Opinion
A115104
4-23-2008
THE PEOPLE, Plaintiff and Respondent, v. MARCHAN A. KING, Defendant and Appellant.
Defendant Marchan A. King was convicted of first degree burglary after breaking into a residential garage. He argues that the trial court abused its discretion in denying a motion to change his appointed attorney, that the prosecutor committed misconduct, and that his sentence was unlawfully imposed. We affirm.
I. BACKGROUND
Defendant, along with a codefendant, Carl Gooden, was charged in a second amended information with second degree burglary of a vehicle (Pen. Code, § 459) and first degree residential burglary. (Ibid.) The information also alleged that defendant had suffered one prior strike conviction (Pen. Code, §§ 1170.12, subd. (c)(1), 667, subd. (e)(1)) and one prior serious felony conviction. (Pen. Code, § 667, subd. (a)(1).)
The victim, Robert Perry, testified that the lock on his garage had been broken two or three weeks before the night of the incident. To prevent the garage door from being opened, he parked a car directly in front of the door. On the night of September 10, 2005, as he approached his house, Perry noticed that the cars window had been broken and the car had been rolled away from the garage door, which had been raised and propped open with a piece of wood. As Perry walked up the driveway, two men, whom he later identified as defendant and Gooden, emerged from the garage. When Perry confronted Gooden, Gooden picked up a bicycle and threw it at Perry. As Gooden threw the bicycle, defendant rode off on a second bicycle. Immediately thereafter Gooden picked up the thrown bicycle and followed defendant.
Perry spotted a patrolling police car coming up the street just as the pair rode off. After Perry flagged down the patrol car and explained the situation, the officers turned the car around and pursued defendant and Gooden, who were riding away on the bicycles. The officers eventually detained Gooden, but the other bicyclist rode off.
After the officers arrested Gooden, one of them radioed to police headquarters Perrys description of defendant as wearing a black baseball cap, black jacket, and blue jeans. Officers in a second patrol car soon spotted defendant, who was riding his bicycle, wearing dark pants and a black jacket, and sweating profusely, and detained him. Perry was brought to the scene and identified defendant as the second man who emerged from his garage.
Prior to trial, defendant moved to replace his appointed attorney. The motion alleged that counsel had failed to investigate defendants case and to present a defense, failed to meet with defendant, and had used "[r]acial slurs." A letter from defendants mother to the court in support of the motion elaborated on the claim of a racial slur and complained that counsel would not discuss the case with her.
At the Marsden hearing, the court began by noting receipt of the letter from defendants mother. It then asked defendant to state "with as much specificity and detail as you wish," the reasons for his dissatisfaction with counsel. Defendant explained that counsel had recommended he accept a seven-year plea offer, refused to implement defendants proposed defense strategies, was unresponsive to defendants family, and refused to discuss the case with defendant. Defendant then described a single incident that "really made [him] file this motion." When defendant had accused counsel of trying to "railroad" him, counsel responded under his breath, "Well, no, not yet." In the entire 12 pages of transcript, during which defendant spoke freely and at length, he did not mention a racial slur.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The court then questioned counsel about his experience and his tactical decisions on defendants behalf. Counsel explained the work he had done in connection with the case and denied having said, "[N]o, not yet." After further colloquy with defendant, the court concluded, "I dont have anything in front of me that gives me a legal basis to remove [counsel] as the attorney of record. I dont believe [counsel] said anything about railroading you. [Counsel] has practiced in my court a number of times, he doesnt talk that way. Sounds like hes done everything you want him to do when the trial date is still a month and a half away. [¶] . . . [¶] The Court would find [counsel] has performed in the manner that is professional and within the bounds of a reasonably competent attorney."
Gooden testified at trial, but defendant did not. Gooden explained that he had borrowed a bicycle the night of the break-in and was passing by Perrys house when he heard an explosion. He went over to investigate and looked inside the garage. At just that point, Perry returned home. After confronting Perry, Gooden picked up his bicycle and rode off. Just before, another man had come out of the garage and ridden off on a bicycle. Gooden did not know whether the man was defendant, whom he had never met before.
During cross-examination, the prosecutor questioned Gooden about his claim that he did not know defendant:
"Q. Now, you say youd never met Mr. King before?
"A. Never. Never met him, never seen him.
"Q. Youve been sitting together at the table over here for kind of a while now; right? And youve been in court together before?
"A. Just at that table, been in court
"Q. Okay. And at breaks and things, you talk to each other, dont you?
"A. No. They keep us separate.
"Q. At breaks?
"A. Oh, sitting here?
"Q. Sitting here in court, you talk to each other, dont you?
"A. We dont really talk. He just—he thinks that—just say things. I dont—you know, it aint directly to me.
"Q. You dont talk, you just say things?
"A. No. I said he just be saying what he say, and, you know, I just sit there, and pretty much thats it. I talk to his attorney. I be talking to him. Maybe you think I be talking to him.
"Q. Youve actually had conversations with Mr. King where youve been kind of laughing and talking, though, havent you?
"A. Not really conversation. Ive been talking—like I said, I talk, when I talk I direct it to his lawyer.
"Q. Youre saying at the breaks in this courtroom, the two of you have not had conversations between the two of you?
"A. Yeah, I mean, he have said something to me, but not like we just talk, talk, you know."
During rebuttal argument, the prosecutor addressed defense counsels criticism of Perrys testimony, saying, "[Counsel] referred a lot to Mr. Perry and called him a—referred to him as being not a truth-teller. He didnt want to call him a liar, but called him a nontruth-teller. . . . [¶] . . . [¶] But I would submit to you that with [Perrys] three different statements, including [Perrys] testimony, his preliminary hearing testimony and his statement, the best that they can come up with is that he said he was wearing blue jeans—black jeans—sorry—that he was wearing darker jeans than what [Perry] remembered. And I think he said dark pants in his original statement; that perhaps he didnt mention that he had a beard, and that the height might be a little bit off. And that he said he was wearing—or that he was riding a black bike and not a blue bike. Those are the discrepancies that hes coming up with."
The jury acquitted defendant on the charge of burglary of a vehicle, but it found him guilty of residential burglary. The trial court found true the allegations regarding defendants prior convictions. Defendant was sentenced to the middle term of four years on the burglary charge, which was doubled as a result of defendants prior strike. An additional five-year enhancement for a serious felony conviction resulted in a total sentence of 13 years.
II. DISCUSSION
A. Defendants Marsden Motion
Defendant points out that his mothers letter accused his attorney of using a racial slur and argues that "[i]f defense counsel made such a statement, the court should have granted" his Marsden motion.
Under Marsden, supra, 2 Cal.3d 118, the Supreme Court held that when a defendant seeks to substitute appointed counsel, the trial court must hold a hearing to permit the defendant to explain the basis of his or her request. (Id. at p. 124.) The trial courts duty at a Marsden hearing is to "listen to and evaluate a defendants claim that counsel are failing to perform adequately." (People v. Memro (1995) 11 Cal.4th 786, 859.) The motion should be granted if the record developed at the hearing clearly shows that the appointed attorney is not providing adequate representation or that irreconcilable conflict exists that makes inadequate representation likely. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) The trial courts decision is reviewed for abuse of discretion. (People v. Earp (1999) 20 Cal.4th 826, 876.)
Defendant relies on Frazer v. U.S. (9th Cir. 1994) 18 F.3d 778 (Frazer), in which the federal court concluded that the trial court erred in failing to provide the defendant an evidentiary hearing on a motion to replace his appointed attorney. The defendant claimed that the attorney used a racial slur and threatened not to provide a competent defense if the defendant insisted on going to trial. (Id. at pp. 780, 784.) The court held that the facts alleged, if proved, would constitute grounds for replacement. (Id. at p. 784.)
Unlike the defendant in Frazer, defendant was granted a full hearing to air his differences with counsel, but he failed to prove that a racial slur had been used. On the contrary, there was no admissible evidence at all that his attorney used a racial slur. Defendant did not mention it during the Marsden hearing, although he was given several opportunities. On the contrary, he described as the motivating factor for his motion an entirely different comment that had no overt racial content. His mothers letter provides no evidence, since it is not a sworn statement, and it is not clear that the statement would be competent even if sworn, since the letter does not state that she personally witnessed the slur. Defendant did list the racial slur in a conclusory manner in his motion, but the burden was on defendant to raise and explain the issue (and provide counsel an opportunity to respond) at the Marsden hearing if he wanted it to be considered by the trial court. Accordingly, the references to a racial slur in the record provide no grounds for finding that the trial court abused its discretion in denying defendants motion.
Oddly, defendant also argues that "it appears that the court did not hold an evidentiary hearing on the issue" of the racial slurs. The Marsden hearing was such an evidentiary hearing.
We have reviewed the record of the Marsden hearing and find no other basis for concluding that the trial court abused its discretion in finding that counsel was providing adequate representation and did not have an irreconcilable conflict with defendant.
B. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct during the cross-examination of Gooden and during closing argument, when she purportedly referred to defendants decision not to testify.
Because of " `the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state, " a prosecutor is held to a standard higher than that imposed on other attorneys. (People v. Hill (1998) 17 Cal.4th 800, 820.) Two separate standards govern prosecutorial misconduct, federal and state. "Prosecutorial misconduct is reversible under the federal Constitution when it `infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] `Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1124.)
Prosecutorial misconduct is subject to a strict rule of waiver. An incident of alleged misconduct may not be raised on appeal unless a timely objection was made to the trial court, the basis for the objection was identified, and a request was made to admonish the jury to disregard the conduct. (People v. Brown (2003) 31 Cal.4th 518, 553.) The purpose of the waiver rule is remedial in nature: It " `seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. . . . " (Ibid.) The requirement of an objection and request for admonishment is excused only if (1) objection would have been futile (ibid. ); (2) admonishment would not have cured the harm caused by the misconduct (People v. Sapp (2003) 31 Cal.4th 240, 279); or (3) an objection was made and overruled. (People v. Boyette (2002) 29 Cal.4th 381, 432.)
Initially, we conclude that these arguments have been waived. At trial, defendant neither objected to the purported misconduct, nor did he request an admonition. Because there is no reason to think that an objection would have been futile or that an admonishment would not have cured the harm, the failure to object and request an admonishment constituted a waiver. (People v. Brown, supra, 31 Cal.4th at p. 553.)
Further, the arguments fail on their merits. We find nothing improper in the prosecutors cross-examination of Gooden. Defendant relies on U.S. v. Schuler (9th Cir. 1987) 813 F.2d 978, in which the prosecutor, in closing argument, referred to the defendants laughter during a portion of the testimony. As the court noted, the defendants laughter was not relevant to the merits of the charges for which he was being prosecuted. Rather, the reference was an attempt to use the defendants character—the fact that he did not take the charges seriously—to prove his guilt. (Id. at p. 980.) In addition, the prosecutors comment constituted a reference to matters outside the evidence, since there had been no testimony about the defendants laughter during the evidentiary portion of the trial. (Ibid.)
The prosecutors questions about conversations between defendant and Gooden did not suffer from either of these defects. First, the questions were relevant. Under the prosecutions theory, the two men who broke into Perrys garage were working together and therefore were presumably acquainted. Gooden testified that he did not know defendant, which supported an inference that, even if defendant had broken into the garage, Gooden had nothing to do with it. The prosecutors questions were intended to refute this testimony by demonstrating that Gooden and defendant behaved as though they knew each other. Second, the questions were, by definition, not a reference to matters outside the evidence presented at trial. On the contrary, like all cross-examination, the questions were an attempt to introduce evidence into the record. The mere fact that the some of the prosecutors questions concerned events that occurred outside the courtroom did not make the responses "outside the evidence."
Defendant also contends that these questions somehow constituted a comment on his failure to testify. Defendant argues that when the prosecutor asked whether defendant had talked to Gooden, she "suggested non-verbal testimony" from defendant because the question implied defendants silent admission that " `I knew Gooden before the burglary. " We know of no prohibition on questions suggesting that the defendant had engaged in incriminating nonverbal communication. Such questions are no more a comment on defendants failure to testify than any other question that leads to incriminating evidence to which a defendant does not respond. Further, defendants argument that these questions violated his right to silence because they put pressure on him to testify proves too much. Under such a theory, any evidence that could be refuted by a defendants testimony would be inadmissible. Given the limited scope of the questions and their relevance, we find no misconduct in the cross-examination.
Defendant also objects that these questions "cast the jurors in the role of witnesses," but he cites no authority suggesting this was improper. To the extent the questions referred to Goodens conduct in the courtroom, the questions permitted Gooden to explain his conduct. Given the limited scope of the questions, and the fact that the prosecutor did not inquire into the content of the conversations, we find no misconduct.
Nor do we find any misconduct in the prosecutors comment during rebuttal argument. A prosecutor is not permitted to comment, directly or indirectly, on a defendants failure to testify at trial. (People v. Medina (1995) 11 Cal.4th 694, 755.) The prosecutor may, however, "comment on the state of the evidence, including the failure of defendant to introduce material evidence or to call witnesses." (People v. Mincey (1992) 2 Cal.4th 408, 446.)
The prosecutors reference to "the best that they can come up with," was, in context, not a reference to defendants failure to testify but to his attorneys failure to point out significant discrepancies in Perrys testimony. This is made clear by the prosecutors introduction of the topic, when she noted that defense counsel had said Perry was not "a truth-teller." The prosecutor then noted that defense counsel could come up with no discrepancies in Perrys three statements other than a mismatch in the color of defendants pants and bike. The intended meaning of the argument is made clear by the prosecutors last statement on the subject, "Those are the discrepancies that hes coming up with," referring to defense counsel. The mere fact that defendant might have been able to supply additional discrepancies does not convert the prosecutors argument into a comment on defendants silence. (See, e.g., People v. Cleveland (2004) 32 Cal.4th 704, 764 [prosecutors comment that the defendant had not made any excuses for his conduct not a comment on his silence, since testimony about excuses could have come from a variety of witnesses]; People v. Brown, supra, 31 Cal.4th at p. 554 [prosecutors argument that the defendant had not presented evidence he was elsewhere at the time of the crime not a comment on silence but on the failure to introduce material evidence].) We find no reasonable likelihood that the prosecutors comment could have been understood, in context, to refer to defendants failure to testify.
C. Sentencing
Defendant contends that the trial court committed error under Cunningham v. California (2007) ___ U.S. ___ (Cunningham) when it relied on facts not found by the jury in imposing the middle sentencing term and refusing to impose the mitigated sentencing term or grant probation.
In making this argument, defendant simply misunderstands Cunningham. Blakely v. Washington (2004) 542 U.S. 296, 303-304 (Blakely), which preceded Cunningham, extended the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) that a defendants constitutional right to a jury is violated when a judge makes a factual finding relevant to sentencing and "impose[s] a sentence greater than the maximum he could have imposed under state law without the challenged factual finding." (Blakely, at p. 303.) In Blakely, the court defined "the `statutory maximum for Apprendi purposes" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant `statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Id. at pp. 303-304.)
In Cunningham, the United States Supreme Court overruled a decision of our own Supreme Court, People v. Black (2005) 35 Cal.4th 1238, holding that Blakely does not apply to the California determinate sentencing law. In doing so, the Cunningham court held, "In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] . . . Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the [California determinate sentencing law] violates Apprendis bright-line rule: Except for a prior conviction, `any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.]" (Cunningham, supra, 127 S.Ct. at p. 868.)
Accordingly, Blakely and Cunningham do not absolutely proscribe the trial courts reliance on facts not found by the jury in imposing sentence. Rather, they proscribe reliance on such facts in imposing "a sentence greater than the maximum [the judge] could have imposed under state law without the challenged factual finding." (Blakely, supra, 542 U.S. at p. 303, italics added.) As Cunningham held, the statutory maximum sentence in Californias determinate sentencing law is the middle term. (Cunningham, supra, 127 S.Ct. at p. 868.) Accordingly, the trial judge committed no Cunningham error when sentencing defendant to the middle term, even if the judge relied on facts not found by the jury in deciding to reject imposition of the mitigated term or a grant of probation.
Defendant also argues that the trial court committed Cunningham error when it relied on facts not found by the jury in doubling defendants base sentence under the "Three Strikes" law and adding a statutory enhancement. The only factual findings relevant to these sentence enhancements, however, were defendants prior convictions. Defendant was informed of his right to have a jury decide this issue, and he waived that right. Accordingly, the trial court could not have violated defendants constitutional rights when it relied on its own finding of the prior convictions in imposing sentencing enhancements based on that finding.
III. DISPOSITION
The judgment is affirmed.
We concur:
Stein, Acting P.J.
Swager, J.