Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF124813. J. Thompson Hanks, Judge. Reversed with directions.
Laura Schaefer, 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, and Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
King, J.
Defendant Robert Charles Evans was convicted by a jury of felony petty theft (having been previously convicted of carjacking) (count 1; Pen. Code, § 666), burglary (count 2; Pen. Code, § 459), and evading arrest (count 3; Veh. Code, § 2800.2). The jury also found true allegations of six prior strike convictions (Pen. Code, § 667, subds. (c), (e)(2)) and two prison priors (Pen. Code, § 667.5, subd. (b)). He was sentenced to 27 years to life.
On appeal, defendant contends: (1) the trial court erred in failing to find that he had established a prima facie case of the prosecutor’s discriminatory use of peremptory challenges of prospective jurors; (2) the evidence was insufficient to support the convictions of theft and burglary; and (3) the court erred in failing to conduct a Marsden hearing after he moved for new trial based upon ineffective assistance of counsel. The People dispute the first two contentions, and concede the court erred in failing to conduct a Marsden hearing, but contend the error was harmless. We reject defendant’s first two contentions and agree with the parties that the court erred when it failed to hold a Marsden hearing. Because we conclude that the Marsden error is not harmless, we reverse the judgment and direct the trial court to hold the requisite hearing.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. FACTUAL SUMMARY
A. Prosecution Evidence
In July 2005, Angela Neri was a loss prevention officer for Kohl’s Department Store. A few days before July 11, 2005, Neri observed defendant and Esther Wilson enter the shoe department of the store. Defendant and Wilson selected a pair of men’s shoes. Wilson put the shoes in a bag described by Neri as a “side backpack.” Neri then went to a room where she observed defendant and Wilson on surveillance cameras. According to Neri, Wilson stayed in the shoe department “just staring at nothing,” while defendant walked to the front of the store where he paced back and forth. Defendant walked back to the shoe department and spoke with Wilson. Wilson took the shoes out of her bag and put them back in a cubbyhole where shoes are kept. Defendant and Wilson then walked out of the store. Neri followed them outside and wrote down a description of their green Toyota truck and the truck’s license plate number.
On July 11, 2005, Neri was standing near an entrance to the store with Correna Garcia, the loss prevention supervisor for the store. They saw defendant and Wilson enter the store. Wilson was carrying the same bag she had with her when Neri observed them a few days earlier. When Neri told Garcia about the prior incident, they began to conduct surveillance. They took turns watching the couple from the sales floor and on monitors. A video recording of what could be seen on the surveillance monitors was shown to the jury at trial.
Defendant and Wilson walked through several departments with defendant pushing a shopping cart. In the juniors’ department, or teen area, Wilson looked at capris and pants, and put some items into the cart. Neri described Wilson as a tall, “larger woman,” who would not be able to fit into any of the clothes sold in that area of the store. They then walked into and through the juniors, cosmetics, handbags, hosiery, and men’s athletic apparel departments. In the men’s athletic apparel department, they selected some T-shirts and placed them in the cart. They proceeded to the little girls’ department and stopped outside the fitting rooms. Wilson draped some clothes across the top of the cart. The two then positioned themselves so that the inside of the cart could not be seen by others. Wilson removed some of the clothing from her cart, including the juniors’ apparel and men’s apparel, and draped them over her left arm. Defendant and Wilson leaned over the cart and appeared to be doing something with Wilson’s handbag inside the cart. Defendant handed the bag to Wilson, who then walked into the fitting room with the clothes and her handbag while defendant stood by the cart. While Wilson was in the fitting room, Neri called the police.
Wilson came out of the fitting room holding the men’s apparel and a pair of juniors’ pants. She did not have the other items of juniors’ clothing that she had when she went into the fitting room. Wilson’s handbag was fuller than it was when she went into the fitting room.
Defendant and Wilson walked back through the men’s accessories department. The juniors’ clothes were not in the cart. In the men’s department they abandoned the cart. Neri looked into the cart to see if the juniors’ clothing was in the cart. She saw only the men’s shirts and capris, not the juniors’ tops.
The couple walked to the checkout registers. Wilson was holding a single item of clothing—a shirt. Neri went outside the store. The couple had been inside the store for approximately 35 minutes. Defendant walked outside the store while Wilson waited in line for the cashier. Neri watched defendant walk to the same green truck she had seen a few days before. Defendant did not smoke a cigarette or meet anyone. The truck was parked approximately five parking spaces away from the door. He got into the driver’s side of the truck, drove towards the front of the store, and stopped in a red zone. There was no one else in the truck.
Wilson purchased a shirt with money she held in her hand without reaching into her handbag. Neri approached her outside the store, showed Wilson a badge, told her she was with Kohl’s loss prevention, and said that she needed Wilson to go back inside the store. Wilson walked away from Neri, climbed into the bed of the truck, and screamed, “Leave[,] [l]eave” or “[g]o, go, go.” Neri ran up to defendant and told him, “[d]on’t leave,” and “P.D.’s in the parking lot.” Neither Neri nor Garcia saw anyone other than defendant in the cab portion of the truck. Defendant drove away.
Corona Police Officer Daniel Hackett responded to Neri’s call. He entered the Kohl’s parking lot in a marked police car as defendant’s green truck was in front of the Kohl’s store. Officer Hackett saw a commotion in front of the store, and then saw a woman jump into the bed of the truck. He was traveling toward the green truck, with the truck facing his police car. Officer Hackett could see defendant driving the truck. He did not see anyone else in the cab of the truck. Defendant drove past the police car. The officer made a U-turn and followed the truck. He could see Wilson in the truck bed. Officer Hackett turned on his car’s air horns, sirens, and overhead lights. Defendant sped away, running red lights before getting onto the freeway. Officer Hackett chased defendant on Interstate 15 and then Highway 91, where defendant was weaving among heavy traffic and using the emergency lane on the right shoulder. After defendant exited the freeway and drove the truck into a residential area, the chase was called off to avoid injury to children.
Shortly after the pursuit was called off, another police officer spotted defendant’s truck and followed it. The officer saw that defendant was the only person in the cab of the truck. He also saw a woman raise herself up out of the bed of the truck. Defendant pulled into a parking lot, jumped out of the driver’s seat, and fled on foot. Wilson jumped out of the bed of the truck and tried to get into the passenger door of the truck, but it was locked. She went around the truck and got into the driver’s seat. The officer told defendant and Wilson to “freeze,” but defendant kept running and Wilson drove away. With the help of a police dog, defendant was found in a shed in a residential area.
Wilson was not apprehended. No stolen merchandise was ever recovered.
Under cross-examination, Neri testified she could not remember if she went into the fitting room to look for security tags that might have been removed from clothing. Nor did she remember if it was she or Garcia who checked the shopping cart for clothes after defendant and Wilson abandoned it.
After his arrest, defendant waived his Miranda rights and was interviewed by a police officer. He said he was in the store with a female friend he knew only as Esther, but did not know she was going to steal anything. He said he went outside for a smoke while Esther was at the store register. He then drove to the front of the store at Esther’s request. He saw some type of verbal confrontation take place between some people and Esther as she exited the store. Esther initially jumped into the bed of the truck. Then he moved over to the passenger side and Esther got into the driver’s seat and drove off. He did not mention that there was a third person in the truck.
Miranda v. Arizona (1966) 384 U.S. 436.
B. Defense Evidence
Defendant testified as follows. On July 11, 2005, he had the day off from work. He met up with Wilson, his former girlfriend. Wilson was with a friend of hers named Joe. Defendant asked Wilson for a ride to pick up his paycheck. Wilson asked defendant if he would first ride with them to the store. Defendant agreed. Joe drove the truck to Kohl’s, with Wilson in the front seat and defendant in the backseat of the truck’s cab. He had never before been to that store.
Greg Marsh, a general contractor, testified that he employed defendant on July 11, 2005.
Joe stayed in the truck while defendant and Wilson went into Kohl’s. He did not go into the store with the intent to steal or to help Wilson steal. While inside the store, he did not help Wilson steal anything. He explained: “I wouldn’t help Esther steal because I can’t afford to help nobody steal. I am a second-striker. I do not get involved in nothing.”
Defendant left Wilson at the checkout register to go outside and smoke a cigarette. As he approached the truck, Joe was pulling up to him. He got in the passenger side and into the backseat of the cab, behind Joe. Joe pulled the truck up to the front of the store.
When Wilson came out of the store, a “mob” appeared out of “nowhere” in front of the store. There appeared to be an altercation between Wilson and the mob. Wilson jumped into the bed of the truck and hollered, “Just go.” Joe drove off. Defendant asked Joe, “What’s going on?,” but Joe did not reply. After the police car turned on its lights and sirens, defendant asked Joe to let him out of the truck because he did not want to be involved, but Joe “just kept on punching it.” Defendant asked repeatedly to be let out of the vehicle, but Joe would not respond. When Joe eventually stopped the truck in a parking lot, defendant crawled over Joe and got out of the truck on the driver’s side. Defendant ran away because he was scared and wanted to avoid any contact with the police because of his criminal record. He found a place to hide, but was eventually found and arrested.
In the interview after his arrest, defendant did not tell the interviewing officer about Joe or provide Wilson’s last name because he did not want to be a “snitch.”
II. ANALYSIS
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
Defendant contends the trial court erred in failing to find the prosecutor’s peremptory challenges of two prospective jurors raised a prima facie case of discrimination for purposes of Wheeler and Batson. We disagree.
1. Relevant Facts
The two jurors who defendant claims were the subject of discriminatory peremptory challenges are Ms. Burroughs and Mr. Jackson. During the court’s voir dire of prospective jurors, Mr. Jackson stated that he was a senior inspector for the housing authority, was not married, had no children, had not served in the military, received an associates degree, and lived in Riverside County. He was a juror once before, on a criminal case 23 years ago in which the jury reached a verdict. Ms. Burroughs stated that she worked in inventory control for nine years, was not married, had two children, had never served in the military, graduated from high school, and lived in Moreno Valley. She had never been a juror. They both said they could be fair and impartial in this matter.
When defense counsel asked Ms. Burroughs what went through her head when she heard the charges against defendant, she responded: “I just thought it was a lot of charges and a lot of numbers—that’s what I was thinking—and why did it apply to this, what we’re doing now.” When asked if she had ever been to “that Kohl’s,” she said she had not.
Defense counsel did not ask any questions of Mr. Jackson.
The prosecutor asked the prospective jurors whether a person could be held responsible based solely upon testimony. Mr. Jackson asked, “Eyewitness testimony or just testimony?” The prosecutor clarified, “Sure, eyewitness testimony.” Mr. Jackson answered, “Me, personally, I would probably say no.”
The following colloquy then took place:
“[PROSECUTOR]: You would say that’s not enough?
“Okay. Let me give you an example.
“What if we had a robber? We’ve got a burglar or robber that holds someone at knifepoint, and the victim knows that person. All right? They know that person because it’s the brother’s friend. And he comes in, and he says it was him. Points directly at him and says, ‘I know him, I recognize him, he’s the guy.’ And that’s all you got, because that’s testimony. Are you going to say that’s not enough?
“[JUROR]: That’s eyewitness testimony.
“[PROSECUTOR]: So eyewitness testimony, is that enough?
“[JUROR]: Based on that, I would probably say yes.
“[PROSECUTOR]: What if you don’t have a video of it?
“[JUROR]: If you don’t have a video of it, you’re going back to his word against his word. I wasn’t there when he held the knife.
“[PROSECUTOR]: What do you do in situations when it’s his word against his word?
“[JUROR]: That’s where evidence comes in.
“[PROSECUTOR]: How about some of the things that other people discussed earlier, such as Mr. Carlson and Miss Gil and some other people, on deciding who is telling the truth and who is not telling the truth? Can you look at that?
“[JUROR]: Me, personally? No.
“[PROSECUTOR]: Why not?
“[JUROR]: I prefer to use my common sense and logic and evidence.”
The prosecutor did not ask Ms. Burroughs any questions.
After challenges for cause, the prosecutor and defense counsel each exercised their first peremptory challenges. The prosecutor then exercised his second peremptory challenge to excuse Ms. Burroughs. At that point, defense counsel made a motion pursuant to Wheeler and Batson. He told the court that both defendant and Ms. Burroughs were African-American, and asserted that Ms. Burroughs said nothing to indicate any bias against either side or any reason that she could not be fair.
The court initially commented that it did not realize that defendant was a “[B]lack man because he doesn’t give that appearance immediately.” (Defendant is described by defense counsel as a “lighter-skinned [B]lack man.”) The court then stated: “I certainly don’t see a prima facie showing of racial discrimination when it’s the second person and it happens to be a [B]lack woman. I don’t think—that certainly doesn’t establish a prima facie that he’s excusing based on race.”
After the defense exercised a second peremptory challenge, the prosecutor accepted the panel as constituted. When the excused juror was replaced, the prosecutor again accepted the panel. Defense counsel exercised his third peremptory challenge.
After new prospective jurors were called to the panel and questioned, the prosecutor exercised his third and fourth peremptory challenges and defense counsel exercised his fifth and sixth peremptory challenges. The prosecutor then exercised his fifth peremptory challenge to excuse Mr. Jackson. At that time, defense counsel made a second Wheeler/Batson motion. The motion was denied.
After defense counsel exercised his seventh peremptory challenge, the prosecutor accepted the jury as constituted. Defense counsel then exercised his eighth peremptory challenge.
After additional jurors were called to replace those who had been excused and a recess was called, the court allowed defense counsel to make a record concerning his Wheeler/Batson motion. The following then took place
“[DEFENSE COUNSEL]: Yes, sir. And as I said before, Mr. Jackson is a [B]lack man, and I’m concerned about the racial makeup of our jury in that it reflects the community and be a jury of [defendant’s] peers. My objection is based on Batson-Wheeler, although those are the older cases. The newer case is Miller-El [v. Dretke (2005) 545 U.S. 231].
“Mr. Jackson was—the plaintiff has used five peremptories, two of which were [B]lack, a [B]lack female and a [B]lack male. Mr. Jackson—and along with what I said before, Miss Burroughs—said nothing that I noted to indicate that he in any way would be an unfair juror. He’s actually an inspector for the Housing Authority. If anything, my first reaction to hearing that would be that he’s a prosecution juror. The Housing Authority is a government quasi-law enforcement organization, and so—you know, I think we have made our prima facie showing and
“THE COURT: You haven’t mentioned the fact that he’s been passing [B]lack jurors on there.
“[DEFENSE COUNSEL]: I’m sorry?
“THE COURT: Been passing peremptories.
“[DEFENSE COUNSEL]: Passing peremptories? You mean as in others are on there, and he doesn’t kick them?
“THE COURT: And you continue to exercise peremptories, which means you continue to change the dynamic of the jury by changing its composition. And I note the prosecutor has passed two or three times here, and there are—in fact, there are still [B]lacks on there.
“[DEFENSE COUNSEL]: Right. You finish your thought?
“THE COURT: I’m just—I still don’t see a prima facie showing of a pattern here, because he hasn’t been just systematically excusing [B]lacks from the jury. It does not appear that way to me, especially since he’s been passing, still having [B]lack members of the jury. And you continue to change the composition, which I can’t fault a trial attorney for trying to maintain a composition on a jury that he thinks is favorable. So I don’t see that prima facie showing.
“You started this with the very first person who was [B]lack being excused, and that certainly isn’t showing a pattern.
“[DEFENSE COUNSEL]: But that’s not—that’s not what Miller-El calls for. I believe the Court is still using the old Wheeler analysis instead of the newer Miller-El analysis.
“THE COURT: I’m old.
“[DEFENSE COUNSEL]: One is that a single perempt can count, especially when there’s an inquiry or we look at the person who was kicked and that they haven’t said anything to indicate—I mean, if the person who was kicked said, you know, ‘I hate cops’ or ‘Put a cop on the stand, I’m not going to believe what they have to say,’ and then they are rehabilitated, something like that—we didn’t have anything close to that on Miss Burroughs, nor did we have that with Mr. Jackson, and that’s why—I mean, if you’re looking for a pattern, I don’t think Miller-El calls for that. I don’t think that’s the law anymore.
“Next, as far as passing, now I understand what you’re saying. What you are saying is that our makeup right now is we have one [B]lack juror on the panel
“THE COURT: Are you sure we only have one?
“[DEFENSE COUNSEL]: (Redacted). And not that—I’m not an ethnicity expert.
“THE COURT: I’m not either, but apparently that’s part of my job—is I have to know what somebody’s racial makeup is in order to exercise my job.
“[DEFENSE COUNSEL]: I agree.
“THE COURT: They don’t teach this in law school.
“[DEFENSE COUNSEL]: And that is
“THE COURT: I’m not sure. Is Miss Rocke [B]lack?
“[DEFENSE COUNSEL]: My guess on Miss Rocke is I believe she’s Filipino. Her first name is Delores. I believe Rocke is probably her married name. And the reason that I—that’s—she appears to be darker Asian, has a Spanish first name, which again, not being an expert in all ethnicities, tells me she’s Filipino. (Redacted) could potentially be a light-skinned [B]lack man. I would concede that. In that case, we have two.”
The court asked the prosecutor if he wanted “to say anything with regards to why [he] exercised a perempt on Mr. Jackson,” and the prosecutor declined, but said he would if “the Court wants [him] to.”
The prosecutor thereafter exercised two more peremptory challenges (which were not questioned by defense counsel) and defense counsel exercised one more peremptory challenge before both sides accepted the jury as constituted.
2. Analysis
A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the state constitutional right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Stevens (2007) 41 Cal.4th 182, 192; Cal. Const., art. I, § 16.) In Batson, the United States Supreme Court held that such practices also violate the defendant’s right to equal protection under the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 88; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.) “The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
“There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial [or gender] exclusion” by offering permissible race-neutral [or gender-neutral] justifications for the strikes. [Citations.] Third, “[i]f a race-neutral [or gender-neutral] explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful... discrimination.” [Citation.]’ [Citation.] The same three-step procedure applies to state constitutional claims. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) In this case, we are concerned only with the first step.
“In establishing a prima facie showing, a defendant has the burden of demonstrating that the facts and circumstances of the case raise an inference that the prosecutor excluded prospective jurors based on race. [Citation.] In making such a showing, a defendant should make as complete a record of the circumstances as is feasible. [Citation.]” (People v. Hawthorne (2009) 46 Cal.4th 67, 79.) The fact that the prosecutor exercises a peremptory challenge to excuse a prospective juror who is a member of the same protected class as the defendant is insufficient by itself to establish a prima facie case of discrimination. (People v. Hamilton (2009) 45 Cal.4th 863, 899; People v. Kelly (2007) 42 Cal.4th 763, 780; People v. Adanandus (2007) 157 Cal.App.4th 496, 503-504.)
In deciding whether defendant established a prima facie case of discrimination, we consider the entire record before the trial court. (Bonilla, supra, 41 Cal.4th at p. 342.) “Though proof of a prima facie case may be made from any information in the record available to the trial court, we have mentioned ‘certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly,... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citations.]” (People v. Bell (2007) 40 Cal.4th 582, 597.)
When it is unclear from the record whether the court applied the “reasonable inference” of discrimination standard, we review the record independently to determine whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. (People v. Bell, supra, 40 Cal.4th at p. 597.)
Defendant contends the trial court’s references to the absence of a “pattern” indicate that the court applied an incorrect standard. Defendant is correct that the exclusion of a single juror on the basis of race or ethnicity violates the state and federal Constitutions. (People v. Silva, supra, 25 Cal.4th at p. 386.) However, although a pattern of discrimination need not necessarily be shown in order to establish such violations, the existence or nonexistence of a pattern is still a relevant consideration for the court in determining whether a violation occurred. As the California Supreme Court explained: “To be sure, the ultimate issue to be addressed on a Wheeler-Batson motion ‘is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.’ [Citation.] But in drawing an inference of discrimination from the fact one party has excused ‘most or all’ members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the party’s challenges. Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case,... to make a prima facie case after the excusal of only one or two members of a group is very difficult.” (People v. Bell, supra, 40 Cal.4th at p. 598, fn. 3, italics added; see also Batson, supra, 476 U.S. at pp. 96-97 [the trial court should consider all relevant circumstances, including whether “a ‘pattern’ of strikes against [B]lack jurors included in the particular venire might give rise to an inference of discrimination”]; People v. Howard (2008) 42 Cal.4th 1000, 1018, fn. 10 [“the existence of a discernible pattern in the use of challenges remains a factor a court may consider when determining whether a prima facie showing has been made”].)
Defendant contends he established a prima facie case of discrimination based upon the following: (1) the prosecutor used peremptory challenges (out of seven total peremptory challenges) to exclude two members of a protected class (African-Americans) of which defendant is a member; and (2) the prosecutor did not question Ms. Burroughs and did question other jurors. Based on the totality of circumstances, we do not believe these facts support a prima facie case of prohibited discrimination.
Defendant asserts that the relevant statistic is two challenges out of five. This is apparently based upon the fact that his second Wheeler/Batson motion was made after the fifth peremptory challenge, before making his last two peremptory challenges.
In Bonilla, the prosecutor used peremptory challenges to strike the only two African-Americans in the 78-person juror pool. (Bonilla, supra, 41 Cal.4th at p. 342.) The Supreme Court held that the defendant failed to make a prima facie showing of discrimination. (Ibid.) It explained: “It is true the prosecution used peremptories to challenge both African-Americans in the pool, but the ‘small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible....’ [Citations.]” (Id. at pp. 342-343.) Here, there is not only a “‘small absolute size of this sample,’” but the prosecution did not strike all African-Americans from the jury. (See also People v. Bell, supra, 40 Cal.4th at pp. 597-598.) Although the record is not perfectly clear, it appears that at least one, and possibly two, of the jurors on the jury panel were African-American.
The fact that defendant is an African-American and, therefore, a member of the racial group that the prosecutor was purportedly attempting to exclude, does not carry the weight here that it might in another case. It appears from the record that defendant was not easily recognizable as an African-American. Neri, who observed defendant closely inside the store, as well as one of the officers involved in the vehicle pursuit, initially described defendant as Hispanic. In a later report, Neri described him as “[B]lack.” At trial, it appears that she could not identify his ethnicity as she looked at him in the courtroom. Even the judge did not know that defendant was an African-American until defense counsel informed him of that fact. To the extent that an inference of discrimination might be supported by the fact that the prosecutor is excluding people of the same race as defendant, the fact that defendant does not appear to some to be African-American tends to weaken support for such an inference.
When she was asked at trial, “When you look at him right now, what would you say that his ethnicity is?,” she provided an inaudible response. She was then asked, “Are you having a tough time?,” to which she responded, “Yeah.”
Any possible inference of discrimination that could follow from the striking of two African-Americans is further weakened by the fact that the prosecutor accepted the panel on two occasions while Mr. Jackson was on the panel and, possibly, the other one or two African-Americans as well. It was only when defense counsel used additional peremptory challenges to change the dynamic of the jury that the prosecutor excused Mr. Jackson. The willingness to keep at least Mr. Jackson on the jury (and possibly one or two other African-Americans) after excusing Ms. Burroughs suggests that race was not a factor in excusing her. (See People v. Lenix (2008) 44 Cal.4th 602, 629 [prosecutor’s acceptance of the panel containing a Black juror strongly suggests that race was not a motive in exercise of peremptory challenge]; People v. Turner (1994) 8 Cal.4th 137, 168 [keeping Black jurors on the panel “is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection”], overruled on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
Because some trial juror’s names are redacted in the reporter’s transcript, the record is not clear whether the one or two other African-Americans were on the jury panel at the time the prosecutor initially accepted the panel.
As to Mr. Jackson, his responses to the prosecutor’s questions support a legitimate, nondiscriminatory reason for his eventual exclusion from the jury. The prosecutor’s case was based heavily upon testimonial evidence. In responses to the prosecutor’s questions, Mr. Jackson expressed some reluctance, if not unwillingness, to convict someone based solely on testimonial evidence. Based upon these responses, it was reasonable to understand why the prosecutor would want to excuse him. Therefore, the use of a peremptory challenge against him does not give rise to any inference of discrimination.
Ms. Burroughs was the subject of the prosecutor’s second peremptory challenge. The record does not indicate why the prosecutor did not ask Ms. Burroughs any questions before excusing her from the jury. However, during the defense counsel’s voir dire, Ms. Burroughs expressed her view that the allegations against defendant were “a lot of charges and a lot of numbers” and wondered “why did it apply to this....” This response suggests that Ms. Burroughs may well have believed that the district attorney was overcharging defendant for “this”—i.e., what might appear to someone to be little more than a petty theft from a department store. The response thus indicates a potential bias against the prosecution. This potential bias, as well as other facts discussed above—such as the prosecutor’s acceptance of the panel with Black jurors (including, initially, Mr. Jackson), the lack of a pattern of peremptory strikes against Black prospective jurors, and the failure to show a disproportionate use of peremptory challenges against Black prospective jurors—supports the trial court’s conclusion that defendant failed to establish a prima facie case of discrimination. Accordingly, we reject defendant’s Wheeler/Batson argument.
B. Sufficiency of the Evidence
Defendant contends the evidence is insufficient to sustain the convictions for theft and burglary. We disagree.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’ [Citation.] ‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Theft by larceny requires the taking of personal property from the owner’s possession without consent, asportation of the property, and an intent, without claim of right, to deprive the owner of the property permanently. (People v. Gomez (2008) 43 Cal.4th 249, 254-255; Callan v. Superior Court (1962) 204 Cal.App.2d 652, 667.) Burglary requires proof of entry into certain structures with the intent to commit larceny or any felony. (People v. Tafoya (2007) 42 Cal.4th 147, 170; § 459.) “[T]he existence of the requisite intent is rarely shown by direct proof, but may be inferred from facts and circumstances. [Citation.] Evidence of theft of property following entry may create a reasonable inference that the intent to steal existed at the moment of entry.” (In re Matthew A. (2008) 165 Cal.App.4th 537, 540-541.)
Defendant contends there was insufficient evidence to establish the taking, asportation, and intent elements of larceny. He points out that Wilson was not observed taking any property out of the store and argues that Neri’s testimony that Wilson entered the fitting room with clothing, came out of the fitting room without some of the clothing, and her bag thereafter appeared to be fuller, is insufficient to prove theft. Because the evidence was insufficient to support theft, he asserts, there was insufficient evidence from which jurors could infer the intent required for burglary.
Based upon the whole record, in light of our standard of review, we hold that the evidence is sufficient to support the verdicts. During defendant and Wilson’s visit to the Kohl’s store a few days before July 11, 2005, they placed a pair of shoes in Wilson’s bag and, while Wilson waited in the shoe department, defendant paced back and forth near the entrance of the store. When defendant returned to the shoe department, Wilson removed the shoes from her bag and the two left the store. Such behavior supports an inference that the two shared an intent to steal from Kohl’s at that time, but decided not to go through with the plan.
A few days later they entered the store with the same bag. The jury viewed a surveillance video that showed the two walking throughout the store and behaving suspiciously, including huddling together over their shopping cart and Wilson’s bag just before entering the fitting rooms. Wilson picked out items of clothing that she could not physically wear. Although she could have picked out the clothes for someone who could fit into them, she would then have no reason to take them into the fitting room, particularly when she could have left the clothes with defendant, who was waiting with the cart outside the fitting room. Yet, with defendant’s help, she took the clothes and her bag into the fitting room. When she came out of the fitting room, she no longer had some of the clothes, but her bag was fuller than when she went in. The jury could reasonably infer from this that some or all of the missing clothes were now in Wilson’s bag and that Wilson put them there. In addition, other clothes that Wilson took into the fitting room were placed back in the shopping cart, which was abandoned inside the store minutes later. The fact that Wilson brought clothes out of the fitting room that she did not intend to purchase suggests that she did not leave clothes in the fitting room; she either put the clothes back into the shopping cart or into her bag. These inferences are strengthened by the fact that Wilson walked to the cash register holding money in her hand to pay for the one item she purchased, thereby avoiding the need to open her bag and risk exposing its contents to the cashier.
Significantly, while Wilson waited for a cashier, defendant went to get the truck and pulled into a red zone in front of the store, even though the truck had been parked only five spaces away from the front entrance. This suggests an intent to make a quick getaway upon Wilson’s exit from the store. Although it might also suggest that the two were simply in a hurry to get somewhere, their leisurely and meandering path through the store, as shown on the video surveillance tape, did not suggest any urgency to get somewhere. Additionally, Wilson’s jump into the bed of the truck upon being confronted by Neri and defendant’s flight from police indicates consciousness of guilt. (See People v. Mason (1991) 52 Cal.3d 909, 942-943; see also People v. Moody (1976) 59 Cal.App.3d 357, 363 [an intent to commit theft at the time of entry may be inferred from flight from the premises].)
Finally, the jury could have reasonably found that the statement defendant made to police after his arrest that Wilson, not he, was driving the truck away from Kohl’s was false. Indeed, he admitted it was false at trial. Such falseness on a material point is additional evidence of a consciousness of guilt which “may strengthen inferences of guilt arising from other facts.” (People v. Turner (1948) 86 Cal.App.2d 791, 801; see also Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1842.)
Although any of the evidence discussed above might not, if viewed separately or in isolation, be sufficient to sustain the convictions for theft and burglary, based upon the whole record, we hold that such evidence, taken together, is sufficient to support the verdicts.
C. Marsden
Defendant contends the court prejudicially erred by failing to conduct a Marsden hearing after defendant indicated that he wanted to move for a new trial on the ground that his counsel had been ineffective. The People do not dispute that the court erred, but assert that the error was harmless. We agree with defendant.
1. Factual and Procedural Background
Defendant was represented at trial by appointed counsel Addison Steele. At a postconviction hearing on August 17, 2007, an attorney who was standing in for Steele informed the court that defendant indicated to him that defendant wanted “to go in pro[.] per[.] in his case. The issue would be the filing of a new trial motion, which could allege ineffective assistance of counsel.” The attorney requested that the court appoint new counsel for defendant “for the limited purpose of consulting with [defendant] on the issue of a new trial.” The court agreed, stating: “The Court will appoint the conflicts panel as to the issue of whether or not to file a motion for new trial based on inadequacy of counsel.” The court did not ask defendant for his reasons for believing that his counsel was ineffective or why he wanted to represent himself.
At a hearing on January 4, 2008, James Teixeira appeared for defendant. Defendant was present in court. Teixeira informed the court that his office “was appointed for the limited purpose of filing a motion for a new trial.” However, according to Teixeira, defendant “is using the wrong vehicle. And what he should be doing instead is filing an appeal in the matter, because the subject matter which he wants to pursue is [sic] motion for new trial does not fall in the parameters or ramifications of Penal Code [section] 1181.” Teixeira added: “I know [defendant]... has had some problems with Mr. Steele, but he can address those issues.” The court did not give defendant an opportunity to speak. The court set a date for a further hearing and ordered both Teixeira and Steele to be present.
At the next hearing, on January 18, 2008, only Steele appeared for defendant. Steele explained that he had informed Teixeira that he believed that ineffective assistance of counsel was an issue for appeal, but that it was not a basis for a new trial motion under Penal Code section 1181. Steele further stated that, “right now I think [defendant] does not have conflict counsel. I think that they simply came off the case. [¶] I do know this much. I know that [defendant] wants conflict counsel to file a [Penal Code section] 1181... [based upon] ineffective assistance.... [I]f you are going to appoint them, I would have then declared a conflict for the limited purpose of that motion, retaining the case because in the end, I’ll be the sentencing lawyer.”
The court told Steele that Teixeira had been relieved because Teixeira did not find a basis for a new trial. The court further stated that they were now “pending for sentencing.”
Steele told the court that he needed some information from the prosecutor to complete a Romero motion, and added: “I think [defendant] is going to want to talk to you about providing a conflict attorney, but I’ll leave that to [defendant].”
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Defendant said, “If it’s okay.”
The court stated: “Hold on a minute.” After a comment from the court clerk, the court added: “Like I said, Teixeira came in and indicated there was no basis for a new trial motion. So it’s not pending for that anymore. I gave him a lawyer. He looked at it. And he said no. And so I replied [sic] on that representation.”
Steele then said, “All right. I think it’s [defendant’s] turn. Let [defendant] take a turn.”
Defendant then told the court: “Teixeira’s office said they had a conflict with me. Now, they said there’s still 1200 transcripts. They’re saying they haven’t got them. In order for me to make a proper showing of Mr. Steele ineffective [sic]. I would like to review the transcript[.] [T]hat’s the only way I can present a proper motion that would be simplified. And I know I have those issues. [¶] Now, if it is okay with you, and I’ll wait until 3:00 o’clock, without the attorney, and the District Attorney, I will address those issues with you. I feel I have ineffective [sic]. I can present that and I need to make a showing of that for my issues.”
The court responded: “So I’ll give you one week and we’ll go to sentencing.” When the deputy district attorney told the court that the prosecutor would be on vacation then, the court responded: “This case was tried in May of last year, that’s seven months ago. It’s been pending for sentencing for seven months, that’s simply long enough. [¶] We’ve had counsel on it to look at it for purposes for a new trial done. I think we’ve done everything we can. We’re going to go to sentencing. We’ll go to sentencing next Friday.”
At that point, defendant inquired: “Your Honor, can I represent myself? I would like to incorporate my Faretta rights.”
Faretta v. California (1975) 422 U.S. 806 (Faretta).
The court said, “No.”
At the next hearing, on February 13, 2008, Steele and conflict panel attorney Charles Kenyon both appeared for defendant. Steele said that he was representing defendant with respect to a Romero motion. Kenyon stated that he was contacted by Teixeira and had reviewed the file for purposes of evaluating the effectiveness of counsel and grounds for a new trial. Based upon his review, Kenyon opined that “there were no issues that amounted to ineffective assistance of counsel or anything that warrants a new trial....” The court set a new date for the sentencing hearing.
On February 20, 2008, the court denied the Romero motion presented by defendant’s counsel and pronounced sentence.
2. Analysis
“[C]riminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel. However, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney.” (Marsden, supra, 2 Cal.3d at p. 123.) Because the “court cannot thoughtfully exercise its discretion... without listening to [a defendant’s] reasons for requesting a change of attorneys,” the court must give the defendant who requests a substitution of counsel an opportunity to explain the reasons for seeking new counsel. (Id. at pp. 123-124.) “[T]he 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. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) This right to be heard and to give reasons for requesting a change of attorneys exists both prior to conviction and postconviction. (People v. Smith (1993) 6 Cal.4th 684, 692-693.)
The duty to conduct a Marsden inquiry arises when the defendant gives “at least some clear indication... that he wants a substitute attorney.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8; see also People v. Nakahara (2003) 30 Cal.4th 705, 718.) A statement by a defendant that he wants to file a motion for a new trial based upon the ineffectiveness of his trial counsel is sufficient to put the court on notice of a request for a Marsden hearing. (People v. Mendez (2008) 161 Cal.App.4th 1362, 1367; People v. Mejia (2008) 159 Cal.App.4th 1081, 1086.) The court does not satisfy its duty to conduct the requisite inquiry by appointing new counsel to determine whether there is a basis for a new trial based upon the ineffectiveness of counsel. (People v. Mendez, supra, at pp. 1367-1368; People v. Eastman (2007) 146 Cal.App.4th 688, 695.) The court must permit defendant to articulate his causes of dissatisfaction and, if any of the reasons suggest ineffective assistance, ascertain whether counsel is in fact rendering effective assistance. (People v. Mendez, supra, at p. 1367.) The court must also “‘make a record sufficient to show the nature of [a defendant]’s grievances and the court’s response to them.’ [Citation.]” (Id. at p. 1368.)
Under Faretta, supra, 422 U.S. at page 807, a criminal defendant has a constitutional right to represent himself at trial. If a defendant makes a request to represent himself a reasonable time before trial, the trial court must grant the request if certain conditions are met. (See also People v. Welch (1999) 20 Cal.4th 701, 729.) When the request for self-representation is made after trial and before sentencing, the request is timely if it is made a reasonable time prior to the commencement of the sentencing hearing. (People v. Miller (2007) 153 Cal.App.4th 1015, 1024.) When a defendant makes an untimely request to represent himself, the request is “addressed to the trial court’s sound discretion.” (People v. Doolin (2009) 45 Cal.4th 390, 453.) In that situation, the “Marsden principles apply,” and the defendant must be given an opportunity to explain his desire to represent himself. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1049 [Fourth Dist., Div. Two].)
Here, defense counsel informed the court that defendant wanted “to go in pro[.] per[.] in his case” for the purpose of filing a new trial motion based upon ineffective assistance of counsel. Later, his trial counsel stated defendant wants “conflict counsel to file a [motion for new trial based upon] ineffective assistance.” Still later, defendant referred to his Faretta rights. As the People point out, the record is not perfectly clear as to whether defendant was seeking the appointment of new counsel or to represent himself. The People concede, however, that in either situation the statements by defense counsel regarding defendant’s desire to file a new trial motion based upon the ineffectiveness of counsel triggered the court’s duty to permit defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.
Neither defendant nor the People assert that defendant was making a timely Faretta motion—that is, a motion made a reasonable time prior to sentencing—as distinguished from an untimely Faretta motion. (See People v. Miller, supra, 153 Cal.App.4th at pp. 1022-1024.) Therefore, we do not address that possibility.
Instead of making the requisite inquiry or giving defendant an opportunity to explain his assertion of ineffective assistance, the court appointed counsel for the limited purpose of determining whether grounds for a new trial existed based upon inadequacy of counsel. The conflict counsel subsequently informed the court of his opinion that no such grounds existed. The court accepted the representation of counsel without any inquiry of the counsel as to the basis for this opinion.
Our facts are similar to the facts in Mendez. In that case, after defense counsel informed the court that the defendant was making a new trial motion based on the competency of counsel, the trial court appointed counsel for the defendant “‘for the sole purpose of investigating as to whether or not there appears to be a basis for a motion for new trial based on incompetency of counsel....’” (People v. Mendez, supra, 161 Cal.App.4th at p. 1366.) The new counsel subsequently reported that any issues regarding possible ineffective assistance of counsel “were not ‘appropriate at this time for a motion... on that basis.’” (Ibid.) The trial court then terminated the counsel’s appointment and assigned the case back to the defendant’s trial attorney. (Ibid.) The Court of Appeal held that this was error. In language equally applicable here, the court explained: “Although [the defendant’s] grievance ‘about the adequacy of appointed counsel’ suggested ineffective assistance within the scope of Marsden, the trial court failed to conduct an inquiry but instead appointed new counsel to determine whether there was ‘a basis for a motion for new trial based on incompetency of counsel.’ [Citation.] However, the trial court ‘cannot abandon its own constitutional and statutory obligations to make the ultimate determination.’ [Citations.] Here, the trial court simply listened to new counsel’s ‘opinion’ that there were no ‘issues involving a possible ineffective assistance of counsel claim’ and, with no inquiry at all, assigned [the defendant’s] defense ‘back to his trial counsel.’” (Id. at pp. 1367-1368.)
As noted above, the People concede error, but assert that the error was harmless. When, as here, there is a failure to comply with the requirements of Marsden, the error compels reversal unless the record shows the error was harmless beyond a reasonable doubt. (People v. Chavez (1980) 26 Cal.3d 334, 348-349.) Again, Mendez is instructive. In that case, the court stated that there was “‘no doubt’” the error was prejudicial. (People v. Mendez, supra, 161 Cal.App.4th at p. 1368.) The court explained: “Here, we cannot determine whether he had a meritorious claim of ineffective assistance, but that is not the test. Had the trial court complied with Marsden’s requirements, [the defendant] ‘might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel.’ [Citations.] ‘We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant’s conviction.’ (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].)” (Ibid.; see also People v. Eastman, supra, 146 Cal.App.4th at p. 697 [because the court did not know what the defendant “might have shown had he received a full hearing on his Marsden motion, we cannot say the error was harmless”].) This is equally true here. Accordingly, we will reverse.
The Third Division of this court has held that the failure to hold a Marsden hearing under similar circumstances is reversible per se. (People v. Kelley (1997) 52 Cal.App.4th 568, 580; see also People v. Winbush (1988) 205 Cal.App.3d 987, 991 [“Marsden error is typically treated as prejudicial per se”].) However, courts have held that a failure to grant an untimely Faretta motion is subject to the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Rivers, supra, 20 Cal.App.4th at pp. 1050-1051; People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.) We conclude that the error requires reversal under any standard.
III. DISPOSITION
The judgment is reversed. Following remand, the trial court shall determine whether defendant desires to represent himself or have new counsel appointed to represent him. If defendant desires to have new counsel appointed, the court shall conduct a Marsden hearing; if the court denies the motion for new counsel (or, if new counsel is appointed and a new trial motion is either not made or is denied), it must reinstate the judgment. If defendant desires to represent himself, the court shall conduct a Faretta hearing to determine whether defendant should be permitted to represent himself in connection with a motion for new trial; if the court denies the Faretta motion (or grants the Faretta motion and a new trial motion is either not made or is denied), the court shall reinstate the judgment.
NOT TO BE PUBLISHED
We concur: McKinster, Acting P.J., Richli, J.