Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA062554 Elden S. Fox, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD J.
INTRODUCTION
Lovine Briggs (appellant), age 41, contacted the victim over the Internet by means of a posting on craigslist suggesting that he was 18 years of age and would engage in sex for money. The victim agreed by e-mail to a sexual encounter, and appellant’s codefendant, then a 17-year-old boy, met the victim at his residence and then surreptitiously opened the door of the residence for appellant. Appellant and the codefendant held the victim at gunpoint and robbed him. When the victim attempted to escape, the codefendant repeatedly hit the victim with a baseball bat on the head, shoulders and ribs, and the victim almost died.
THE CONVICTIONS
Appellant appeals from the judgment entered following a jury trial resulting in his convictions of first degree robbery and false imprisonment by violence (Pen. Code, §§ 211, 236), with findings that a principal was armed with and personally used a firearm during the commission of the offenses. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (b).) He admitted that he had a prior felony conviction of voluntary manslaughter that required the imposition of a five-year enhancement and sentencing pursuant to the “Three Strikes” law. (§§ 667, 1170.12.) At sentencing, he made a motion to strike the prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), which was denied. The trial court sentenced appellant to an aggregate term of 23 years in state prison, consisting of a doubled middle term of four years, or eight years, for the robbery, enhanced by a 10-year term for the personal use of a firearm and by a five-year term for the prior serious felony conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
THE CONTENTIONS
Appellant contends that: (1) the trial court abused its discretion when it denied his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) the evidence is insufficient to support his convictions of home invasion robbery and false imprisonment by violence; (3) it was error to charge the jury as to aiding and abetting; and (4) the trial court abused its discretion when it denied his Romero motion.
FACTS
James Curtis (Curtis) lived in West Hollywood. On July 30, 2006, he was corresponding on the Internet with a person who had the e-mail address Elijah101@aol.com. He had located his correspondent in the men-for-men section of craigslist, and the youth claimed that he was 18 years old. The content of the posting implied an interest in sex for money, but Curtis denied that he had any intention of paying for sex. That night, Curtis invited his correspondent to his residence for a sexual encounter. At about 3:30 a.m., codefendant Sherman Jackson (Jackson) arrived at his front door.
Codefendant Jackson has an appeal pending in this court, People v. Jackson, B205665.
Curtis let Jackson in, and they had a short conversation in the living room. Jackson asked Curtis to turn down the air conditioning. When Curtis returned to the living room, Jackson pointed a semiautomatic pistol at him, demanded his money, and directed Curtis to disrobe. Curtis gave Jackson the money in his pants pocket, and they entered the kitchen where Jackson thumbed through Curtis’s wallet. Appellant entered the residence through the front door carrying a baseball bat. Appellant and Jackson insisted that Curtis had more money and demanded it. They took turns holding Curtis in the dining room at gunpoint and ransacking Curtis’s bedrooms looking for more money and valuables. In the bedrooms, they found mace, a condom, and some loose change that Curtis had stored in several shoe boxes. Appellant and Jackson threatened Curtis’s life.
It was cold in the dining room, and Curtis asked to move into the living room. Seated on the sofa, Curtis noticed that the front door was ajar and attempted an escape by grabbing the baseball bat in Jackson’s hands. Jackson pulled the baseball bat from Curtis’s grip and repeatedly used it to beat Curtis over the head and body. With the bat, Jackson hit Curtis in the ribs, fractured his skull and ear, took off part of his ear, and permanently damaged his hearing. Curtis fell to the floor. He was bleeding severely and pretended to be dead. His assailants walked out the front door, and Curtis telephoned 911. Curtis almost died as a result of the attack.
A neighbor testified that at 3:30 a.m. that night, he was out walking his dog. He saw a man matching appellant’s description standing on the corner at the end of the block. About a half hour later, the neighbor heard crashing sounds and from his residence, looked across the street. The neighbor heard someone say something like “Get out. Get out” and saw the same man and a shorter man with a baseball bat walk out the front door of Curtis’s residence.
Curtis testified that the assailants took his driver’s license, the cash in his pocket and wallet, his mace, a condom, and the loose change he had stored in several shoe boxes. A crime technician found four latent fingerprints belonging to Jackson on the lid of one of the empty shoe boxes. Outside Curtis’s front door on the ground, Los Angeles County Sheriff’s Detective Larry Alva (Detective Alva) found a cigarette butt that tested positive for appellant’s and Curtis’s DNA. In September 2006 a Culver City Police Officer searched appellant’s rented Monte Carlo vehicle. In its console, the officer found the semiautomatic pistol used during the robbery. The pistol was registered to appellant’s great aunt and had been reported stolen after an April 2006 burglary that occurred shortly after appellant and Jackson had moved out of her residence.
At trial, Curtis was impeached with a number of prior inconsistent statements he had made concerning the events of the robbery.
Appellant and Jackson declined to testify in defense. Jackson called a medical social worker and appellant called the treating physician to impeach Curtis with further conflicting statements concerning the events of the robbery. Appellant and Jackson introduced into evidence a number of photographs of the crime scene and unrelated e-mails concerning sexual solicitations that Detective Alva had found on Curtis’s desk after the robbery.
DISCUSSION
I. The Marsden Motion
Appellant contends that the record shows that appellant and his trial counsel were embroiled in an irreconcilable conflict that was likely to substantially impair appellant’s representation. Further, if the record fails to show an irreconcilable conflict, the trial court abused its discretion by refusing to permit appellant to raise complaints concerning his feelings about trial counsel and their bickering.
A. Background
On the second day of voir dire, appellant had trial counsel inform the trial court that appellant was contemplating self-representation. The trial court made an inquiry on this point out of the presence of the prosecutor. Appellant indicated that he was making the request because trial counsel had apparently told him that if appellant did not like trial counsel’s trial tactics, he could represent himself. The trial court advised appellant of the dangers and pitfalls of self-representation. These proceedings occurred immediately preceding a retrial, and the trial court assured appellant that trial counsel’s trial tactics thus far were “miraculous” as during the initial trial, only Jackson had suffered two convictions when many serious charges had been lodged against appellant and Jackson. The trial court discouraged appellant concerning self-representation and told him that he should cooperate with trial counsel and let trial counsel do the best he could for him again during retrial.
Appellant was convicted only upon retrial. The information charged appellant and Jackson with the following offenses: home invasion robbery (count 1); false imprisonment by violence (count 2); assault with a semiautomatic firearm (count 3); making criminal threats (count 4); attempted murder (count 5); and aggravated mayhem (count 6). Allegations of firearm and weapon-use enhancements and of a great bodily injury enhancement were included in the information, as well as prior-conviction allegations as to appellant only. Appellant and Jackson were tried in the same proceedings.
During this discussion, the trial court mentioned that it did not “want to get into the issues of attorney-client conflict.” Shortly thereafter, appellant asked, “What about planning for alternate counsel?” The trial court replied, “There is no more alternate counsel,” and it commented that appellant was being unrealistic in thinking that any other criminal attorney could get ready to try this complex case during the eight hours before they commenced the witnesses’ testimony.
The trial court then asked appellant to state the reasons why he did not want his trial counsel to continue representing him. Appellant explained that he had concluded that his and Jackson’s trial counsel were afraid of the trial court as at the initial trial, counsel had refused to recall Curtis for further impeachment. Counsel had told him and Jackson that they wanted to avoid upsetting the trial court. Appellant gave his own opinion that recalling Curtis would not have upset the trial court.
The trial court said that it was not quite sure of the context of the complaint. But it observed that based on the outcome in the initial trial, counsels’ trial tactics had only worked to appellant’s and Jackson’s benefit.
Appellant made another complaint that was incomprehensible: he said, “And that’s one of the problems based on the evidence that was presented.”
The trial court told appellant that it was not getting into issues such as whether appellant liked what trial counsel was saying to him, and vice versa. It told appellant that it would not substitute appointed trial counsel and urged appellant to cooperate with trial counsel in order to get the best results possible on retrial.
Appellant expressed some doubt as to whether he could cooperate with trial counsel. And the trial court said “Well, I don’t know either.”
Appellant volunteered that he was uncomfortable with trial counsel’s tactics for retrial. He told the trial court that while the defense had worked at the initial trial, appellant had a “gut feeling” that the defense would not work again and that he would be convicted of something he had not done.
At that juncture, the trial court advised appellant concerning the dangers of self-representation. Appellant asked to see the evidence against him. Further inquiry by the trial court revealed that appellant only wanted to see the crime scene photographs. The trial court granted the request. The trial court said, “Anything else?” Appellant replied, “Not that I can think of right now.” The hearing concluded.
That afternoon, before the jury, appellant disputed trial counsel’s announcement at the close of voir dire that the defense would accept the jury as presently constituted. The jury was sworn in. When the jury was excused, appellant said that based on the exchange he had had with his trial counsel before the jury, “we need to have a Marsden hearing.” The trial court replied that it would hear what appellant had to say the following day. It advised appellant that if he “really intend[ed] to proceed with it,” rather than engaging in brinksmanship, appellant should be “prepared to be your only lawyer tomorrow.”
The following morning, out of the presence of the prosecutor, the trial court inquired as what appellant’s desire or position was now. Appellant complained that trial counsel had accepted the jury when he and Jackson were not satisfied with the panel. And, appellant objected there was a “conflict of interest” because trial counsel had left the trial court’s first cousin on the jury.
Appellant explained that accepting the jury over appellant’s and Jackson’s objections meant that appellant had no choice but to proceed in propria persona (in pro. per.). Also, appellant claimed that trial counsel was now otherwise engaged and off his case, so he had no choice but to proceed in pro. per.
The trial court ascertained from trial counsel that counsel remained available to represent appellant. The trial court inquired that now that it was apparent that trial counsel could be available to try the case, was appellant merely complaining about the composition of the jury panel or was appellant making a claim about trial counsel’s professional capabilities. Appellant replied that he was not complaining of ineffectiveness. He was complaining that he wanted to have “some say” in how the defense was conducted. As he saw it, trial counsel “would like to try this case without me saying anything, doing anything, [or] being any part of it.” He said that his and Jackson’s trial counsel had not been present at Curtis’s residence, and only appellant would know whether there was anything damaging or helpful in the crime scene photographs. Plus, “there are things that are being presented to the jury that are complete and total lies.”
The trial court indicated that it failed to understand the complaint. Trial counsel interrupted and explained that appellant had a defense theory that could not be presented without appellant’s testimony, and appellant would not be testifying. Despite his decision not to testify, appellant wanted trial counsel to cross-examine Curtis to support this undisclosed theory of the defense. Trial counsel said that he believed that such questioning was useless. And trial counsel gave his opinion that as it was, Curtis’s testimony was so incredible that the jury would not convict.
Appellant made another complaint. He said that Jackson had never seen the e-mails. Trial counsel explained that appellant was asserting there was no direct evidence of Jackson’s guilt as the prosecutor had failed to show that Jackson was aware of the e-mails. Trial counsel had advised appellant that appellant’s point was inconsequential as the prosecution had Curtis’s testimony that Jackson had showed up at his front door, which was circumstantial evidence of knowledge.
The trial court interrupted appellant and trial counsel and told appellant that it was time to make the decision about proceeding in pro. per. Appellant replied that it did not matter and that he was being “railroaded.” The trial court asked whether appellant wanted qualified counsel to represent him, and appellant replied, “Yes.” When the trial court asked whether appellant wanted his trial counsel to represent him, appellant said several times, “Whatever.” When asked by his trial counsel to give a yes or no reply, appellant said, “I don’t care.”
At that point, the trial court deemed its record complete and terminated the hearing.
Trial counsel inquired whether the courtroom was wired for sound so that appellant could listen to the trial from the lockup. The trial court said that as far as it was aware, it was not. Trial counsel said that he was inquiring because he “honestly believe[d] that they were very close to a point where appellant would not be present” in the courtroom. Trial counsel complained that in that event, he would be trying the case without appellant’s assistance.
During final argument, trial counsel asked the jury to ignore any conflict they perceived between trial counsel and appellant as that was not the issue in the case.
B. The Relevant Legal Principles
“Under the Sixth Amendment right to assistance of counsel ‘“‘[a] defendant is entitled to [the substitution of new appointed counsel where] the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’”’ (People v. Memro (1995) 11 Cal.4th 786, 857.) Furthermore, ‘“‘[w]hen a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.’”’ [(People v. Roldan (2005) 35 Cal.4th 646, 681 (Roldan) disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).)] ‘We review the court’s rulings for an abuse of discretion.’ (Ibid.)” (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
“The court does not abuse its discretion in denying the motion [to substitute counsel] unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith); accord, Roldan, supra, 35 Cal.4th at p. 681; see also People v. Burton (1989) 48 Cal.3d 843, 855 (Burton).)
“‘By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics.’ [Citations.]” (In re Horton (1991) 54 Cal.3d 82, 95.) “A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ (People v. Carpenter (1997) 15 Cal.4th 312, 376.)” (People v. Welch, supra, 20 Cal.4th at pp. 728-729.)
“A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. [Citation.] Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. [Citation.]... ‘[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.’ [Citation.]” (Smith, supra, 30 Cal.4th at p. 606; accord, People v. Abilez (2007) 41 Cal.4th 472, 489 (Abilez).) The defendant is not entitled to claim that an irreconcilable conflict has arisen merely because of a disagreement with counsel over reasonable tactical decisions. (People v. Memro (1995) 11 Cal.4th 786, 858.) “A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 860.)
In ruling on a Marsden motion, the trial court may consider the following factors set out in the Ninth Circuit decisions, which are “‘consistent with California law’”: “‘“‘(1) [the] timeliness of the motion; (2) [the] adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense.’” [Citations.]’” (Abilez, supra, 41 Cal.4th at pp. 490-491.)
“‘“Conflicts of interest may arise in various factual settings. Broadly, they ‘embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.”’ [Citation.]” (Roldan, supra, 35 Cal.4th at p. 673.) “An actual conflict of interest means ‘a conflict that affected counsel’s performance—as opposed to a mere theoretical division of loyalties.’ (Mickens v. Taylor (2002) 535 U.S. 162, 171, italics omitted.)... To obtain a reversal for this type of error [under the federal Constitution], ‘the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance.’ [Citations.]” (Roldan, supra, at pp. 673-674; accord, Doolin, supra, 45 Cal.4th at pp. 420-422 & fn. 22; People v. Dunkle (2005) 36 Cal.4th 861, 914-915 (Dunkle), disapproved on another point in Doolin, supra.)
In Doolin, supra, 45 Cal.4th at pages 420 to 422, the court held that the federal test applies to a determination of the existence of a conflict of interest and prejudice, disapproving earlier decisions suggesting a separate state standard also applied. (Id. at p. 421, fn. 22.)
“‘“To determine whether counsel’s performance was ‘adversely affected,’ we have suggested that [Cuyler v.] Sullivan [(1980) 446 U.S. 335], requires an inquiry into whether counsel ‘pulled his punches,’ i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are... bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.”’ [Citations.]” (Dunkle, supra, 36 Cal.4th at p. 914.)
“In any circumstance in which defendant succeeds in demonstrating an actual conflict affected counsel’s performance, we... then address the prejudice prong of the federal standard, applying the standard under Strickland [v. Washington (1984) 466 U.S. 668, 694].” (People v. Doolin, supra, 45 Cal.4th at p. 422.)
C. The Analysis
1. Irreconcilable Differences
We need not address appellant’s Marsden contention. At the hearings, the trial court focused on the gist of appellant’s complaints, which were last-minute threats to request self-representation because appellant wanted to have more control over the tactics trial counsel planned to use during trial. The trial court’s inquiry about the adequacy of trial counsel was in conjunction with appellant’s Faretta request (Faretta v. California (1975) 422 U.S. 806), which required that the trial court consider among other factors “‘the quality of counsel’s representation of the defendant’” in exercising discretion about whether to grant the request. (People v. Hardy (1992) 2 Cal.4th 86, 195, quoting People v. Windham (1977) 19 Cal.3d 121, 128, accord, People v. Jenkins (2000) 22 Cal.4th 900, 959.)
“The trial court is not obliged to initiate a Marsden inquiry sua sponte. [Citation.] The 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.’ [Citations.]” (People v. Lara (2001) 86 Cal.App.4th 139, 150-151.) “[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel. The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted.) “[A] proper and formal legal motion” is not required, but the defendant must provide “at least some clear indication... that he wants a substitute attorney.” (Id. at p. 281, fn. 8.)
Here, at the initial hearing, appellant was exploring whether he could get any leverage over the trial court or his trial counsel by threatening to discharge his trial counsel and proceed in pro. per. Before the second hearing, he explicitly asked for a Marsden hearing, but when the trial court asked appellant whether he had any complaints about trial counsel’s professional representation, appellant frankly said, “No.” Nevertheless, the People address the contention without considering whether the hearings were true Marsden hearings, and we shall do the same.
Appellant argues that the record establishes that appellant and his trial counsel were embroiled in such an irreconcilable conflict that it was likely to result in ineffective representation. However, here, the trial court gave appellant and trial counsel an adequate opportunity to be heard on the Marsden issue. Appellant’s complaints amounted to a desire to have control over certain of the tactical decisions that trial counsel would be making at trial. A represented defendant has no right to a defense of his choosing, and “‘[t]actical disagreements between the defendant and his attorney do not by themselves constitute an “irreconcilable conflict.”’” (People v. Jackson (2009) 45 Cal.4th 662, 688; People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) Appellant does not claim, and the record fails to establish, that appellant’s attorney was incompetent or that he would have failed to provide adequate representation on retrial. To the contrary, appellant’s defense was apparently brilliant.
Appellant’s outburst before the jury, in which appellant contradicted trial counsel’s acceptance of the jury panel, and appellant’s threat to absent himself from the courtroom, were isolated incidents of an overt disagreement with trial counsel. The one outburst before the jury and the threat to absent himself from the courtroom, in combination with appellant’s struggle for control of counsels’ trial tactics, fail to support a finding that appellant and his trial counsel were so embroiled in a conflict that ineffective representation was likely to result. Nor do these incidents illustrate that communication between appellant and his trial counsel had become so poisoned that appellant was effectively denied his right to counsel. (Abilez, supra, 41 Cal.4th at p. 491.) Following these apparent disagreements, there were no others. After the jury had returned its verdicts, the record shows that appellant and his trial counsel were working as a team and conferring at appropriate times and that appellant and his trial counsel were not acting at odds with one another. It appears that the lack of cooperation which appellant posits as the basis for his contention was limited to the eve of the trial and was probably staged as appellant was playing a “‘Faretta game.’” (People v. Marshall (1997) 15 Cal.4th 1, 22.) He apparently hoped to set up a record for a per se reversal.
Trial counsel’s admonition to the jury during final argument to ignore any conflict the jury perceived between appellant and his trial counsel does not tend to show a pattern of disagreement between appellant and his trial counsel. It merely demonstrates that trial counsel was cognizant that the jury had observed the one outburst by appellant before the jury, and trial counsel wanted to ensure that the jury considered the evidence, and not appellant’s outburst, in evaluating guilt.
2. Inadequate Inquiry
In the alternative, appellant asserts that he is entitled to a reversal because the trial court (1) made an insufficient inquiry concerning appellant’s complaints about his trial counsel and (2) failed to appropriately question trial counsel concerning appellant’s complaints. This claim also will not result in a reversal.
“‘“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.]”’” (Abilez, supra, 41 Cal.4th at pp. 487-488.)
At each of the hearings, the trial court asked appellant about any complaints he had about trial counsel’s professional performance in the case. When the trial court did not understand appellant’s complaints, it said so and gave appellant an opportunity to explain. At several points during the hearings, appellant volunteered his complaints. There is no indication that the trial court cut off appellant without letting him voice all of his complaints. During the latter hearing, appellant acknowledged that his complaints did not concern professional failings, but appellant’s wish to have greater personal control over what was used in defense and cross-examination.
Insofar as appellant complains that the trial court evaluated his complaints without questioning trial counsel, here, such questioning was unnecessary. At the initial hearing, appellant’s complaints on their face constituted complaints concerning disagreements over trial tactics. At the latter hearing, trial counsel volunteered comments that explained appellants’ complaints and demonstrated that the complaints amounted to disagreements over trial tactics.
On appeal, appellant additionally urges that the trial court engaged in an incomplete Marsden inquiry because it advised appellant that the trial court did not want to “get into” issues of attorney-client conflict. That statement was made during a discussion of Faretta issues. Later, appellant volunteered without any interruption about how he felt about the probable conduct of the defense on retrial and said that he had a “gut feeling” that things would not be going well. Appellant also freely expressed his view that his trial counsel would like to try the case without having to grapple with appellant’s attempts to control the presentation of the defense. Appellant indicated his general lack of trust in his trial counsel’s skill and judgment in acting as trial counsel. These claims at the hearing revealed the nature of appellant’s difficulties in dealing with his trial counsel and failed to demonstrate a complete breakdown in the communication between appellant and trial counsel.
We note that our appellate record does not include the proceedings of the initial trial. The trial court may well have declined to elicit the details of any bickering between appellant and his counsel as it was familiar ground and the trial court had concluded that any difficulties between appellant and his trial counsel stemmed from appellant’s lack of trust in and his desire to override his trial counsel’s control of the defense.
II. Sufficiency of the Evidence
Appellant contends that the evidence is insufficient to support his convictions because the victim’s testimony was too conflicting and inconsistent to be reliable. The contention fails to persuade us.
In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see Jackson v. Virginia (1979) 443 U.S. 307, 319.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Appellant argues that the many inconsistent statements Curtis made to various persons concerning the events of the robbery and his various trial and preliminary hearing testimony cannot be said to be of solid value or to reasonably inspire confidence. Also, appellant asserts that Curtis’s versions of the events of the crimes “simply varied too dramatically to be considered reliable.”
Our review of the record shows no inherent improbability in Curtis’s testimony. And, nothing about the evidence shows that it would have been physically impossible for appellant and Jackson to have committed these crimes. There was no true dispute about Jackson’s identity as the person who beat Curtis, and no dispute concerning the severity of the beating Curtis suffered at Jackson’s hands. After the robbery, a neighbor saw two men of similar appearance to appellant and Jackson outside and walking away from Curtis’s front door with a baseball bat. Appellant’s and Curtis’s DNA on the cigarette butt found outside Curtis’s front door further corroborated appellant’s presence at Curtis’s residence. In the context of the other evidence, appellant’s presence at the scene suggests that the two men had used a craigslist posting to create the opportunity to commit a home invasion robbery. And it seemed likely that appellant, the leader, had masterminded the scheme.
Further, Curtis never wavered from assertions that he had invited a young man contacted on the Internet to his residence at 3:30 a.m. and that he had been robbed by two men at gunpoint, men whom he identified as appellant and Jackson. Curtis never claimed that anyone but Jackson had severely beaten him and that he had been held for a significant period of time in his dining room at gunpoint by appellant and Jackson. In most respects, the condition of the crime scene supported Curtis’s claims about how the crimes had occurred. Curtis’s severe concussion may have played a role in his inability to immediately recall the details of his ordeal. And, there is no requirement that a single witness’s testimony be corroborated. (People v. Young, supra, 34 Cal.4th at p. 1181.) It was up to the jury to determine witness credibility.
III. Jury Instructions
Appellant contends that the trial court erred when it instructed the jury with CALJIC Nos. 3.00 and 3.01, concerning aiding and abetting.
The theory underlying the prosecution was that appellant was the direct perpetrator of robbery and false imprisonment by violence, and he was not an aider and abettor. The prosecutor argued that appellant and Jackson used a prostitution ruse to gain entry into Curtis’s residence in order to commit robbery. Trial counsel argued that the primary trial issue was victim credibility. He urged that Curtis had invited the minor Jackson over for an act of prostitution, and Curtis had no intention of paying for that sex act. At trial, Curtis claimed that he had no money in the house when Jackson arrived to pay for an act of prostitution. Trial counsel urged that if that was what occurred, there was no robbery. Trial counsel argued that Curtis’s testimony was deliberately misleading as Curtis was a lawyer and covering up for soliciting a minor. And, the inconsistencies in Curtis’s testimony left him thoroughly impeached. If the jury found Curtis’s testimony to be incredible, there was no evidence that appellant ever entered the residence. Also, there was no evidence that anything was taken during the robbery, so there was no robbery.
Over appellant’s objection, the trial court charged the jury with CALJIC Nos. 3.00 and 3.01, as follows. “Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include those who directly and actively commit the act constituting the crime, or those who aid and abet the commission of the crime. A person aids and abets the commission of a crime when he, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing or encouraging or facilitating the commission of the crime and by act or advice aids, promotes, encourages, or instigates the commission of the crime.”
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047; see People v. Barton (1995) 12 Cal.4th 186, 194-195.) “Substantial evidence is evidence of reasonable, credible value.” (People v. Crew (2003) 31 Cal.4th 822, 835.) “It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton), citing People v. Eggers (1947) 30 Cal.2d 676, 687; accord, People v. Perez (2005) 35 Cal.4th 1219, 1227 (Perez).)
The contention lacks merit because substantial evidence supports the challenged jury instructions. The prosecutor may have been proceeding on a theory that appellant entered the residence and committed the crimes as a direct perpetrator. But part of appellant’s argument in defense was that Curtis could not be believed and that the corroborating evidence disclosed that appellant was only seen outside the residence. Assuming the jury believed that Curtis’s testimony was too flimsy to support Curtis’s claim appellant had entered the residence, reasonable inferences drawn from the trial evidence supported a theory that appellant, who was the older of the two men, had masterminded the robbery and despite his presence only outside the residence, appellant may have had the requisite intent for an aider and abettor. On appellants’ own theory of the case and the substantial evidence supporting that theory of the evidence, the trial court properly charged the jury as to aiding and abetting. Furthermore, the instruction on who was a principal in a crime aided the jury in determining whether a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
It is not the prosecutor’s argument that defines a trial court’s duty to give jury instructions, but the charges and the trial evidence supporting those charges.
The decision in Perez, supra, 35 Cal.4th 1219 is not on point. There, the prosecutor persuaded the trial court to give aiding and abetting instructions in the absence of proof of either a completed crime or an attempt by the other person purportedly involved in committing the crime. Without proof of a criminal act to which the defendant contributed, the prosecution could not convict the defendant as an aider and abettor. Thus, the defendant had to be convicted as a direct perpetrator or not at all, and aiding and abetting instructions were erroneous and prejudicial. (Id. at pp. 1226-1227, 1232.)
That is not the case here. In light of Curtis’s conflicting testimony, the trial court properly concluded that substantial evidence supported a theory of aiding and abetting and properly gave that instruction.
The decision in Guiton, supra, 4 Cal.4th 1116 also fails to assist appellant. That case did not address error concerning jury instructions on aiding and abetting. (Id. at p. 1121.) The decision’s possible relevance is limited to setting out the appropriate legal framework in which to determine prejudice. As there is no error, it is unnecessary to reach the issue of prejudice. (See Guiton, supra, at pp. 1121-1131.)
IV. The Romero Motion
Appellant contends that the trial court abused its discretion when it denied his Romero motion. The contention is meritless.
Section 1385, subdivision (a), permits a trial court on its own motion to strike prior felony conviction allegations in cases brought pursuant to the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 530.) “A court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse.” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
When a trial court considers a defendant’s motion to dismiss the allegation of a prior conviction pursuant to the Three Strikes law, it must ask “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” (People v. Carmony, supra, 33 Cal.4th at p. 377, citing People v. Williams (1998) 17 Cal.4th 148, 161.)
Before sentencing, the trial court considered the probation report and the prosecution sentencing memorandum, which recommended maximum sentencing and indicated that appellant had masterminded the robbery and involved the 17-year-old Jackson, a minor, in his scheme. The probation report also mentioned that appellant probably had encouraged Jackson to engage in a dissolute lifestyle. The probation report showed that appellant had the 1986 conviction for voluntary manslaughter and two recent convictions of unlawful possession of a firearm and receiving stolen property, which arose from the burglary of his aunt’s residence and possessing the aunt’s handgun after the instant robbery.
Trial counsel requested that appellant be sentenced as a first-time offender pursuant to Romero because of the 22-year age and remoteness of the voluntary manslaughter conviction. The trial court acknowledged in determining the remoteness of the conviction that it had considered the prison credits appellant would have earned against the 11-year prison term.
The trial court denied the Romero motion based on the seriousness of the instant offense and the 1985 murder accusation that was resolved in 1986 with a plea to voluntary manslaughter. Further, it commented that initially, after the 1986 conviction, appellant was placed on probation on condition that he serve 536 days in the county jail. He thereafter violated his probation and was committed to state prison to serve an 11-year prison term. The trial court said that although the prior conviction was some 22 years old, it was a serious offense and it was not inclined to strike it. It sentenced appellant as a second-strike offender.
On appeal, appellant asserts that the trial court improperly based its decision on appellant’s criminal record alone and failed to consider the proffered mitigation. The record of the sentencing proceedings fails to support these claims. It demonstrates that before considering the Romero motion, the trial court read the probation report and the prosecutor’s sentencing memorandum. It listened to trial counsel’s arguments in mitigation. Essentially, trial counsel argued that the remoteness of the 1986 prior conviction required that it be stricken and that following appellant’s release from prison after that conviction, appellant had suffered no further arrests.
While the conviction itself was almost 22 years old, appellant thereafter continued to engage in a life of crime. The contents of the probation report demonstrated that appellant was in prison or on parole after the voluntary manslaughter conviction until at least 1996. In April 2006 he burglarized his great-aunt’s residence, and in September 2006 he was arrested for unlawfully possessing the firearm in his console. Preceding the instant home invasion robbery, appellant was apparently living off the proceeds of acts of prostitution Jackson engaged in and was contributing to the 17-year-old’s dissolute and delinquent lifestyle. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [20-year-old conviction is not mitigating where the defendant continues to commit crimes].) The current and 1986 convictions were both serious and violent offenses. Appellant never elucidated the circumstances of his 1986 conviction, which suggests the circumstances were not mitigating; in the instant case, Curtis almost died from the beating. Appellant offered no mitigating evidence of employment or good character.
A trial court is presumed to have considered all relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) This record contains no affirmative indication that the trial court failed to consider all relevant factors before it denied the Romero motion. Further, it explicitly denied the Romero motion on the ground that the 1986 voluntary manslaughter conviction and this home invasion robbery offense were serious and violent offenses, which was an implicit finding of a lack of remoteness because the two offenses were so serious and so similarly violent. The trial court’s limited comments indicate that the trial court considered all the mitigation urged by trial counsel and which existed in the record. (See In re Large (2007) 41 Cal.4th 538, 550-551.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN P. J. CHAVEZ J.
During the initial trial, the jury found Jackson guilty of the count 1 home invasion robbery with the personal infliction of great bodily injury and of the count 6 lesser included offense of simple mayhem with the personal use of a deadly and dangerous weapon, the baseball bat. The jury could not agree as to Jackson concerning his guilt of the other charges and of the use of a firearm during the count 1 home invasion robbery. The jury acquitted appellant of counts 3, 4, 5, and 6 and could not reach an agreement as to appellant’s guilt on counts 1 and 2.
On retrial, as to appellant, the jury returned verdicts of guilty for the count 1 home invasion robbery and for the count 2 false imprisonment by violence. It also found true as to those counts the principal-armed allegations (§ 12022, subd. (a)(1)) and the personal use of a firearm (§ 12022.53, subd. (b)).
On retrial, as to Jackson, the jury resolved the principal-armed and firearm-use enhancements in the count 1 home invasion robbery against Jackson. It found him guilty in count 2 of false imprisonment by violence with findings that a principal was armed, the personal use of a firearm, and the infliction of great bodily injury. In count 4, it found Jackson guilty of the lesser included offense to murder of attempted voluntary manslaughter with findings of the personal use of a deadly or dangerous weapon, the baseball bat, and the personal infliction of great bodily injury.