Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus CountySuper. Ct. No. 1107909. Scott T. Steffen, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Robbie Refugio Hull, Jr. was convicted by jury trial of vehicle theft (Veh. Code, § 10851) and sentenced to three years of felony probation with 365 days in jail. On appeal, defendant contends the trial court erred (1) by failing to hold a Marsden hearing when defendant made a Faretta motion and voiced his dissatisfaction with appointed counsel, (2) by failing to offer defendant an investigator to locate and subpoena defense witnesses, and (3) by excluding defendant from the jury instruction selection process and refusing to grant his request for an attorney to represent him during that process. We affirm.
People v. Marsden (1970) 2 Cal.3d 118.
Faretta v. California (1975) 422 U.S. 806.
FACTS
Mr. Reece had owned his 1991 maroon Honda Accord for about four years. On the evening of April 13, 2006, he parked the car in his driveway as usual. He locked the car and rolled his 15-foot-tall cyclone gate closed. In the morning, he looked outside and realized his car was gone. He called the police.
On April 21, 2006, at about 8:30 a.m., Deputy Sheriff Fara and his canine were on duty in a marked patrol car. Fara noticed a maroon Accord, driven by defendant, drive by and come to a stop at a red light. Fara ran the license plate number on the police computer and learned that the car was stolen. He followed the car and requested assistance. The car turned into a bank parking lot and Fara followed. When defendant immediately opened the driver’s door, Fara announced that he would release his dog if defendant left the car. After backup arrived, defendant and his four passengers were removed from the car.
Fara examined the car and noticed that the ignition had been ripped out (“punched”) and a screwdriver was lying on the driver’s seat. Defendant asked Fara if his friends were going to jail. Fara asked him why he wanted to know, and defendant responded, “Well, I’m the one who stole the vehicle and I don’t want them to go to jail.”
Fara detained everyone and arrested defendant for being in possession of a stolen vehicle. Fara questioned the passengers. Roger Zapata told Fara he had been at the park with the three other passengers. They were sitting around and smoking marijuana when defendant pulled up in the Honda and asked if they wanted to go to the bank with him. All four jumped into the car. Zapata did not know the car was stolen, but he figured it out while they were driving because he noticed the ignition had been punched.
Jonathan Scott, the front passenger, told Fara he was only along for the ride. He did not know the car was stolen until Fara pulled up behind them. Then he noticed the ignition had been punched.
Don Lacy, the left rear passenger, said he did not know the car was stolen. He went along because he thought they were going downtown.
Elizabeth Gonzalez, the right rear passenger, told Fara she rode along because she needed to go downtown for a court case.
DISCUSSION
I. Marsden Hearing
Defendant contends the trial court erred by failing sua sponte to conduct a Marsden hearing when defendant asked to represent himself and stated he was not comfortable with appointed counsel.
A. Facts
Defendant was represented by appointed counsel, Mr. Orenstein. When defendant first appeared in court, he asked to represent himself. He filled out a waiver form and, in the course of the court’s discussion regarding defendant’s understanding of the situation, the following occurred:
“THE COURT: You have the -- without getting into the facts and the circumstances of your case in any detail, why is it you want to represent yourself?
“THE DEFENDANT: Because I’m charged with auto theft and the own[er] of the automobile -- I don’t know what the report says, but I -- I’m not an auto theft -- thief. I didn’t steal this car.
“THE COURT: All right. But why do you want to represent yourself rather than have Mr. Orenstein represent you?
“THE DEFENDANT: Because I feel right now that there is no evidence saying that I stole this car. I don’t need anyone to represent me. I haven’t seen the report.
“MR. ORENSTEIN: I read it to you. We read the report to you.
“THE DEFENDANT: I didn’t say that I stole it; that I took it.
“MR. ORENSTEIN: It said -- basically the facts are such that you should have known that the car was stolen. And the report states that you made an admission that you stole the car. That’s on the second page. I read it to you in front of Mrs. Hertle yesterday, and I read it word for word.
“THE COURT: Apparently the police report said that the car was stolen based on --
“MR. ORENSTEIN: Them speaking to the victim. And then according to the police report, upon questioning by the policeman, [defendant] allegedly admitted that he stole the car.
“THE COURT: And further that there’s evidence that you should have known that the car was stolen.
“MR. ORENSTEIN: Right. It had a screwdriver, I believe, in the ignition, right?
“[THE PROSECUTOR]: Yes. It was punched.
“MR. ORENSTEIN: Okay.
“THE COURT: All right. So regardless of whether you did it or not[,] that’s not an issue for me to decide today. You’re entitled to have an attorney represent you at no cost if you can’t afford an attorney. And I’m wondering why you want to represent yourself rather than take advantage of the abilities of the --
“THE DEFENDANT: There’s personal reasons. Mr. Ornestein and I have dealt with each other before in the past, and I just don’t feel comfortable. I can’t -- I want to go with myself.
“THE COURT: All right.”
The court then continued its extensive discussion regarding defendant’s Faretta motion, ultimately granting defendant’s motion. The court convinced defendant not to immediately waive his preliminary hearing, urging him to come back in a few days after reading Mr. Orenstein’s papers, including the police report.
On the first day of trial, defendant declared he was ready to proceed. The court suggested that defendant change out of jail clothing and into civilian clothing.
After recess and outside the jury’s presence, the following took place:
“THE COURT: Mr. Wentz just came in and indicated he’d like to talk to [defendant] for a few minutes. I think it’s a bad idea for [defendant] to represent himself and I tried to convince -- I won’t say I tried, but I advised him fairly seriously as we went through the Faretta process, as I do with everyone. He seemed perfectly amenable to representing himself. He’s looking at state prison if he gets convicted because he’s got two prior --
“MR. WENTZ: Strikes?
“[THE PROSECUTOR]: No.
“THE COURT: He’s probation ineligible. He’s presumptively ineligible for probation.
“[THE PROSECUTOR]: [Penal Code sections] 12021, right, and 666.
“THE COURT: So if you’d like to talk to him, I’m all for that.
“MR. WENTZ: Was there an offer?
“[THE PROSECUTOR]: Yeah, two years, mid term. [¶] … [¶] Max is three.
“THE BAILIFF: We sent [defendant] across the hall to change [clothes] if you want to talk to him over there.
“THE COURT: Thank you, Mr. Wentz. [¶] And thank you for your indulgence, Mr. [Prosecutor].
“[THE PROSECUTOR]: No problem Judge.”
Another recess was held, after which defendant returned to the courtroom and the following occurred:
“THE COURT: Much better, [defendant]. All right. We’ll be back on the record. [¶] [Defendant] is back with us in civilian clothing looking much better.
“THE DEFENDANT: Thank you.
“THE COURT: You’ve had an opportunity to speak with Mr. Wentz informally, and you still wish to represent yourself?
“THE DEFENDANT: Well, I can’t see one attorney what he could do for me.
“THE COURT: Well, he could represent you at a trial. He knows how to cross-examine witnesses, he knows how to question jurors, make sure you get a favorable jury.
“THE DEFENDANT: He wants me to waive time, and I can’t waive time.
“THE COURT: I understand that. [¶] You were previously represented by Conflicts I, Mr. Orenstein’s firm, and you decided you didn’t want them to represent you because you chose to represent yourself.
“THE DEFENDANT: Well, he represented me before and he did things that -- we had a court trial and I didn’t know anything about it. He left me out of the decision-making process and I can’t afford this.
“THE COURT: Well, it’s up to you. We can reappoint Conflicts I to represent you. They may ask you to waive time for --
“THE DEFENDANT: I can’t waive time.
“THE COURT: -- a few days, but you have the right to have your trial in the next couple of weeks. I mean, they may need to -- the problem is, if you represent yourself, and you don’t do a good job, you’re looking at two or three years in state prison. And I understand you’re anxious to get this trial going and not waive time, but it might be worth a few extra days in county jail as opposed to three years or two years in state prison. Do you understand what I’m saying?
“THE DEFENDANT: I understand that but I can’t waive. No, I can’t waive any time.
“THE COURT: Why? Why is that?
“THE DEFENDANT: Because I’ve been in jail already 47 days and everyone is still saying I’m guilty, pretty much, is the way I feel. And down the line we’ll see the circumstances of this case if I’m guilty. I already did 45 days.
“THE COURT: I understand, but sometimes it’s worth taking a few extra days early in the process spending time on your case, if you can’t make bail, spending a few extra days.
“THE DEFENDANT: I’ve asked on several occasions for bail to be reduced, and to no avail. I was pretty much -- I’ve been here all of my life. I have a family of five kids here in this county. I’ve been here my whole life and I still want -- I can’t even get out for three or four days to take care of my own business. Why would I waive time?
“THE COURT: Well, that is a decision you have to make. I can’t make that for you. All I’m suggesting is it might be worth a few more days in the county jail and waive time rather than risk three years or two years in state prison. That is the trade-off here.
“THE DEFENDANT: No, I can’t waive time.
“THE COURT: All right. Do you understand if you’re found to be guilty you’re probably not eligible for [probation] and you may be sentenced to state prison for -- what is the triad?
“[THE PROSECUTOR]: 16, two, three, Your Honor.
“THE COURT: 16 months, two years, three years in state prison.
“THE DEFENDANT: Yes.
“THE COURT: You understand that?
“THE DEFENDANT: Yes, I do.
“THE COURT: You still wish to proceed representing yourself?
“THE DEFENDANT: Yes.
“THE COURT: All right.”
B. Analysis
Under People v. Marsden, supra, 2 Cal.3d 118, it is an abuse of discretion for a court to deny a defendant who seeks substitution of appointed counsel an opportunity to explain the reasons for his request. (Id. at p. 124.) “‘A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an alternative.’ [Citation.]” (People v. Clark (1992) 3 Cal.4th 41, 105.) Furthermore, “there is 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; People v. Lara (2001) 86 Cal.App.4th 139, 158.) A disagreement with counsel over reasonable tactical decisions is not enough. (People v. Lara, supra, at pp. 150-151.)
Here, defendant’s motion was to represent himself, not to substitute counsel. In fact, defendant insisted he did not want any attorney. Although defendant voiced some dissatisfaction with appointed counsel, he did not request appointment of different counsel and there is no reason apparent in the record for the trial court to have believed defendant was making a motion to substitute counsel rather than to represent himself. (People v. Cummings (1993) 4 Cal.4th 1233, 1318; People v. Burton (1989) 48 Cal.3d 843, 855.) As in Burton, defendant expressed dissatisfaction with his attorney, but “he made repeated, explicit requests to represent himself …. He never suggested he would like a different attorney. [Citation.] Nor is it the rule that whenever a defendant makes a motion to represent himself on the basis of dissatisfaction with counsel, the court automatically should inquire whether he would like to make a motion for substitution of counsel. [Citations.] [T]he two motions are fundamentally different, one raising the question of defendant’s competency to waive his right to counsel, and the other raising the question of existing counsel’s competency.” (People v. Burton, supra, at p. 855.) In this case, the trial court was not obligated to ask defendant if he desired appointment of different counsel or to treat the request as one made pursuant to Marsden. (People v. Cummings, supra, at p. 1318; People v. Burton, supra, at p. 855.) The court did not commit Marsden error by failing to conduct a hearing into the reasons for defendant’s dissatisfaction with counsel.
II. Ancillary Services
Defendant argues the trial court erred by failing to offer him an investigator to locate and subpoena two witnesses, Zapata and Scott. He claims their testimony appears to have been “crucial” to his defense. Again, defendant shows no prejudice from the alleged errors.
A. Facts
At the end of the first day of trial, defendant stated that he needed Zapata as a witness. The prosecutor responded that he had subpoenaed both Zapata and Scott as his own witnesses. Scott was served but did not appear. Zapata could not be located at his last known address and thus was not served. Defendant said there was also other information he needed. He referred to a police report regarding an incident two or three days after his arrest, in which Zapata apparently gave someone a vehicle that was not his own. The prosecutor repeated that Zapata could not be found.
Defendant asked the court if it could issue a warrant for Scott’s arrest because his failure to appear was against the law. The court said it could do so if the prosecutor wanted a warrant issued.
Defendant repeated that he wanted Scott subpoenaed as his own witness. The court responded: “Well, I’m not sure how you go about serving a subpoena. That is one of the difficulties in representing yourself.” Defendant asked if someone could attempt to serve Zapata at his address again.
Next, the following discussion took place.
“THE DEFENDANT: … Is there any way I can get Modesto Police Department records for three days after this incident since I don’t have any money for [an] investigator?
“THE COURT: I don’t have the records.
“[THE PROSECUTOR]: I don’t have the records, Your Honor. That is the sheriff’s department case. I don’t know why Modesto PD would have any reports related to this case except the car was initially stolen in Modesto. That is the only record they would have.
“THE DEFENDANT: This other vehicle was in --
“THE COURT: Well, I don’t think there is any evidence that shows --
“THE DEFENDANT: These people should have been suspects. They were in this vehicle.
“THE COURT: Well, they may be suspects in that other theft but …
“THE DEFENDANT: But we still need them here for this one here. I won’t even question them about that other one.
“THE COURT: I understand that but the problem is they can’t be found. Scott was found and took off.
“THE DEFENDANT: So can you put out a warrant? Isn’t that against the law to not show up for a subpoena?
“THE COURT: I can do that if Mr. [Prosecutor] asks me to do that. It’s his subpoena.
“THE DEFENDANT: Can I ask these be subpoena[ed], just these two?
“THE COURT: Well, you can do that but I don’t know how you’re going to serve that subpoena.
“THE DEFENDANT: Have someone drive by. Just Zapata …, if someone could drive by there, or I could maybe call and have somebody go by there and serve him, that would be legal. If he did show up in court, could I use him as a witness?
“[THE PROSECUTOR]: Sure. I wanted to use him as a witness.
“THE COURT: Mr. [Prosecutor] wanted him here.
“[THE PROSECUTOR]: I want him here as much as you do.
“THE DEFENDANT: No, I don’t think so.
“THE COURT: All right. Anything further?
“THE DEFENDANT: No.”
B. Analysis
“‘[T]he right to counsel guaranteed by both the federal and state Constitutions includes, and indeed presumes, the right to effective counsel [citations], and thus also includes the right to reasonably necessary defense services. [Citations.]’ [Citation.]” (People v. Blair (2005) 36 Cal.4th 686, 732.) “This requirement applies both to indigent defendants represented by counsel and to those who choose to represent themselves. [Citation.]” (Id. at p. 733.) “[D]epriving a self-represented defendant of ‘all means of presenting a defense’ violates the right of self-representation. [Citation.] Thus, ‘a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.’ [Citation.]” (Ibid.) “Unquestionably [a] defendant has the right to the process of the court to compel the attendance of witnesses on his behalf. [Citations.]” (People v. Avila (1967) 253 Cal.App.2d 308, 329-330, disapproved on other grounds in Eleazer v. Superior Court (1970) 1 Cal.3d 847, 852, fn. 5.) “‘The rights to notice, confrontation, and compulsory process’ mean, at a minimum, that time to prepare and some access to materials and witnesses are fundamental to a meaningful right of representation. [Citations.] An incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense. [But] this right is not unlimited. Security considerations and avoidance of abuse by opportunistic or vacillating defendants may require special adjustments. [Citations.]” (Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1446.) “[A]s [the Supreme Court has] observed, ‘[i]nstitutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense. [Citations.] When the defendant has a lawyer acting as advisory counsel, his or her rights are adequately protected. [Citations.]’ [Citation.] In the final analysis, the Sixth Amendment requires only that a self-represented defendant’s access to the resources necessary to present a defense be reasonable under all the circumstances. [Citation.]” (People v. Blair, supra, at p. 733.) “Thus, the crucial question underlying all of defendant’s constitutional claims is whether he had reasonable access to the ancillary services that were reasonably necessary for his defense.” (Id. at p. 734.)
In this case, assuming defendant was denied services that he should have received (e.g., an investigator and the power to subpoena and serve witnesses), we conclude he was not denied the ability to present a defense and therefore no prejudice appears. (See People v. Jenkins (2000) 22 Cal.4th 900, 1041 [showing of prejudice required].) Defendant argues the missing witnesses might have testified that someone other than defendant had stolen the car. He points out that the vehicle had already been missing for one week when he was found driving it. But defendant fails to understand, as he did at trial, that evidence that someone else stole the car was no defense to his crime: Vehicle Code section 10851 expressly includes driving a stolen vehicle. “‘The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant’s driving or taking of a vehicle belonging to another person, without the owner’s consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 180.) “Driving” a vehicle in violation of Vehicle Code section 10851 occurs “simply by the act of driving a car without the owner’s consent; the defendant need not have committed the original act of taking the car from the owner.” (People v. Frye (1994) 28 Cal.App.4th 1080, 1086.) Even when time has passed since the original theft of the automobile, “‘[T]he subsequent act by [the] defendant in driving the automobile without the consent of its owner [is] entirely separate and disconnected from the original theft of it.’ [Citation.]” (Id. at p. 1087.) Circumstantial evidence is adequate to show intent. (People v. Green, supra, at p. 180.) Indeed, “in most cases, evidence of intent [is] only circumstantial.” (People v. Ivans (1992) 2 Cal.App.4th 1654, 1664.) “The specific intent to deprive [an] owner of possession of his car may be inferred from all the facts and circumstances of the particular case. [Citations.]” (In re Robert V. (1982) 132 Cal.App.3d 815, 821.)
Here, defendant was found driving a car that had been stolen and whose ignition had been punched out and started with a screwdriver, which was still present in the car. From this circumstantial evidence, it is almost certain that the jury would have concluded that defendant was driving the car with the specific intent to deprive its owner of its possession, even if it had heard the evidence of possible third-party culpability by the passengers in the car. Defendant has not shown a reasonable probability of a better outcome had that evidence been presented. Indeed, as we have explained, evidence that someone else stole the car was not relevant to any defense because it did not contradict the evidence that defendant was driving the stolen car with the intent to deprive the owner of it. Defendant, therefore, failed to carry his burden to show that the persons he sought to subpoena could offer relevant testimony on his behalf. (See In re Finn (1960) 54 Cal.2d 807, 813 [defendant is entitled to compel attendance of witnesses but first he must show relevance of testimony]; People v. Fernandez (1963) 222 Cal.App.2d 760, 768-769, disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324-325 & fn. 5.) Moreover, defendant was not deprived of the ability to put on a defense by not locating these witnesses and presenting their testimony.
II. Jury Instruction Selection
Lastly, defendant contends he was not allowed to participate in the jury instruction selection process because he was not given the time and opportunity (e.g., because he was handcuffed or his lights were turned off) to examine the instructions chosen by the trial court. He argues his constitutional right to be present during trial was denied. He further maintains that the trial court should have granted his request for an attorney to assist him with jury instruction selection.
Defendant, however, fails to show prejudice from the alleged errors because he does not point to any errors in the instructions as given, or any instructions he would have given if he had had more time, opportunity or the assistance of counsel. (People v. Smith (1985) 38 Cal.3d 945, 952-953 [defendant unable to show prejudice from alleged denial of opportunity to examine jury instructions before conference]; see also People v. Bradford (1997) 15 Cal.4th 1229, 1357-1358 [defendant failed to show prejudice due to absence from jury instruction conference].) Furthermore, nothing in the record suggests the instructions were erroneous.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Hill, J.