restaurant robberies. In the face of potentially unconvincing eyewitness testimony that was sometimes equivocal and subject to attack, the prosecutor told the jury in closing argument to rely on circumstantial evidence to prove that Wright and Davis committed the Del Navio Restaurant robberies.
The circumstantial evidence consisted of the following: the robbers used the same stolen silver vehicle at each of the robberies; police lifted Wright's fingerprints from the vehicle; police found in the vehicle the health club card that had been taken from Montgomery during the Del Navio Restaurant robberies; there was strong eyewitness testimony linking appellants to the robberies at several of the crime scenes; there was a surveillance tape of the liquor store robbery purportedly showing Wright and Davis as the robbers; and the victims were consistent in describing the robbers as one tall African-American man and one shorter African-American man. The prosecutor argued, in part, as follows: "The Nissan connection. This is [the] problem they have. Committing the same crimes with the same car. That car is at the crime scenes. It's at every scene." The prosecutor argued repeatedly that the use of the car circumstantially linked the crimes together: "same silver Nissan, same car, same crime, the exact same guy."
In his rebuttal, the prosecutor emphasized the reliance on circumstantial evidence: "Let's talk about [Wright's defense counsel's] argument. He wants you to not use your common sense. He wants you to forget. Now, he almost concedes that in that video that's his client, because he knows that you guys can see him, but he's trying to tell you that you can't use evidence from that crime as circumstantial evidence to the Del Navio crime. Oh, yes, you can. Same guys; same crime; same car, that's how you use it. That's exactly how you use it."
Because the prosecutor relied substantially on circumstantial evidence to prove appellants' involvement in the Del Navio Restaurant robberies, the court did not err in instructing the jury with CALCRIM No. 224. Even if the instruction were unwarranted under the circumstances, appellants have failed to adequately explain how they were prejudiced. Appellants contend the error is of federal constitutional magnitude to the extent it lessened the prosecution's burden of proof, thereby mandating reversal unless the error is shown to be harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) The contention that the standard circumstantial evidence instruction lessens the prosecution's burden of proof has been consistently rejected by our Supreme Court. (See People v. DePriest (2007) 42 Cal.4th 1, 52 [collecting cases].) Therefore, the instruction's prejudicial effect, if any, is assessed under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836, which specifies that reversal is required only if it is reasonably probable that a result more favorable to the appellant would have been obtained absent the error.
Appellants' claim to have been prejudiced because the jury was instructed with CALCRIM No. 224 appears to be a novel contention. The cases on which appellants rely primarily involve defendants who claimed they were prejudiced by the court's failure or refusal to give the instruction. (See People v. Yeoman, supra, 31 Cal.4th at p. 142 [court declined to give instruction]; People v. Brown, supra, 31 Cal.4th at p. 563 [court refused to give instruction]; People v. Anderson, supra, 25 Cal.4th at p. 583 [court refused request to give instruction]; People v. Smith (1963) 223 Cal.App.2d 225, 235-236 [court refused defense request to give instruction], disapproved on another ground in People v. Hood (1969) 1 Cal.3d 444, 449-450.) In the only other case relied upon by appellants that concerns the circumstantial evidence instruction, the defendant's claim was that it was error to give a general instruction on circumstantial evidence in CALCRIM No. 224 instead of a more specific instruction that addresses circumstantial evidence of intent or mental state. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1170-1171.) In short, appellants have failed to cite a single case in which a defendant was prejudiced—or even claimed to have been prejudiced—by the fact that a jury was instructed with CALCRIM No. 224 or its predecessor instruction, CALJIC No. 201, except in a matter in which the defendant argued that a more specific circumstantial evidence instruction should have been given.
The cases appellants cite in support of their contention, in turn, rely exclusively upon earlier cases in which the defendants complained about the failure to give a circumstantial evidence instruction. (See People v. Marquez (1992) 1 Cal.4th 553, 577; People v. Wright (1990) 52 Cal.3d 367, 405-406, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Wiley (1976) 18 Cal.3d 162, 174; People v. Gould (1960) 54 Cal.2d 621, 628-629, overruled on another ground in People v. Cuevas (1995) 12 Cal.4th 252, 272; People v. Yrigoyen (1955) 45 Cal.2d 46, 49; People v. Williams (1984) 162 Cal.App.3d 869, 874.)
The lack of case authority for appellants' position is not surprising. The standard circumstantial evidence instruction is generally considered to be favorable to the defense. (See People v. Magana (1990) 218 Cal.App.3d 951, 955.) "[T]he obvious purpose of the instruction is to limit the use of circumstantial evidence in establishing [proof beyond a reasonable doubt]." (People v. Anderson (2007) 152 Cal.App.4th 919, 931, italics added.) The instruction "cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant's guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant's guilt." (Ibid.)"Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence." (Ibid.)
We have no disagreement with case authority holding that CALCRIM No. 224 may confuse and mislead a jury in a case that turns primarily on direct evidence. However, we disagree with appellants' mistaken assumption that any resulting confusion or misdirection necessarily favors the prosecution and lowers the burden of proof. To the contrary, the instruction tends to favor the defense because it could potentially mislead the jury into conducting an unnecessarily rigorous and potentially confusing evaluation of direct evidence using a two-step process that is intended to limit the use of circumstantial evidence. To the extent this process of evaluating evidence also limits the use of direct evidence, the prosecutor's burden is unjustifiably enhanced.
Appellants contend that CALCRIM No. 224 erroneously informed the jury that it must evaluate whether direct evidence is reasonable as opposed to whether it is true. Their contention is based on misreading of CALCRIM No. 224, which consists of two distinct steps. First, the jury must determine whether each fact essential to an inferential conclusion has been proven beyond a reasonable doubt. Second, the jury must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. (CALCRIM No. 224.) Thus, the instruction does not ask the jury to determine whether a fact is reasonable; it asks the jury to assess whether the inference to be drawn from the fact is reasonable. Contrary to appellants' contention, CALCRIM No. 224 does not permit a juror to base a finding of guilt upon evidence that is "reasonable" even though it is false. The first prong of the instruction precludes reliance on evidence that is not proved beyond a reasonable doubt.
Appellants also assert that CALCRIM No. 224 permits the jury to treat the "subsidiary question of credibility of individual witnesses as circumstantial facts which must be measured by their objective reasonableness." We disagree. " „ "It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' [Citations]" (People v. Wilson (1992) 3 Cal.4th 926, 943.) Further, jurors are presumed to be intelligent and capable of understanding and correlating all jury instructions that are given to them. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1089.)
Here, the jury was instructed with CALCRIM No. 223, which explains the difference between direct and circumstantial evidence. The jury was also instructed with CALCRIM No. 226, which addresses witness credibility. Among other things, CALCRIM No. 226 specifically directs the jury, "You alone must judge the credibility or believability of the witnesses" and that "[i]n deciding whether testimony is true and accurate, use your common sense and experience." When the instructions are considered as a whole, it is apparent that the credibility of a witness is not an indirect or circumstantial fact that is assessed under CALCRIM No. 224. Further, the instructions clarified that a juror's assessment of witness credibility is governed by CALCRIM No. 226. Therefore, there is no reason to believe the jury would have applied CALCRIM No. 224 to assess witness credibility.
We conclude the trial court properly instructed the jury with CALCRIM No. 224 in light of the prosecution's reliance on circumstantial evidence to prove appellants' guilt. Further, appellants have offered no plausible reason to believe the instruction, even if erroneously given, caused them to suffer any prejudice that would merit reversal. II. CALCRIM NO. 220 IS NOT MISLEADING AS TO THE MEANING OF REASONABLE D OUBT .
Appellants contend the trial court erred in instructing the jury with CALCRIM No. 220, which states in part that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true." They claim the term "abiding conviction" is ambiguous and suggests a standard equivalent to proof by clear and convincing evidence, which is a less rigorous standard than proof beyond a reasonable doubt.
Appellants acknowledge that our Supreme Court recommended the use of a reasonable doubt instruction that includes the phrase "abiding conviction." (People v. Freeman (1994) 8 Cal.4th 450, 504, fn. 9.) In People v. Stone (2008) 160 Cal.App.4th 323, 334, a panel of this court held that the defendant's attacks on the use "of the phrase 'abiding conviction' must give way to the great weight of legal authority approving that very language." Among other things, this court found highly persuasive our Supreme Court's approval of the challenged language in People v. Freeman. (People v. Stone, supra, at p. 334.) In addition to citing numerous California cases approving the standard instruction on the burden of proof (ibid.), this court also cited the opinion of the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 14-15, in which the high court stated, "An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof. [Citations.]" (Italics added.)
Because appellants present no compelling reason for us to depart from the long line of cases approving of the reasonable doubt instruction, we reject their challenge to CALCRIM No. 200. III. THE TRIAL COURT DID NOT E RR IN F AILING TO CONDUCT A MARSDEN H EARING FOR WRIGHT.
Wright contends the trial court erred by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden)after he requested that the court appoint a new attorney to represent him. We disagree.
Although Davis joined in all the arguments made by Wright on appeal, this issue is inapplicable to Davis, who was afforded a Marsden hearing on February 9, 2009.
A. Background
On December 2, 2008, appellants appeared before the court for their arraignment on the information. Davis pleaded not guilty and denied all special allegations and sentencing enhancements. Davis then indicated he "want[ed] to file a Mercy [sic] motion." The court set a hearing for the following Monday, December 8, and told Davis to remind the court "that you want your Marsden motion next Monday and I'll get you to a courtroom to have that heard."
The court then turned to Wright, who pleaded not guilty and denied all special allegations and sentencing enhancements. After the court set the matter for a further hearing on the following Monday, December 8, Wright interjected, "Excuse me, your Honor. I would like another representation." The court responded, "You all can have all your Marsden motions. We'll deal with that on the 8th."
When the court reconvened on December 8, appellants waived time for trial. Neither the court nor the parties mentioned anything about Marsden motions or requests for new counsel. The court set the next hearing date for February 9, 2009.
Shortly after the hearing began on February 9, 2009, Davis asked for new counsel and told the court he was ready to have his Marsden motion heard. The court inquired whether another courtroom was available to hear the Marsden motion. Wright's defense counsel then asked whether the parties could come back at a later date for "the Marsden," to which the court responded, "I'm doing the Marsden right now, I got a court for you right now." (Italics added.) The court did not conduct a Marsden hearing for Wright, and there was no further discussion of any request Wright might have made for a Marsden hearing after the court stated it would conduct the hearing "right now" in response to the request of Wright's trial counsel to continue the Marsden hearing to a later date.
After the court directed Davis to another courtroom for a hearing on his Marsden motion, Davis told the court he wanted to withdraw the motion. Despite Davis's purported withdrawal of his motion, the judge sent him and his counsel to another courtroom, where Davis indicated he did not wish to withdraw his Marsden motion. The court then heard and denied Davis's Marsden motion.
B. Analysis
" 'A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 431; see Marsden, supra, 2 Cal.3d at pp. 123-124.) When a defendant seeks to replace his appointed counsel, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel's inadequacy. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1190.) However, the trial court has "no obligation to initiate the Marsden inquiry sua sponte. A trial court's duty to conduct the inquiry arises 'only when the defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel.' [Citation.]" (People v. Leonard (2000) 78 Cal.App.4th 776, 787.) "Although the defendant need not file a 'proper and formal legal motion' he must express 'at least some clear indication . . . that he wants a substitution of attorney.' " (People v. Lee (2002) 95 Cal.App.4th 772, 780, fn. omitted.)
A defendant who makes a timely Marsden motion may, by his postmotion conduct, abandon his request for a Marsden hearing. (People v. Vera (2004) 122 Cal.App.4th 970, 981-982 (Vera).) In Vera, the defendant made an oral Marsden motion and began listing some of the reasons he believed his counsel was ineffective. The court heard several of the defendant's concerns but then interrupted the defendant because a jury in another matter was waiting to enter the courtroom. When the defendant stated he was not finished, the court explained that the Marsden motion was denied without prejudice and could be renewed at a later time. (Id. at pp. 975-976.) The defendant failed to renew his Marsden motion at a later hearing. (Id. at pp. 981-982.) On appeal, the court held that the defendant had abandoned his Marsden motion by failing to further present his complaints at the later hearing. (Id. at p. 982.) The court reasoned, "In this case, the trial court offered defendant the opportunity for a further hearing. Defendant's failure to take advantage of this offer can only be interpreted as an abandonment of his unstated complaints. [Citation.] While we are aware of no precedent finding abandonment of a Marsden motion, it is established that a defendant's conduct may amount to abandonment of a request to represent himself under Faretta v. California (1975) 422 U.S. 806 [(Faretta)]. [Citations.] If a defendant can abandon his request to substitute himself for counsel, a defendant can abandon his request to substitute another counsel. We conclude that defendant abandoned his unstated complaints about counsel by not accepting the court's invitation to present them at a later hearing." (Vera, supra, at pp. 981-982.)
The Vera court relied in part upon People v. Kenner (1990) 223 Cal.App.3d 56, which held that a defendant's postmotion conduct may establish abandonment of a motion for self-representation. (See Vera, supra, 122 Cal.App.4th at p. 982.) In Kenner, the court set the matter for a hearing on a Faretta motion after the defendant asked to represent himself. The defendant missed the Faretta hearing on four occasions because he was in custody in another county on a different matter. When the defendant ultimately appeared in court, his attorney asked that the motion be reserved until the next pretrial hearing. Thereafter, the court failed to hold a hearing on the Faretta motion, and the defendant did not mention his motion again until he challenged his conviction on appeal. (People v. Kenner, supra, at pp. 58-59.) The appellate court concluded the defendant was deemed to have abandoned or withdrawn the motion, noting he never asked for a ruling despite ample opportunity to do so. (Id. at p. 62.) The court observed, "Defendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, as here, we believe it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion." (Ibid.)
Here, Wright's actions demonstrate an abandonment of his initial—and only— Marsden request. Wright and Davis first expressed their desire to have new counsel at the hearing held on December 2, 2008. Although the court indicated it would consider the requests on December 8, Wright did not pursue the matter, just like the defendant in Vera who failed to take advantage of an offer to renew his Marsden motion at a later date. Such conduct amounts to an abandonment of the motion. (Vera, supra, 122 Cal.App.4th at p. 982.)
On February 9, 2009, Davis pursued a Marsden motion but Wright did not. Indeed, Wright was silent throughout the hearing. It is true that Wright's counsel asked the court if "the Marsden" could be scheduled for a later date. The court had no reason to believe that Wright was also pursuing a Marsden motion at that time and could have reasonably interpreted this statement to be a reference to the Marsden motion Davis had just made in open court. Further, the court could not be expected to remember that Wright had briefly asked for new counsel more than two months earlier—a request that was abandoned in any event when Wright failed to pursue the matter at the following hearing despite being invited to do so. Therefore, we conclude the court had no duty to conduct a Marsden hearing for Wright on February 9 because Wright failed to offer any indication, much less a clear indication, that he sought a new attorney or was receiving ineffective assistance of counsel. The court had ample justification for believing—as its actions would suggest— that Davis was the only defendant who sought a Marsden hearing.
Even if one concluded the court had a duty to conduct a Marsden inquiry with respect to Wright on February 9, Wright's conduct nonetheless constituted an abandonment of his request for new counsel. When a "court's failure to hear or rule on [a] motion appears to be inadvertent," a defendant will be deemed to have waived or abandoned the motion unless the defendant "make[s] some appropriate effort to obtain [a] hearing or ruling." (People v. Braxton (2004) 34 Cal.4th 798, 813.) In this case, any failure to conduct a Marsden inquiry with respect to Wright was plainly inadvertent. At the hearing held on February 9, the court quickly accommodated Davis's request for a Marsden hearing and even refused to accept Davis's purported withdrawal of the Marsden motion. The court did not once mention Wright in connection with the Marsden issue, suggesting it was unaware of Wright's purported Marsden motion. The court was clearly willing to accommodate the request for a Marsden hearing because it did so in Davis's case. Yet Wright remained silent and failed to remind the court that he, too, sought a Marsden hearing. Further, he tacitly accepted his defense counsel's assistance throughout the remainder of the proceedings, choosing to wait until after he was convicted and sentenced to raise the court's purported failure to address his Marsden motion. Under these circumstances, Wright is deemed to have abandoned his motion. Accordingly, the court did not err in failing to conduct a Marsden hearing for Wright.
IV. THE COURT SECURITY FEE MUST BE REDUCED.
Appellants contend the trial court erred by imposing a $30 court security fee for each criminal conviction they suffered, arguing that the court should have instead imposed a $20 fee for each conviction. We agree that the court security fee must be reduced.
Before July 28, 2009, section 1465.8, subdivision (a)(1) provided in relevant part that "[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . ." (Stats. 2007, ch. 302, § 18.) Effective July 28, 2009, subdivision (a)(1) of section 1465.8 was amended to increase the security fee from $20 to $30 on every conviction for a criminal offense. (Stats. 2009-2010, 4th Ex. Sess., ch. 22, § 29.)
The jury returned its verdict on April 15, 2009, before the statute was amended to increase the security fee from $20 to $30. The court sentenced appellants on September 25, 2009, after the operative date of the amendment. The court applied the amended version of the statute and thus imposed a court security fee of $30 per conviction. In the case of Davis, who was convicted of 15 counts, the court imposed a court security fee of $450. The court imposed a court security fee of $330 in the case of Wright, who was convicted of 11 counts.
In People v. Alford (2007) 42 Cal.4th 749, 754 (Alford), our Supreme Court held that former section 1465.8, as originally enacted in 2003, applied to all convictions after the statute's operative date regardless of when the offenses were committed. Appellants contend the 2009 amendment to section 1465.8 raising the fee to $30 cannot be applied to them because they were convicted before the operative date of the amendment. Appellants take the position they suffered their "convictions" on the date the jury returned its verdict. The People agree that the question of whether to impose the increased court security fee turns on the definition of "conviction" within the meaning of section 1465.8. However, the People urge that appellants were not convicted until the court pronounced sentence, which occurred after the amendment became operative.
The question of when a defendant suffers a conviction was addressed in People v. Davis (2010) 185 Cal.App.4th 998 (Davis). There, the appellate court held that a court facilities fee imposed by Government Code section 70373 did "not apply to cases in which the defendant's conviction, by plea or jury verdict, was rendered before the . . . effective date of the statute." (Davis, supra, at p. 1000.) The Davis court explained: "It has been settled law for over 250 years that a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt. [Citations.]" (Id. at p. 1001.) The court acknowledged an exception to the general rule involving civil penalties that create a " 'civil disability,' " such as being denied the right to vote or being disqualified from office. In such cases, "the conviction is held not to occur until the sentence has been pronounced. [Citation.]" (Ibid.)Because the facilities fee assessment does not constitute a civil disability, the court held that the general rule governed and that Government Code section 70373 only applies to cases in which a conviction by plea or jury verdict occurs on or after the statute's effective date. (Davis, supra, at p. 1001.)
The People rely on Alford to argue that "conviction" within the meaning of section 1465.8 refers to the court's pronouncement of sentence and judgment. In Alford, the court held that the purpose of the court security fee was to produce needed revenue and maximize funds available for court security. (Alford, supra, 42 Cal.4th at p. 754.) The court reasoned that the Legislature intended to apply the statute retroactively in order to produce needed revenue rather than wait for the income to be realized at some future time. (Ibid.)The People argue this same rationale—i.e., maximizing revenue—dictates that a "conviction" does not occur until sentence and judgment are pronounced, thereby making the amended version of section 1465.8 and its increased security fee potentially applicable to more cases. We disagree.
Alford does not address the meaning of the term "conviction." Instead, the court in Alford focused on whether section 1465.8 could be applied to conduct that preceded its operative date. (Alford, supra, 42 Cal.4th at pp. 753-754.) Further, the facts of Alford do not assist the People. There, the jury's verdict, and thus the defendant's "conviction," occurred after the operative date of the statute. (Id. at pp. 752-753.) In any event, while a legislative desire to maximize revenue may bear upon whether section 1465.8 is retroactively applied, that purpose does not dictate the proper interpretation of "conviction" as used in the statute. Absent some indication the Legislature intended the term "conviction" to have a meaning different than it is generally given, we may assume the Legislature intended to use the commonly understood meaning of the term. (Cf. Flannery v. Prentice (2001) 26 Cal.4th 572, 578 [statutory term's ordinary import used absent clear indication the Legislature intended otherwise].)
Except in cases involving a civil disability, the general rule is that a conviction occurs when a defendant enters a guilty plea or is convicted by a jury or by a judge sitting as a finder of fact. (Davis, supra, 185 Cal.App.4th at p. 1001.) Because section 1465.8 does not impose a civil disability, the general rule applies here. Therefore, the amended version of section 1465.8 does not apply unless a defendant's conviction by plea or jury verdict occurred on or after the amendment's operative date. The court should not have applied a $30 court security fee to appellants, whose convictions by jury verdict predated the operative date of the 2009 amendment to section 1465.8. Accordingly, we modify the judgments to reflect the proper court security fee of $20 per conviction. The total court security fee applicable to Davis is $300, while the total court security fee applicable to Wright is $220. V. THE MINUTES AND ABSTRACT OF JUDGMENT MUST B E CORRECTED.
Wright contends that, as to his conviction for false imprisonment, the typewritten clerk's minutes and the abstract of judgment incorrectly reflect a sentence enhancement for personal use of a firearm pursuant to section 12022.53, subdivision (b), instead of section 12022.5, subdivision (a). The People concede the clerical error Wright has identified.
This issue is inapplicable to Davis even though he joined in all the arguments made by Wright on appeal. Davis was not charged with or convicted of a firearm use enhancement pursuant to either section 12022.5, subdivision (a) or section 12022.53, subdivision (b) in connection with the false imprisonment count. The abstract of judgment properly reflects that, as to Davis's conviction for false imprisonment, he received a one-year concurrent sentence pursuant to section 12022, subdivision (a)(1).
The information charged Wright with false imprisonment and a related firearm use enhancement pursuant to both section 12022.5, subdivision (a), and section 12022.53, subdivision (b). On March 24, 2009, the trial court amended the information and deleted the section 12022.53, subdivision (b) allegation as to that count. Although Wright was properly sentenced to a four-year middle term for the firearm use enhancement (see § 12022.5, subd. (a)), the minutes and the abstract of judgment incorrectly cite section 12022.53, subdivision (b) as the basis for the enhancement. The minutes and abstract of judgment shall be corrected to reflect that the enhancement associated with Wright's false imprisonment conviction in count 10 is based on section 12022.5, subdivision (a).
Section 12022.53 applies only to crimes specified in subdivision (a) of that section. False imprisonment (§ 236) is not one of the specified crimes.
VI. WRIGHT IS ENTITLED TO THREE ADDITIONAL DAYS OF PRESENTENCE CUSTODY CREDIT.
The trial court awarded Wright 572 actual days of presentence credit and 86 days of conduct credit pursuant to section 2933.1, for a total of 658 days of presentence credit.Wright contends the court erred in calculating the length of his presentence custody and that he is entitled to three additional days of presentence credit. The People concede the error.
Section 2933.1 limits conduct credit, including presentence conduct credit, to 15 percent for defendants convicted of violent felonies listed in section 667.5, subdivision (c). (§ 2933.1, subds. (a) & (c).) Robbery is a violent felony to which the credit limitation applies. (§ 667.5, subd. (c)(9).)
Wright was arrested on February 29, 2008, and sentenced on September 25, 2009. The date of arrest (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124) and the date of sentencing (People v. Smith (1989) 211 Cal.App.3d 523, 525-526) must be included in the calculation of presentence custody. Calculated from his arrest until the date of sentencing, Wright's period of actual presentence custody totals 575 days, not the 572 days the trial court awarded. His presentence conduct credits, calculated at 15 percent of 575, remain 86 days. Accordingly, the abstract of judgment for Wright must be corrected to reflect a total of 661 total days of presentence custody credits, consisting of 575 days of actual custody plus 86 days of conduct credits pursuant to section 2933.1.
Davis claims that he, too, is entitled to an additional three days of presentence custody credits because, like Wright, he was arrested on February 29, 2008, and sentenced on September 25, 2009. He claims the People conceded the issue. Davis is mistaken. The People conceded that the trial court had erred in calculating presentence custody credits, but only as to Wright. The court properly awarded Davis a total of 661 days of presentence conduct credits, as reflected in the court's oral pronouncement of sentence, the clerk's minutes, and the abstract of judgment. Davis already received all of the presentence custody credits to which he is entitled.
VII. THE TRIAL COURT IMPOSED PROPER SENTENCES FOR ATTEMPTED SECOND DEGREE ROBBERY.
In his opening brief, Wright contended his sentence for attempted second degree robbery must be reduced by one-half, arguing that section 664, subdivision (a) specifies that the punishment for an attempt is one-half the term prescribed for a conviction of the offense attempted. Davis joined in the argument.
As Wright acknowledges in his reply brief, in which he withdraws the claim of error, the sentence imposed for his attempted robbery conviction is correct. "Section 664 is inapplicable to convictions for attempted second degree robbery." (People v. Moody (2002) 96 Cal.App.4th 987, 990; § 213, subd. (b).) As specified in section 213, subdivision (b), attempted second degree robbery is "punishable by imprisonment in the state prison" "[n]othwithstanding Section 664." "[T]he appropriate triad for . . . attempted second degree robbery . . . is . . . 16 months, two years, or three years." (People v. Moody, supra, at p. 990; see § 18.)
In the case of Wright, the court properly sentenced him to a concurrent middle term of two years for attempted second degree robbery. As to Davis, the court properly imposed the middle term of two years, doubled pursuant to the Three Strikes law, for a four-year concurrent term for attempted second degree robbery.
DISPOSITION
The judgment against Davis is modified to reflect that the court security fee imposed pursuant to section 1465.8 is reduced from $450 to $300. The judgment against Wright is modified as follows: (1) the court security fee imposed pursuant to section 1465.8 is reduced from $330 to $220, and (2) Wright is awarded an additional three days of presentence custody credits, for a total of 661 days of presentence custody credits, consisting of 575 days of actual custody plus 86 days of conduct credits pursuant to section 2933.1. The trial court shall correct the abstract of judgment and the court's minutes from September 25, 2009, to reflect that the firearm use sentence enhancement associated with Wright's false imprisonment conviction in count 10 of the information is based on section 12022.5, subdivision (a). The trial court is directed to prepare amended abstracts of judgment for Davis and Wright in accordance with this disposition and deliver them to the Department of Corrections and Rehabilitation.
In all other respects, the judgments against Davis and Wright are affirmed.
McGuiness, P.J. We concur: Pollak, J. Siggins, J.