Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA024499, Keith D. Davis, Judge.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant Louis A. Alarcon was convicted of one count of first degree murder. He contends that the court made a number of instructional and evidentiary errors. He also contends that the court’s failure to conduct a Marsden hearing upon his request for the appointment of counsel to assist him in filing a motion for new trial based in part on ineffective assistance of trial counsel was reversible error. In the alternative, he contends that the court abused its discretion in denying his motion to represent himself in a new trial motion and for a continuance to permit him to prepare the motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We agree that the court erred by denying defendant’s request for counsel or to represent himself in a motion for new trial without conducting an adequate hearing. Because defendant’s other contentions are without merit, we will remand for the limited purpose of having the court conduct a hearing to determine whether counsel should be appointed to represent defendant in a motion for new trial or whether defendant should be permitted to represent himself in preparing a motion for new trial.
PROCEDURAL HISTORY
Defendant was convicted by jury of the first degree murder of Betty Avanell Jones (count 1) and of possession of a firearm by a felon (count 2). (Pen. Code, §§ 187, subd. (a), 12021, subd. (a)(1).) The jury also found true the following allegations as to count 1: defendant personally and intentionally discharged a handgun which proximately caused great bodily injury and death to the victim (§ 12022.53, subd. (d)); defendant personally and intentionally discharged a handgun (§ 12022.53, subd. (c)); defendant personally used a handgun (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).
All statutory citations refer to the Penal Code unless another code is specified.
In a bifurcated proceeding, the court found that defendant had served three prior prison terms (§ 667.5, subd. (b)) and that he committed the current offense while released from custody on bail (§ 12022.1).
The court sentenced defendant to a term of 55 years to life in prison. Defendant filed a timely notice of appeal.
FACTS
Betty Avanell Jones, called Avanell by her family, lived with her husband James on a property on Redwood Avenue in Fontana which included three small houses and a garage. The Joneses lived in the front house, on the north side of the property. Randy Scott lived in the house behind theirs, and Scott’s great-grandmother lived in the third house. Michael Murphy lived in a loft in the garage.
On March 12, 2005, defendant was at the Redwood property socializing with Scott, Murphy, James Lightner and Chris Stewart. Defendant and Lightner got into an argument and then into a physical altercation involving pushing and punching. Defendant cornered Lightner with a tire iron in his hand but did not strike him with it. Stewart left and called 911 from a friend’s house. He wanted the police to break up the fight so that no one got hurt.
Some time later, perhaps as much as an hour later, defendant sat in Scott’s car, which was parked in the driveway, playing loud music. Avanell Jones came out of her house and yelled at defendant to turn it down. Defendant did not respond and did not turn the music down. Murphy told her to go back inside and “not mess with it” because of the prior altercation.
After Jones returned to her house, Deputy Jolin of the San Bernardino County Sheriff’s Department arrived in response, apparently, to the call about the altercation. (He stated that he was dispatched in response to a report of a “[s]ubject gone crazy... [a]llegedly taking hostages, threatening people.”) He found defendant standing in the driveway, holding a large rock in his hand. Defendant dropped the rock and ran. Jolin and other deputies pursued him and eventually found him hiding in the middle house on the property. Defendant was placed under arrest.
Several days later, apparently after being released on bail, defendant asked Scott if he had called the police on him. Scott said that he did not know who made the call. After that, Scott avoided defendant because he seemed very upset about the 911 call. Defendant also asked Stewart and Lightner if either of them had made the call. He told Lightner that he was going to kill whoever had made the call.
On May 15, 2005, the Jones family had a birthday party on their patio. Defendant walked up to the gate and spoke to Avanell Jones. He was looking for Scott. Jones told defendant that Scott was not there and that he would have to leave. They argued and defendant did not leave. Other Jones family members told defendant that Scott was not there. James Jones approached and asked what the problem was. Defendant told him not to “make things worse than they already are.” James Jones said he was going to go inside and “take care of this.” He walked toward the house to get his cell phone.
Defendant had a gun in his pants pocket. As James Jones was walking toward the house, defendant fired the gun without removing it from his pocket. The bullet hit the ground. He removed the gun from his pocket and fired it toward the house, hitting Avanell Jones in the back and fatally wounding her.
Defendant fled. He was apprehended a few days later.
Testifying in his defense, defendant stated that he was a chronic user of methamphetamine and that he had been using the drug for several days before the shooting and had not been sleeping. He testified that he knew that it was Stewart and not Jones who called the police during the March 12 incident and that he did not go to her house with the intention of killing her. He had been “paranoid” since being shot early in 2005 and had begun carrying a gun for protection. He did not intentionally fire the shot while the gun was in his pocket. After he accidentally fired the gun, he saw Rick Howard, one of the Joneses’ guests, coming out of the house with what appeared to him to be a gun in his hand. Believing that he was about to be shot, he pointed the gun in Howard’s direction and fired. At that moment, Avanell Jones, who had been leaning over, stood up and put herself into the bullet’s path.
Defendant testified that he was not wearing his prescription glasses and that he could not see Howard clearly. He also presented expert evidence that he was in a paranoid state as a result of his use of methamphetamine.
LEGAL ANALYSIS
THE COURT DID NOT ERR IN OMITTING JURY INSTRUCTIONS CONCERNING ACCIDENTAL, EXCUSABLE HOMICIDE, HEAT-OF-PASSION VOLUNTARY MANSLAUGHTER AND INVOLUNTARY MANSLAUGHTER
The court instructed the jury on first and second degree murder, on the effect of provocation on the degree of murder, on self-defense and on imperfect self-defense voluntary manslaughter. Defendant also requested an instruction on excusable accidental homicide and on involuntary manslaughter. The court refused both instructions. On appeal, he contends that both instructions were warranted by the evidence and that their omission was reversible error. He also contends that the evidence warranted an instruction on heat-of-passion voluntary manslaughter and that the omission of that instruction was reversible error as well.
In a criminal trial, the court must, on the request of the defendant, instruct the jury on any defense if there is substantial evidence to support that defense. (People v. Panah (2005) 35 Cal.4th 395, 484.) With or without a request, the court must instruct on any lesser included offense if there is substantial evidence from which a trier of fact could reasonably conclude that the defendant is guilty of the lesser offense but not of the greater offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
We review independently the question whether the trial court erred in failing to instruct on defenses and lesser included offenses. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) This includes the question whether there was substantial evidence to support the omitted instruction. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
Accidental Homicide
If a homicide is committed by “accident and misfortune” (§ 195), the act is not criminal because the defendant acted “without forming the mental state necessary to make his or her actions a crime.” (People v. Lara (1996) 44 Cal.App.4th 102, 110.) CALCRIM No. 510 provides in its entirety: “The defendant is not guilty of (murder/[or] manslaughter) if (he/she) killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if: [¶] 1. The defendant was doing a lawful act in a lawful way; [¶] 2. The defendant was acting with usual and ordinary caution; [¶] AND [¶] 3. The defendant was acting without any unlawful intent. [¶] A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/[or] manslaughter).”
Citations to “CALCRIM” refer to the Judicial Council of California Criminal Jury Instructions.
Defendant contends that the jury could have found that the shooting of Jones was an accident because “there was evidence that [he] did not intend to shoot Jones, was in an agitated state, and fired his gun in response to a perceived threat by Rick [Howard, the person defendant believed had a gun] and James [Jones].”
Under the doctrine of transferred intent, self-defense may apply where the defendant intends to injure or kill the person who poses the threat but inadvertently kills an innocent bystander instead. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1357; People v. Mathews (1979) 91 Cal.App.3d 1018, 1023-1024.) Accordingly, if defendant was justified in shooting Howard as a matter of self-defense, the shooting of Jones could be deemed an accident, if the jury found that it was the unintended result of a lawful act. The omission of an instruction such as CALCRIM No. 510, even if warranted by the evidence, was not prejudicial, however. The omission of an instruction is not prejudicial where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Flood (1998) 18 Cal.4th 470, 484 (Flood).) Here, the jury was instructed both that a defendant “is not guilty of murder or voluntary manslaughter if he was justified in killing someone in self-defense,” and that “[i]f the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed.” (CALCRIM Nos. 505 & 562.) Thus, the jury was instructed that defendant was not guilty of the murder or manslaughter of Jones if it found that he acted in true self-defense in response to the threat from Howard. It was also instructed that he was guilty only of voluntary manslaughter if he actually but unreasonably believed he needed to act in self-defense. (CALCRIM No. 571.) By finding that defendant committed first degree murder, the jury necessarily rejected any claim that defendant shot in response to an actual or perceived threat of death or great bodily injury, and thus determined that the killing was not “accidental” under the scenario described by defendant. Accordingly, even if an instruction on accident was supported by the evidence, defendant suffered no prejudice from its omission. (Flood,at p. 484.)
Heat-of-Passion Voluntary Manslaughter
Defendant contends that the court should have instructed on voluntary manslaughter based on heat of passion because the evidence supported the conclusion that he shot reflexively, “from passion rather than calculated judgment,” in response to the provocation of seeing James Jones going into the house, possibly to retrieve a weapon, and seeing Rick Howard come out of the house with what defendant thought was a gun. Again, however, the question of provocation was necessarily resolved adversely to defendant under other, properly given instructions. (Flood, supra, 18 Cal.4th at p. 484.) The jury was instructed that provocation can reduce a murder from first degree to second degree and may reduce a murder to manslaughter. (CALCRIM No. 522.) Nevertheless, the jury convicted defendant of first degree murder. It therefore necessarily rejected any contention that defendant acted under provocation.
There was also no substantial evidence that defendant acted out of a heat of passion. For purposes of voluntary manslaughter, “heat of passion” refers to provocation of the kind and degree that would cause “an ordinarily reasonable person to act rashly and without deliberation.” (People v. Cruz (2008) 44 Cal.4th 636, 664.) Here, the supposed provocation consisted of James Jones going into the house, saying he was going to “take care of this,” and Rick Howard coming out of the house carrying something that defendant perceived to be a gun. This version of events does not amount to conduct which would cause an ordinary person to act out of heat of passion; rather, it constitutes at most imperfect self-defense, i.e., the actual but unreasonable belief that one is in imminent peril of death or great bodily injury. The jury was instructed on that theory, and rejected it.
For this reason, we also reject defendant’s contention that the court was required to instruct that the prosecution bore the burden of proving that defendant did not act in the heat of passion.
Involuntary Manslaughter
Finally, defendant contends that the omission of an instruction on involuntary manslaughter was error.
Involuntary manslaughter is a killing committed “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Defendant contends that the jury could have concluded that his “conduct in defending himself with a gun while in a paranoid state and without his glasses was not unlawful although it was without due caution and circumspection as to the consequences.” Again, this theory depends upon the jury finding that he acted in self-defense or, arguably, in imperfect self-defense, i.e., the actual but unreasonable belief that he was in imminent peril of death or great bodily harm. (See CALCRIM No. 571.) The jury was instructed on both theories and rejected them. Thus, any error in the omission of an instruction on involuntary manslaughter was not prejudicial. (Flood, supra, 18 Cal.4th at p. 484.)
Defendant also contends that an instruction on involuntary manslaughter was warranted because the jury could have found that the killing occurred while he brandished a firearm, a misdemeanor. (§§ 192, subd. (b), 417.) There is no evidence that defendant merely “brandished” a firearm, however. On the contrary, his testimony made it clear that he intentionally fired at Howard, believing he was in imminent peril. Accordingly, there was no evidentiary support for the involuntary manslaughter instruction on this theory.
EVIDENCE THAT DEFENDANT BROUGHT RAZOR BLADES TO COURT WAS ADMISSIBLE
Defendant contends that the court erred by admitting irrelevant evidence concerning an incident in which a packet of razor blades was confiscated from him while he was being transported to court.
The issue arose as follows. While defendant was being transported to court during the trial, a deputy confiscated a packet containing four razor blades which was found on defendant’s person. When defendant testified, the prosecutor asked him whether he had told Dr. Kania, the psychologist who testified for the defense, that he wanted to bring a razor to court. Defendant explained that he had not told Dr. Kania that he wanted to bring a razor but that he got caught with razor blades someone had put on the bus for him. He explained that although razors are contraband, inmates smuggle them in because they have to share electric razors with 32 inmates, and the electric razors don’t hold a sufficient charge. He testified that his write-up said he had two razors, but that he did not know how many he had. The packet was wrapped in cellophane and he did not know how many razors it contained.
Defense counsel did not object. However, out of the presence of the jury, counsel made a record that he had previously objected to the admissibility of that evidence. The court stated that it had concluded the incident with the razors was relevant to defendant’s credibility and that it had ruled that evidence of that incident would be admissible to impeach his credibility if he chose to testify.
Subsequently, defense counsel asked Dr. Kania what defendant had told him about the razors. Dr. Kania testified that defendant had told him that he had been caught with “a” razor. Defendant told him that he was upset because people were implying that he intended to harm someone, but he intended only to use it to shave. Counsel asked whether defendant “went into detail” about the number of razors. Dr. Kania said that the number of razors was not of interest to him and that he did not go into the razor incident in great detail. On cross-examination, Dr. Kania testified that it was his impression, from what defendant told him, that he had only one razor. He testified that he was not concerned with the number of razor blades because, whether it was one razor or four, what struck him about it was that it was odd behavior, “trying to get razors in or out of jail, it’s still contraband and most people know that.” In her closing argument, the prosecutor cited the razor incident only as it reflected on defendant’s credibility, saying that he lied about the number of razor blades and about his intention to use them for shaving.
Defendant’s contention that the evidence is irrelevant is insupportable. Evidence is relevant with respect to a witness’s credibility if it has a tendency in reason to prove or disprove the truthfulness of the witness’s testimony. (Evid. Code, § 780.) The focus of the prosecutor’s questioning was not the incident itself, but rather what defendant told Dr. Kania about it, i.e., whether he lied about having only a single razor blade. A witness’s untruthfulness, even about matters collateral to the issues in the action, may be relevant to the witness’s credibility. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) It was within the trial court’s discretion to determine that this evidence was admissible, if defendant testified, because it was relevant to defendant’s credibility. (Ibid.) The record does not reflect that the defense objected to the evidence on any other ground. Accordingly, defendant has not demonstrated any error in the admission of the evidence.
DEFENDANT DID NOT REQUEST A LIMITING INSTRUCTION CONCERNING THE USE OF THE MARCH 12 INCIDENT
Before trial, defendant sought to exclude the evidence of the incident which occurred on March 12, 2005, which led to his arrest. The prosecution asserted that the motive for the homicide was defendant’s belief that Jones was the person who called 911 to report the fight on March 12. The defense asserted that there was no evidence that defendant attributed the call and his subsequent arrest to Jones. The trial court ruled the evidence admissible to prove motive. The court stated that the evidence would not be too confusing to the jury because a limiting instruction could be given, instructing the jury that the incident, which included fighting and the use of a weapon, could not be construed as “some habit that [defendant] had or some prior act that [defendant] had engaged in or anything else.” As far as the record shows, defense counsel did not request a limiting instruction specifically referring to the limited use of the March 12 incident. Rather, the only limiting instruction requested or given was CALCRIM No. 303, which states, “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
The clerk’s transcript does not include any instructions which were requested but refused, and nothing in the reporter’s transcript indicates that defense counsel requested such an instruction.
Defendant now contends that counsel presumably did not request a specific limiting instruction because he relied on the court’s “stated intention” to give such an instruction. He contends the court’s failure to give the promised instruction was prejudicial error. We disagree.
Except under circumstances which do not apply in this case, a trial court has no duty to give a limiting instruction on the use of prior bad acts sua sponte, and such an instruction is deemed waived unless requested. (People v. Rogers (2006) 39 Cal.4th 826, 864; People v. Collie (1981) 30 Cal.3d 43, 64.) The trial court’s statement that any potential confusion to the jury could be alleviated by the use of a limiting instruction did not relieve the defense of the obligation to request a more specific instruction than CALCRIM No. 303, if such an instruction was desired. Accordingly, the court did not err in failing to give the instruction defendant now contends was required.
THE COURT’S FAILURE TO CONDUCT A HEARING ON DEFENDANT’S REQUEST FOR COUNSEL TO REPRESENT HIM IN A NEW TRIAL MOTION REQUIRES REVERSAL
At the sentencing hearing, before the court imposed sentence, defendant asked for a continuance. He informed the court that his attorney had “abandoned” him at the sentencing phase. He said that he had asked his attorney to file a motion for new trial but that the attorney did not want to do so. He asked the court for a continuance so that he could get the trial transcripts for the purpose of filing a new trial motion. He asked for pro. per. status or for appointed counsel. He stated that he had “ineffective assistance of counsel issues... prosecutorial misconduct issues and due process issues.” Without any further inquiry or hearing, the court denied defendant’s request for a continuance, denied his request for a new attorney, and denied his request for transcripts. The court informed defendant that he was free to seek appellate review of the verdict and “any order and findings made by the court before and after that verdict.”
Defendant now contends that the court erred in denying him a Marsden hearing (Marsden, supra, 2 Cal.3d 118), in denying his request to represent himself and in denying his request for a continuance to file his new trial motion. The Attorney General concedes that the court erred in failing to conduct a Marsden hearing. He agrees that we should reverse and remand the matter to the trial court for a Marsden hearing. He contends that defendant’s motion for pro. per. status was untimely, and that his motion for a continuance to prepare a new trial motion was properly denied because it was not timely.
We agree that a limited remand is necessary. In Marsden, the California Supreme Court held that when a criminal defendant complains about the adequacy of his trial attorney, the court must allow the defendant to articulate the causes of his dissatisfaction, and “if any of them suggest[s] ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance.” (People v. Eastman (2007) 146 Cal.App.4th 688, 695; see Marsden, supra, 2 Cal.3d at pp. 123-125 .) Marsden itself applies to complaints about attorney competence made before trial. (People v. Smith (1993) 6 Cal.4th 684, 691 (Smith).) In People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart) (disapproved on other grounds in Smith, supra, as discussed below), the court for the first time applied Marsden to posttrial proceedings. In that case, the court held that when a defendant informs the court that he has instructed his trial attorney to file a motion for new trial on the basis of incompetence of counsel, that is sufficient to trigger the court’s duty to conduct a hearing to elicit the reasons the defendant believes he was inadequately represented. If the alleged incompetence relates to events occurring at trial, the trial court can determine if the defendant’s claim has merit, and may rule on the new trial motion without appointing counsel to assist in the motion. If the claim of inadequate representation relates to something that did not occur “within ‘the four corners of the courtroom’ (Marsden, supra, 2 Cal.3d at p. 123) or which cannot fairly be evaluated by what did occur at trial, then, in the sound exercise of its discretion, the court may appoint new counsel to better develop and explain the defendant’s assertion of inadequate representation.” (Stewart,at p. 396.)
In Smith, supra, 6 Cal.4th 684, the California Supreme Court affirmed that a trial court should appoint substitute counsel when a proper showing has been made at any stage of the proceedings, and it affirmed the holding of Stewart, supra, 171 Cal.App.3d 388. (Smith, at pp. 690-695.) It disagreed with Stewart only to the extent that Stewart appeared to suggest that the defendant has a lesser burden to demonstrate the need for substitute counsel for purposes of preparing a new trial motion. The court reiterated that the standard enunciated in Marsden applies at all points in the proceedings. That standard, as enunciated in Smith, is that new counsel should be appointed “whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Smith, at p. 696.)
Here, although defendant clearly stated that he wanted to file a motion for new trial based in part, at least, on the assertion that his trial attorney had not provided effective assistance, he did not unambiguously ask for new counsel. Rather, he asked for transcripts to enable him to prepare the motion on his own, or for appointment of counsel to assist him. Both a Marsden request and a request for self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta) must be unequivocal. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7 (Rivers).) If a defendant makes an alternative request for the appointment of new counsel or to file a motion for new trial in pro. per., the trial court must conduct a sufficient inquiry to determine which alternative the defendant wishes to pursue. (Ibid.) The decision to grant or deny a posttrial Faretta motion lies within the discretion of the trial court. (Rivers, at p. 1050.) The court cannot, of course, exercise its discretion under Faretta if it fails to conduct at least a sufficient inquiry to determine whether self-representation is actually what the defendant is seeking and if so, to determine whether to grant the request. Accordingly, it was incumbent on the trial court to conduct a sufficient inquiry to determine, first, whether defendant wanted to represent himself or wanted substitute counsel, and then to conduct a hearing appropriate to his specific request. We will reverse defendant’s conviction and remand with directions to the trial court to determine whether defendant wanted to proceed in pro. per. or to have new counsel appointed to represent him in a motion for new trial, and then to conduct an appropriate hearing on the Marsden or Faretta motion, as set forth in Smith, supra, 6 Cal.4th 684, Stewart, supra, 171 Cal.App.3d 388, and Rivers, supra, 20 Cal.App.4th 1040.
We reject any contention by the Attorney General that the request for new counsel or for a continuance to prepare a new trial motion in pro. per. was not timely. Defendant stated that he asked his attorney to file a new trial motion and that counsel had refused. Because defendant was represented by counsel, the court would not have accepted a motion for new trial filed in pro. per., and defendant had no earlier opportunity to ask the court for new counsel.
DISPOSITION
The judgment is reversed and the cause is remanded with the following directions:
The court shall hold a hearing to determine, first, whether defendant is seeking new counsel or to represent himself for the purpose of filing a motion for new trial. If the court determines that defendant is seeking appointment of new counsel, it shall conduct a hearing as set forth in Stewart, supra, 171 Cal.App.3d 388, and Smith, supra, 6 Cal.4th 684. If the court determines that new counsel should be appointed, the court shall appoint counsel and shall afford a reasonable time for preparation of a new trial motion. If the court denies the motion for new counsel, or if newly appointed counsel does not file a new trial motion or the motion is denied, the court shall reinstate the judgment.
In the alternative, if the court determines that defendant is seeking to represent himself, the court shall hold a hearing pursuant to Faretta, supra, 422 U.S. 806, and Rivers, supra, 20 Cal.App.4th 1040, to determine whether defendant should be permitted to represent himself in a motion for new trial. If the court grants the Faretta motion, the court shall afford defendant a reasonable time in which to file his motion for new trial. If the court denies the motion for self-representation, or if it grants the motion for self-representation but denies the new trial motion, the court shall reinstate the judgment.
We concur: Hollenhorst Acting P.J., Richli J.