Opinion
D057816 Super. Ct. No. SCD225807
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. ARTERIOA FARMER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Desiree A. Bruce-Lyle, Judge. Affirmed.
A jury convicted Arterioa Farmer of one count of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). The court thereafter ordered that Farmer be placed on three years' formal probation, with the condition that she serve 365 day of local custody.
Farmer appeals, asserting (1) the court erred in failing to instruct on the lesser included offense of attempted sale of cocaine base; and (2) she was denied her constitutional right to counsel and due process when the court failed to excuse the prosecutor from her Marsden hearing. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL BACKGROUND
A. People's Case
On February 23, 2010, San Diego Police Detective Simon Adams was working undercover for the Central Narcotics team in the 100-200 block of 17th Street in San Diego. That area is well known to law enforcement as having a high rate of narcotics activity, with cocaine base being one of the more prevalent drugs. At approximately 9:00 p.m., Detective Adams was walking northbound on 17th Street when he noticed a group of approximately 10 people standing next to a large tree in an area drug dealers and users were known to frequent. Farmer was sitting in a chair nearby. As Detective Adams approached, she called out to him, "What's up? What do you need?"
Detective Adams told Farmer he needed a "25," meaning he wanted to purchase $25 worth of cocaine base. Farmer turned to a man on her left, subsequently identified as George Emmons, and asked if he had a "25." Emmons replied that he only had a "20," meaning $20 worth of cocaine base. Farmer stood up and told Detective Adams to give her the money and she would get the cocaine base for him. Detective Adams handed her a prerecorded $20 bill.
Emmons was Farmer's codefendant. He pleaded guilty to selling cocaine base, but failed to appear at his sentencing hearing.
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Farmer took the money and walked southbound about 20 yards. She spoke to some people standing near a group of shopping carts. After a few minutes, Farmer turned around and returned to Detective Adams, telling him she had been unsuccessful in purchasing the cocaine base. Farmer turned back to Emmons, who was still in the vicinity of the tree, and told him he should go ahead and complete the deal. Emmons initially declined, telling Farmer to go talk to another person in a different location.
A man subsequently identified as Charles Shipman approached and told Farmer to give him the money and he would help her purchase the cocaine base. Farmer refused, insisting she would help Detective Adams, and an argument ensued. After people began to notice the argument, Emmons told Farmer to give him the money and he would complete the transaction. Farmer gave Emmons the $20.
Emmons retrieved a brown piece of paper that had been formed into a bindle and reached inside to remove three pieces of an off-white rock substance, which he placed in Detective Adams's hand. The substance was subsequently tested and identified as being 0.09 grams of cocaine base. Farmer demanded that Detective Adams give her a piece of the cocaine base in exchange for her helping him obtain it. She became increasingly agitated, so he gave her a small piece in order to preserve his undercover role, as well as his safety.
Farmer returned to her chair, pulled out a glass pipe, and began to smoke the piece of cocaine base Detective Adams had given her. At that time, Detective Adams became engaged in a dispute with Emmons concerning whether the cocaine base he had been sold was real. Still smoking her pipe, Farmer yelled at Detective Adams that it was "good shit."
Emmons and Shipman began to leave the area, so Detective Adams gave a signal to his surveillance team that he had successfully made a purchase. Emmons was arrested, and the prerecorded $20 bill Detective Adams had used to purchase the cocaine base was found in his pants pocket. Farmer was also arrested. A glass cocaine pipe was found in her purse.
B. Defense Case
Farmer testified, admitting the bulk of Detective Adams's testimony concerning the events of February 23, 2010. However, she testified that she gave Detective Adams his money back before the cocaine base sale was completed. According to Farmer, she did not know Emmons well enough to give him another person's money. She testified that Detective Adams took the money back from her and then gave it to Shipman, who in turn gave it to Emmons to finalize the sale. Farmer admitted that Detective Adams gave her a piece of the cocaine base following the purchase, which she smoked and proclaimed was "good."
DISCUSSION
I. FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE
Farmer asserts the court erred in failing to instruct the jury on the lesser-included offense of attempted sale of cocaine base. We reject this contention.
A. Applicable Legal Principles
Penal Code section 1159 provides that the jury "may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he [or she] is charged." (All further undesignated statutory references are to the Penal Code.) An offense is a lesser included offense of another for purposes of section 1159 if it meets one of the following tests: "(1) [legal element test:] the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater; or (2)[accusatory pleadings test:] if the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed." (People v. Clark (1990) 50 Cal.3d 583, 636.)
A defendant is entitled to instruction on lesser included offenses, without a request or even over objection, if the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154.) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at p. 162; see also People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 ["evidence that a reasonable jury could find persuasive"].)
The rule requiring a lesser included offense instruction if the evidence merits such an instruction avoids an unwarranted all-or-nothing choice for the jury and ensures a verdict no harsher or more lenient than the evidence merits. (People v. Breverman, supra, 19 Cal.4th at p. 155.) "[A] defendant is entitled to a lesser offense instruction . . . precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." (Keeble v. United States (1973) 412 U.S. 205, 212-213, italics omitted.)
B. Analysis
As a preliminary matter, the People assert there was no requirement that the court instruct sua sponte on attempted sale as an attempt is not a lesser included offense of a completed crime. It is true that attempt is not a true lesser included offense of a general intent completed crime because attempt is a specific intent crime and thus has an additional element. (See People v. Strunk (1995) 31 Cal.App.4th 265, 271.)
However, section 1159 provides that "[t]he jury . . . may find the defendant guilty of any offense, the commission of which is necessarily included in that which he [or she] is charged, or of an attempt to commit the offense." (Italics added.) Courts have interpreted section 1159 as requiring, as with lesser included offenses, a sua sponte duty to instruct on attempt crimes. (People v. Strunk, supra, 31 Cal.App.4th at p. 271.)
Nevertheless, there was no duty in this case to sua sponte instruct on the lesser included offense of attempted sale of cocaine base because there is no evidence to support such an instruction. The People proceeded on the theory that Farmer aided and abetted the sale of cocaine base. Thus, even if the jury believed her testimony that she did not hand the money directly to Emmons in exchange for the cocaine base, she was still guilty of sale of cocaine base. The sale of cocaine base was completed in this case. Farmer does not dispute that Detective Adams received cocaine base in exchange for cash in a sale she arranged. In fact, Farmer demanded and received some of the cocaine base Detective Adams received, which she expected as a "kind of payment" for her services in facilitating the drug deal. Thus, there was no sua sponte duty to instruct on attempted sale of cocaine base.
II. MARSDEN HEARING
Farmer asserts that she was denied her right to counsel and due process because the court failed to excuse the prosecutor from the courtroom before hearing her motion to seeking new counsel under Marsden, supra, 2 Cal.3d 118. This contention is unavailing.
A. Background
When the case was called for trial, Farmer addressed the court and asked if she could "explain something . . . ." The following discussion then took place:
"[The Court:] If your attorney agrees, you can explain something to me.
"[Farmer:] Oh, I don't want him as my attorney no more. I don't want him as my attorney no more. No more, I don't want him as my attorney, because he ain't doing nothing for me. I been in jail two months and a half. And for what? Because I smoked some with the undercover cop?
[Defense Counsel:] My position is she can talk to you freely, Your Honor. So I have no problem with that."
The court then engaged in a lengthy discussion with Farmer, explaining the charge and trial procedures. Farmer expressed irritation that defense counsel had urged her to plead guilty because she adamantly denied being involved in selling the cocaine.
During that conversation, the following exchange too place:
"[Farmer:] [Detective Adams] gave me a $20 bill to buy him a $20 rock. I didn't get him no rock because the girl didn't have it. And I brought the $20 back to him and gave it to him. And then he saw these guys, and he bought—and then he gave them the money for the dope. And they gave him the dope. These guys.
"[The Court:] And then you asked him for some of the dope?
"[Farmer:] I sat down while he purchased his stuff. I sat in a chair. And then he came over by me, and I asked him, can I have a piece? And he gave me a little bitty piece. And I hit it. And then that was it. And I went down there to go to sleep. And then he followed me down there. And then the police officer came and he arrested me."
"[Defense Counsel:] And the factual difference where the People's case differs from what [Farmer] says happened is that she actually passed the bill to the drug seller."
"[Farmer:] No, I did not."
The court thereafter told Farmer he would bring the jury up if she did not wish to plead guilty. In response, Farmer stated that she was "okay" with her current defense counsel continuing to represent her at trial.
B. Analysis
"In order to thoughtfully exercise its discretion whether to discharge present counsel, a trial court is required to listen to a defendant's complaints about his attorney." (People v. Wright (1990) 52 Cal.3d 367, 410, disapproved of on another grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) "[A] trial court's duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel." (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted.) "[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement." (People v. Hines (1997) 15 Cal.4th 997, 1025.)
It is undisputed that neither defense counsel nor Farmer ever requested that the prosecutor be excluded from the Marsden hearing. This fact dooms Farmer's claim that the court abused its discretion in failing to exclude the prosecutor from that hearing: "[A] trial court does not abuse its discretion by failing to exclude the district attorney from a hearing on a defendant's motion to dismiss his court-appointed counsel, when there is no timely request to do so and no information is disclosed about the defendant's case during the hearing to which the prosecution is not entitled, or which could conceivably lighten the prosecution's burden of proving its case." (People v. Madrid (1985) 168 Cal.App.3d 14, 16.)
Farmer asserts that she suffered prejudice as a result of the court's failing to exclude the prosecutor because she made incriminating statements during the hearing. However, there is no indication the statements Farmer made about the case during the hearing disclosed any facts of which the prosecutor was unaware. In fact, when she testified, she relayed exactly the same version of events to the jury that she stated during the Marsden hearing. Accordingly, Farmer cannot show that the prosecutor's burden of proof was somehow lightened as a result of the information disclosed by Farmer during that hearing. (People v. Madrid, supra, 168 Cal.App.3d at pp. 19-20.)
DISPOSITION
The judgment is affirmed.
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NARES, Acting P. J.
WE CONCUR:
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HALLER, J.
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McDONALD, J.