Opinion
B159831.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ESCARENO, Defendant and Appellant.
Cynthia Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Robert Escareno appeals from a judgment entered upon his conviction by jury of three counts of robbery (Pen. Code, § 211).[] The jury also found the firearm use allegation within the meaning of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b) to be true. The trial court found the allegations that appellant had suffered 14 prior felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and two prior felony convictions within the meaning of section 667, subdivision (a)(1), to be true. It sentenced appellant to state prison for an aggregate term of 110 years to life. Appellant contends that the trial court erred in (1) denying his motion to set aside the information based upon ineffective assistance of counsel at his preliminary hearing, (2) denying his right to self-representation, (3) denying his motion for mistrial made on the ground that the trial courts questioning of defense counsels ability to practice law violated appellants right to conflict-free representation, and (4) denying his motion to discharge retained counsel after the jury verdict. He also contends that he was denied his right to effective assistance of counsel at trial.[]
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant has filed a petition for writ of habeas corpus, No. B170487, which is considered concurrently with the appeal. A separate order will be filed in that matter.
We affirm.
FACTS
The Prosecutions case.
On September 20, 2001, at approximately 7:50 p.m., a man entered the Sizzler restaurant, on Rosemead Boulevard, in North San Gabriel, in the County of Los Angeles, and approached Shirley Herrera who was working alone at the front counter taking orders. The man asked where the restroom was located and walked in that direction. He returned in a couple of minutes and stood 15 to 20 feet from Herrera, looking at the front menu while she served customers.
When the customers left, the man approached to within 18 to 24 inches of Herrera, pointed a small, silver gun at her and demanded "all the money." He remained there for approximately a minute, giving Herrera a good look at his face. Fearing for her life, she gave the man approximately $350 from the register.
The man left, and Herrera telephoned the police. When they arrived, she described the robber as 35 to 40 years old, five feet nine inches tall, weighing approximately 170 pounds and having a moustache. She may have described his eyes as green. She said she did not notice any unique features. At the preliminary hearing, she testified that she was too busy looking at the robbers face and hand movements to notice any tattoos or scars and that she did not tell the police appellant had any facial hair.
There were no operating cameras in the restaurant from which to identify the robber. But on December 13, 2001, Los Angeles County Sheriffs Detective, Patrick Martinez, brought a photographic six-pack, containing pictures of men of the same race, same age range and the same general facial characteristics, to show Herrera. He testified that Herrera immediately, without hesitation, pointed to the picture of appellant and said, "Thats him." He asked her to be sure, and she said she was positive. He asked her to write anything distinctive about the suspect and she wrote, "because that looks like him." She also wrote, "The suspect in my case is No. 5 [the appellant]." Herrera also identified appellant as the robber at the preliminary hearing and at trial, testifying at trial that she was 100 percent certain of her identification.
On October 9, 2001, at approximately noon, a man entered a Chevron service station on Santa Anita Avenue, in El Monte, in the County of Los Angeles. Eloina Camarena and Rosa Diaz were working as cashiers. Camarena saw the man as he approached the registers. He held a container of juice and placed it on the counter. When he was six to seven feet from the cashiers, he looked at them, took out a gun from the waistband under his shirt and told them not to move. Camarena kept looking at him, having a clear, unobstructed view. He told Camarena and Diaz to open their registers, give him the money and place it on top of the counter, which they did. Camarena and Diaz followed his instructions because they were afraid. The robber began putting the money, which totaled approximately $1,000, in his pocket. He ordered the cashiers and three patrons back into a storage area, yelling that they should not come out until he was gone. When he left, someone called 911. The customers left before the police arrived.
Detective Martinez testified that on November 22, 2001, he took a photo six-pack to Camarena. She immediately identified appellant without hesitation, stating that she was positive he was the robber. Camarena also identified appellant as the robber at the preliminary hearing and at trial, testifying that she was 100 percent certain. But during the robbery, she did not notice the tattoos that appellant had on his neck at trial.
Detective Martinez recovered a drink container that was allegedly left by the robber on the counter at the Chevron crime scene. No prints were obtained from it, which he testified was not uncommon. He also viewed a surveillance video from the Chevron station, which was played for the jury, on which he saw markings on the robbers neck in the same location as he observed markings on appellant at trial. He also obtained some still photographs from the videotape. He recognized appellant from the still pictures and video, although appellant had attempted to change his appearance at trial by growing hair on his head and shaving his goatee and mustache. The detective compared a photograph of appellant taken on December 5, 2001 and the still photo from the Chevron station, and concluded that it was the same person. In two DMV photos, one taken on May 7, 2001 and one on November 1, 2001, appellant had no hair on his head and wore a goatee and moustache.
The defenses case.
Appellant presented an alibi defense. His mother, Yvonne Ibarra, testified that her birthday was on September 20, and at her last birthday, on the day of the Sizzler robbery, she had a dinner at her home attended by appellant, Ibarras mother, daughter, April Juarez, appellants girlfriend, Maricela Gamboa, Ibarras cousin and aunt and a neighbor. Appellant arrived with Gamboa and Juarez at approximately 5:45 or 6:00 p.m. Dinner was served five or ten minutes later, and the party ended at 9:00 pm., when appellant left. Appellant did not leave the house at any time between his arrival and departure. Although Ibarra knew in December 2001 or January 2002 that appellant had been charged with committing a crime on her birthday, she made no effort to advise anyone that he was at her party at the time.
Gamboa testified that she left work at Beverly Hospital, in Montebello, at approximately 5:00 p.m., with appellant and Juarez, and arrived at Ibarras house at approximately 5:40 p.m. Appellant left the party at 8:40 or 9:00 p.m. Appellant was there the entire time. Despite learning in February 2002 that one of the crimes alleged against appellant occurred on his mothers birthday, Gamboa did not report the alibi to anyone.
DISCUSSION
I. Motion to set aside the information.
On the day of appellants preliminary hearing, his appointed counsel sought a continuance to permit him to request a physical lineup pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans). The trial court denied the request, finding that defense counsel had not complied with discovery requirements or established good cause for failing to do so, and had not filed a noticed motion for such an order. At the preliminary hearing, Herrera and Camarena identified appellant as the perpetrator of the charged robberies.
Subsequently, represented by new retained counsel, appellant moved to set aside the information pursuant to section 995, arguing that his appointed counsel at the preliminary hearing failed to take appropriate action to obtain a pretrial physical lineup prior to the hearing. The trial court denied the motion, concluding that ineffective assistance of counsel was not an appropriate basis for a section 995 motion.
Appellant contends that the trial court erred in concluding that ineffective assistance of counsel was not properly a subject for a section 995 motion and that denial of that motion violated his state and federal constitutional right to due process, mandating reversal of his conviction. While we agree with appellant that ineffective assistance of counsel can be a basis for a section 995 motion, we disagree that the denial of that motion here violated appellants rights.
When a defendant is denied a substantial right at a preliminary hearing, his or her commitment is deemed unlawful under section 995, and the information must be set aside.[] (People v. Coleman (1988) 46 Cal.3d 749, 772.) If a defendant is denied effective assistance of counsel at a preliminary hearing, a substantial right has been denied. (Id. at pp. 772-773; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523.) But we reverse irregularities in the preliminary hearing only if the defendant can show that the error resulted in an unfair trial or that he was otherwise prejudiced. (People v. Coleman, supra, at p. 773.) The trial court did not err in denying the motion to dismiss the information because, as discussed below, the failure to obtain a pretrial lineup did not constitute ineffective assistance of counsel and thus did not justify the motion to dismiss.
Section 995 provides that "the information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: [¶] . . . [¶] (2) If it is an information: [¶] (A) That before the filing thereof the defendant had not been legally committed by a magistrate. [¶] (B) That the defendant had been committed without reasonable or probable cause. . . ."
To successfully assert a claim of ineffective assistance of counsel, a defendant must demonstrate that counsels representation fell below an objective standard of reasonableness, and but for counsels errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn 1.)
In Evans v. Superior Court, based on which appellant claimed entitlement to a pretrial physical lineup, witnesses identified the defendant at the crime scene after viewing only the backs of the heads and shoulders of the suspects through the back window of a police vehicle in which the suspects were seated. After the preliminary hearing, the defendant requested a pretrial lineup. (Evans, supra, 11 Cal.3d at p. 620.) The trial court, which wanted to grant the request, denied it on the ground that it lacked discretion to order the People to conduct such a lineup. The Supreme Court issued a writ of mandate directing the trial court to vacate its order and proceed in accordance with the Supreme Courts opinion, and stated: "[D]ue process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." (Id. at p. 625, italics added.)
"The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. [Citations.] We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses." (Evans, supra, 11 Cal.3d at p. 625.) Even in suggestive circumstances, a witnesss positive identification of a suspect at a crime scene can support a magistrates exercise of discretion to conclude that a reasonable likelihood of a mistaken identification did not exist. (People v. Rivera (1981) 127 Cal.App.3d 136, 149.)
Here, there was no reasonable probability of mistaken identification to justify a pretrial lineup. Both eyewitnesses had an ample opportunity to view appellants face during the robbery, having stared directly at him when he was only a few feet from them for several minutes. He wore no mask or other disguise. There was no suggestion that the pretrial identification procedures were faulty, as the photographic six-pack depicted six similar looking men, and the eyewitnesses were certain of their identifications. The eyewitnesses in court identifications were made without hesitation. Camarenas identification was corroborated by a surveillance video. Appellants assertion that he had an alibi for the Sizzler robbery, that there was no physical evidence to tie him to that crime, that the six-pack identification did not occur at the time of the offense and that appellant changed his appearance for the trial does not undermine the strength of the eyewitnesses identifications.
Because appellant had no right to a pretrial lineup, he did not receive ineffective assistance of counsel when his attorney failed to properly seek one. Consequently, he was not deprived of any substantial right at the preliminary hearing, and the trial court did not err in denying his section 995 motion.
II. Appellants belated request for self-representation.
Before trial, counsel retained by appellant replaced appointed counsel. During a break in voir dire, retained counsel notified the trial court that appellant was dissatisfied with his strategies for handling the defense, causing a breach in the attorney-client relationship such that he could not effectively represent appellant. When questioned by the trial court, appellant stated: "The issue is to get things understood between him and myself and we have not had time to do that." The trial court found no breakdown in the attorney-client relationship and gave appellant an opportunity to meet with his counsel.
During trial, after the direct examination of Camarena, appellant asked to address the court. He requested that the district attorney be excluded from the discussion, but the trial court refused to so order.[] Appellant informed the court that (1) everything retained counsel told him was a "farce," (2) his attorneys investigator failed to do what she was supposed to do, (3) "[His counsel wa]s questioning the witnesses like he does not know what is going on with the case" and based on incorrect information, (4) he had difficulty communicating with his attorney who lived in a convalescent hospital and required all communications to be through his investigator, (5) his attorney was disclosing information to appellants mother and showing the surveillance videotape from the Chevron station "all over town," and (6) his attorney failed to file a timely 1050 motion. Appellant concluded: "If I am going up the river, I need to go down with a good defense."
The trial court was insufficiently sensitive to the attorney-client issues. Although this was not a motion under People v. Marsden (1970) 2 Cal.3d 118, any time a trial court considers issues pertaining to the relationship between the defendant and his counsel such that confidential communications or legal strategies might be revealed, an in camera conference without a representative of the People present is necessary to assure that the conflict between defendant and counsel does not provide the People with information helpful in its prosecution and disadvantageous to the defendants defense. On reviewing the entire record here, we are convinced that the trial courts error in conducting the discussion between appellant and his counsel in front of the prosecution had no negative impact on the defense.
Appellants attorney denied appellants accusations and claimed that he "made decisions as to what evidence belongs here and what is not necessary. I use my legal judgment to do this." He contended that appellants dissatisfaction was simply the result of his disagreement with the extent of his counsels cross-examination. Counsel also claimed that he only received information as to the identity of alibi witnesses from appellant the weekend before trial, while appellant claimed he provided him this information months earlier.
The trial court had already criticized appellants counsel for being late for trial due to calendar conflicts and failing to comply with the statutory discovery requirements. It again reflected its displeasure with both appellant and his counsel, stating: "Since there are complaints . . . of a serious nature, perhaps it will be a matter that the State Bar will have to contend with. It nonetheless found appellants complaints "unconvincing," and concluded: "Your attorney, frankly, has done a competent job in cross-examining the witnesses about the things that are typically brought up in a robbery trial." "I will not say it is the best questioning that I have heard in my life, but it is far from the worse [sic]." The court observed that it did not know what sort of investigation could be done in an eyewitness case that boiled down to whether the jury believed the eyewitnesses.
The trial court denied the request for self-representation, stating: "The middle of the examination of a witness is not the time that the court is going to allow it. [¶] It is untimely and would be disruptive of this trial in the extreme and would require the jury to do mental gymnastics and speculate and do all manner of things that would deprive both sides of a fair trial and deprive the court of any means of ensuring the relatively speedy conclusion of the case. [¶] There is no way, shape or form that you could step in and do a competent or smooth job of handling the case. . . . [¶] It is a discretionary matter with the court mid trial [sic] and I will not allow you to represent yourself."
Appellant contends that the trial court erred in denying his request for self-representation. He argues that he had reason for concern about his representation, there was no showing he was incompetent to represent himself, and no unreasonable delay in the proceedings would have been occasioned had he been permitted to represent himself.
A right to self-representation is implied in the Sixth Amendment to the United States Constitution. (Faretta v. California (1975) 422 U.S. 806, 819.) The right to counsel, guarantees a defendant the assistance of counsel if the defendant wants it. It does not require a defendant to use an attorney. "[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. Accordingly, when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be." (People v. Windham (1977) 19 Cal.3d 121, 128.)
But the right to self-representation is sharply curtailed once trial has begun. (See People v. Windham, supra, 19 Cal.3d at p. 124; see also People v. Welch (1999) 20 Cal.4th 701, 729.) At that point, whether to permit self-representation is within the sound discretion of the trial court. (People v. Windham, at pp. 124, 128.) "[O]nce a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court. When such a midtrial request for self-representation is presented the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required. Among other factors to be considered by the court in assessing such requests made after the commencement of trial are the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Id. at p. 128.) A disagreement over trial tactics is not a sufficient justification to grant a belatedly filed Faretta motion. (People v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn. 4.)
The trial court did not abuse its discretion here. Appellants motion was made when trial was well underway, after most of the prosecutions case had been presented. It was clear that allowing appellant to represent himself would have required a further delay in a trial that was already progressing slowly. Appellant had already removed his appointed counsel, leading the trial court to suspect that his efforts to remove retained counsel and represent himself were either obstreperous delay tactics or a generalized realization that he was on an inexorable path to a life in prison. Appellants complaints about his attorney related primarily to tactical decisions such as what questions were asked on cross-examination and unspecified failures to do things. Moreover, the trial court found that while far from perfect, the representation appellant was receiving from his retained counsel was adequate. The trial courts criticism of appellants attorney pertained primarily to his lack of punctuality in appearing at trial and providing discovery to the prosecution, not to the quality of his performance at trial.
III. Right to conflict-free legal representation.
After the trial court denied appellants request for self-representation and mistrial based on incompetence of counsel,[] and the prosecution rested, defense counsel advised the trial court that he intended to call Gamboa, Juarez, Ibarra and Ibarras neighbor as alibi witnesses. This rekindled an earlier discussion as to whether appellant had complied with the discovery statutes and produced the names of those alibi witnesses in a timely fashion. The prosecutor claimed he had only received the names the day prior to trial and had only been able to interview appellants mother and girlfriend. He requested exclusion of the alibi witnesses.
The trial court construed appellants request for self-representation also as a request for a mistrial based on incompetence of counsel.
Defense counsel argued that appellants alibi first came to his attention on May 10 or 11, 2002, just four days before trial. He acknowledged, however, that appellant might have "suggested [the alibi] to my investigator prior to that." Appellant claimed that he told his attorney and his investigator of the alibi months before trial, giving the names of the persons present at the party.
The trial court stated: "In a case like this, if you have alibi witnesses, they fall into the category of folks that you are reasonably likely to call so there is an iron clad duty to make known their identities to your opponent at least 30 days prior to trial. [¶] So either you had the information and for whatever reason sat on it or your client is making up a story and never gave you the information."
The trial court questioned defense counsels investigator, Michelle Garza, with the prosecution present,[] to determine when she learned of the alibi witnesses so it could decide whether defense counsel had violated his discovery obligations in failing to provide the names of those witnesses to the prosecution until the morning of trial and for the purpose of revisiting defendants request for a mistrial and discharge of retained counsel due to his asserted incompetence. Garza testified that she first learned that appellants mother was an alibi witness on May 9, 2002 and of the other alibi witnesses on May 10, 2002, just days before trial. About a month before May 9, 2002, she knew there had been a birthday party and that appellant had picked up his girlfriend and sister at work. While her testimony vacillated as to when she learned of the witnesses, she ultimately stood by her recollection that the first time she became aware of them was on May 9 or 10, 2002.
See footnote 4, supra.
During that same hearing, the trial court also questioned appellants counsel regarding his law practice. Counsel was a double amputee confined to a wheelchair, conducting his practice out of his residence at a convalescent hospital, without an office since August of 2000. He drafted his motions, and his assistant typed them. Appellants counsel stated that he was retained by appellant only for pretrial proceedings and had no intention of going to trial, but was doing the best he could at trial for which he was representing appellant "pro bono." The trial court was astonished by such a retention arrangement, ordered him to turn over a list of all criminal cases on which he was attorney of record and stated that the State Bar would have to look into his practice.
The trial court again denied appellants motion for mistrial based on incompetence of counsel, finding that defense counsel "has done his best to prepare a defense in a difficult case. He has appeared in court. He has cross-examined the witnesses adequately, in the courts opinion, although perhaps not to your liking and perhaps to the degree that one would always see, but adequately. And thats what youre entitled to. You hired an adequate counsel. Youve got one sitting next to you. [¶] Your motion for a mistrial, therefore, based on the perceived inadequacies is denied. I believe you can have a fair, albeit not a perfect trial." The trial court also found that defense counsel was on notice of the existence of potential alibi witnesses, at the latest, a month before trial, learning of appellants mother and girlfriend as alibi witnesses, and that it was therefore incumbent on him to make those witnesses known to the prosecution. He learned of the other alibi witnesses on May 9 or 10. It also found that the discovery failures were not the result of a bad faith effort to deceive the prosecution, but was the result of sloppiness.
Because the trial court did not find bad faith or an attempt to obtain a tactical advantage, it chose not to punish appellant for counsels error and did not exclude the testimony of the alibi witnesses. Instead, it sanctioned appellant by informing the jury that the defense did not make known to the prosecution the names of several witnesses in a timely fashion as required by discovery rules without excuse or justification, that the delay in providing those names can prevent the opposing side from marshalling evidence to rebut the evidence and that the jury could consider that failure in determining the weight it should accord those witnesses testimony.
Appellant contends that "the courts investigation into defense counsels law practice while it allowed him to continue to represent appellant and denied the motion for mistrial based on ineffective assistance of counsel created a conflict of interest between appellant and his attorney which was irreconcilable," depriving him of a right to "conflict-free counsel" and to a fair trial. He argues that by virtue of the trial courts questioning, defense counsel "began to defend himself against a State Bar complaint from the trial court instead of defending appellant from the criminal charges." Appellant points to defense counsels failure to object to the trial courts admonition to the jury about the defenses discovery violation, the suggestion that appellant was to blame for his failure to comply with the witness list deadline and defense counsels statement that he was not retained to take the case to trial, as evidencing the adverse effects of this purported conflict. This contention is without merit.
A criminal defendants right to effective assistance of counsel includes the right to counsel free of conflicts of interest. (People v. Bonin (1989) 47 Cal.3d 808, 834.) "Conflicts of interest broadly embrace all situations in which an attorneys 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." (Id. at p. 835.) Examples of such conflicts include where an attorney represents more than one party, represents a client and has a current or prior relationship with a witness and represents a defendant in return for literary rights. (Id. at pp. 835-836.)
Where a possible conflict of interest exists, the trial court must inquire into the circumstances of the potential conflict and take "whatever action may be appropriate." (People v. Frye (1998) 18 Cal.4th 894, 999.) A conviction will be reversed for the trial courts failure to satisfy its duty, only where the defendant demonstrates an actual conflict and that the conflict adversely affected counsels performance. (Ibid.) Appellant must demonstrate that the conflict of interest prejudicially affected his counsels representation. (People v. Clark (1993) 5 Cal.4th 950, 995.) We find no such prejudicial effect on defense counsels representation here.
We agree with respondent that the trial courts inquiry into defense counsels law practice pertained to his ability to maintain his practice because of his repeated tardiness. It did not specifically pertain to the quality of his representation of appellant, which the trial court found to be adequate. Moreover, nothing in the record supports appellants speculation that the trial courts inquiry caused appellants counsel to focus on protecting himself from a State Bar investigation, rather than on his clients interests. It would appear that a threatened State Bar proceeding would enhance counsels conscientiousness to obtain the best result for his client so his errors would not be found to have caused an unfavorable result. It is illogical to suggest that as a result of the purported conflict appellants counsel agreed with the trial court admonishing the jury regarding his discovery failure. While that instruction might undermine appellants defense, it provided no benefit to his counsels State Bar concerns. Defense counsels failure to object to the admonition was more likely the result of his desire to thankfully accept the comparatively minor sanction of the admonition, when the prosecution was requesting the harsher sanction of excluding appellants alibi witnesses. While appellant and his retained counsel might have had conflicting positions regarding who was responsible for the untimely providing of the names of alibi witnesses, that conflict created no incentive for defense counsel to sabotage his clients case, and nothing in the record suggests that he did so.
IV. Ineffective assistance of counsel.
Appellant contends that he was denied effective assistance of counsel by virtue of his counsels (1) failure to object to Detective Martinezs testimony that appellant was the person in the Chevron surveillance video, (2) allowing evidence of other uncharged robbery investigations to be admitted without challenge, and (3) failure to prepare his case in sufficient time to comply with reciprocal discovery obligations. This contention is without merit.
As stated in Part I, a successful claim of ineffective assistance of counsel, requires a defendant to demonstrate that counsels representations fell below an objective standard of reasonableness, and but for counsels errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at pp. 688, 694; People v. Berryman, supra, 6 Cal.4th at p. 1081.) "`"Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citation.] "[W]e accord great deference to counsels tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts." [Citation.] [¶] In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. ([Citation]; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].) [Citation.]" (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Detective Martinezs Opinion Evidence
Detective Martinez testified that he recognized appellant as the robber on the Chevron surveillance videotape. Defense counsel made no objection to that testimony. Appellant argues that his counsel failed to adequately represent him by failing to object to that evidence which constituted an improper opinion on appellants guilt, the ultimate issue in the case. We disagree.
This testimony was not an expression of opinion on appellants guilt or innocence. Like the eyewitnesses identification, it was merely testimony identifying appellant as the robber. It said nothing of the other elements of the robbery charge necessary to convict. Whether to object to evidence is a strategic decision. (People v. Lucas (1995) 12 Cal.4th 415, 444.) We cannot say that counsel had no rational tactical basis for failing to object to the detectives testimony. Attorneys are frequently reluctant to object in front of a jury and appear to be concealing evidence. Moreover, the surveillance videotape and still pictures from it were in evidence, permitting the jury to reach its own conclusion as to whether appellant appeared in them. Additionally, the detectives testimony was merely corroborative of the testimony of Camerena who unequivocally identified appellant as the Chevron station robber. Finally, appellants defense did not vigorously contest his responsibility for the Chevron robbery, focusing instead on his alibi defense to the Sizzler robbery.
The admission of uncharged crimes.
During questioning of Detective Martinez, appellants counsel inquired: "Detective Martinez, how did you come to select a destination [sic] of Robert Escareno as the photograph that you wanted to be pulled from the DMV?" The trial court called for a conference outside of the presence of the jury and suggested that the question might elicit a response that appellant had prior convictions. At the trial courts suggestion, appellants counsel then withdrew the question and asked the detective whether anyone in the detectives department searched appellants premises in conjunction with the investigation into the charged robberies, to which a negative response was received. He then asked if anyone searched appellants premises, to which an affirmative response was received. He continued: "Who was that? Do you know? [¶] A The El Monte Police Department had an ongoing investigation concerning the defendant and had made an arrest, but prior to the arrest of the defendant they had searched his residence in the search of other additional crimes. [¶] Q Do you know the date of that? [¶] A No, I do not, sir. [¶] Was it subsequent to the robberies that you speak of here? [¶] A It was subsequent to other robberies. [¶] THE COURT: I dont want to hear about any other robberies. [¶] That answer is stricken. [¶] The question — [¶] The jury is admonished to disregard any investigation by any agency or any other potential offenses."
Appellants counsel did not challenge the detectives testimony that appellant was the subject of several other robbery investigations, had been searched, and had been arrested as a result. Appellant contends that the failure to challenge that testimony constituted ineffective assistance of counsel. This contention is without merit.
The evidence of uncharged robberies was introduced when Detective Martinez provided a non-responsive answer to defense counsels question. Once adduced, defense counsel might have chosen not to focus undue attention on it by objecting. Furthermore, the trial court interposed its own objection, striking the reference to other robberies. The decision to not object to this evidence was a tactical one (People v. Lucas, supra, 12 Cal.4th at p. 444), and the failure to challenge it was not without any rational tactical purpose.
Providing late discovery.
Appellants counsel failed to investigate and prepare the defense case in sufficient time to comply with reciprocal discovery requirements. As a result of his failure to notify the prosecution of defense alibi witnesses, appellant was subjected to sanctions. The court admonished the jury that the prosecution was disadvantaged by appellants failure to timely provide the names of his alibi witnesses, and it could consider that fact in weighing the evidence. Appellant contends that this failure constituted ineffective assistance of counsel. This contention lacks merit.
This failure does not constitute ineffective assistance of counsel, as there is no reasonable probability that the result would have been different had it not occurred. Despite the late discovery, appellant was permitted to call his alibi witnesses. The sanction imposed, admonishing the jury, was unlikely to have had significant impact. The evidence against appellant was overwhelming. There were two eyewitness identifications and a surveillance video identifying him as the perpetrator of the Chevron robbery. The alibi witnesses who testified were appellants mother and girlfriend, both of whom had significant reason to fabricate and failed to inform anyone of the alibi for many months after they learned that appellant was charged with a robbery at the time he was purportedly attending his mothers birthday dinner.
V. Discharge of appellants counsel after verdict.
Immediately after the jury rendered its verdict and was discharged, the following colloquy regarding discharging appellants counsel took place: "[APPELLANT]: In regards to the thing about the priors and all that, does Mr. Simon have to conduct that also? Is there anyway [sic] I can seek somebody to do that. [¶] THE COURT: No, were going to do that right now and so your request if that is a request is denied." The trial court continued: "In terms of the first hearing [on prior convictions] were going to have that now. Thats the part of the trial we bifurcated so the jury wouldnt know you had those allegations were going to finish that off here and now. The second portion of this so-called Romero motion, if thats what youre talking about, would not be conducted today so I will consider at the end of todays proceeding your request if there is one for a continuance of the sentencing hearing so that you might obtain yet a third counsel."
After trial on the prior convictions, the trial court found that appellant had suffered 14 prior convictions, and resumed the discussion of appellants request to retain new counsel. The trial court inquired whether appellant had the money to do so and was told that he did. The trial court then ruled: "Im not relieving [defense counsel] because Im not at all convinced hell get counsel in here in a timely fashion, frankly, to handle the case. I can give a sufficient amount of time." The trial court put sentencing over for 30 days, warning: "If you do not have an attorney in here on the 30th day and expect a continuance it aint going to happen. If you want an attorney to handle this case, youre going to have to get an attorney rather quickly and tell that attorney that he or she must be ready on the date that Im going to set and under those circumstances if an attorney shows up ready, willing and able to go forward on the next date, you may have any attorney you hire." The trial court continued: "I will only relieve — Im telling the defendant and Im telling [defense counsel] right now I will only relieve [defense counsel] if an attorney shows up on our next date ready to complete the case, okay, not an attorney whos going to walk in and say, `I would like to continue the case. [¶] Ive had it with continuances and delays. This will be the third lawyer . . . ."
Appellant appeared at the sentencing hearing without new counsel, and his trial counsel, who was again late for the hearing, requested a continuance. The trial court denied the motion as untimely and for lack of good cause. It also denied a Romero[] motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Appellant contends that the trial court erred in denying his motion to discharge retained counsel after the jury verdict was obtained, because the trial proceedings would not have been unreasonably disrupted by relieving counsel. This contention is without merit.
A criminal defendant has a due process right to appear and defend with retained counsel of his or her choice. (People v. Lara (2001) 86 Cal.App.4th 139, 152.) As a general proposition, a defendant can discharge retained counsel at any time with or without cause (ibid.; People v. Ortiz (1990) 51 Cal.3d 975, 983) because "[a] defendant has a . . . statutory right to counsel of his choice, and his interest in discharging a retained attorney is included within the right to counsel of ones choice. [Citation.]" (People v. Lara, supra, at p. 152.)
But the right to discharge retained counsel is not absolute. "[T]he court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is "`unjustifiably dilatory or . . . arbitrarily desires to substitute counsel at the time of trial." (People v. Lara, supra, 86 Cal.App.4th at p. 153; see also People v. Blake (1980) 105 Cal.App.3d 619, 624.) A motion to discharge retained counsel may also be denied if it will result in "`significant prejudice" to the defendant, such as by leaving him for trial without adequate representation or it is untimely and will result in disruption of the orderly processes of justice or "unreasonable under the circumstances of the particular case." (People v. Ortiz, supra, 51 Cal.3d at p. 982.)
The trial court did not abuse its discretion here. Immediately after the jury was discharged and the trial court was about to begin the court trial of prior convictions, appellant requested that he be allowed to discharge his counsel, and retain new counsel. The request for his third counsel would therefore have necessitated a continuance of the trial of the priors with little confidence, as the trial court termed it, that "hell get counsel in here in a timely fashion . . . to handle the case." Appellants request was both untimely and would disrupt the orderly process of completing the trial.
Furthermore, the trial court did accord appellant the opportunity to obtain new counsel for the sentencing hearing and Romero motion, setting them 30 days later and assuring appellant that if he retained new counsel for that hearing who was ready to proceed on the scheduled date he would be allowed to discharge his current counsel. As the trial court suspected, appellant appeared at the sentencing hearing without new counsel, suggesting that even if it had continued the prior convictions trial, appellant would not have retained new counsel for it. The case had been much delayed and at the late stage of the proceedings, the trial court had every reason to insist on efficiency and that appellant proceed with current counsel.
DISPOSITION
The judgment is affirmed.
We concur: NOTT, J. and ASHMANN-GERST, J.