Opinion
F039516.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. LAFAYETTE FRIERSON, SR., Defendant and Appellant.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stephen G. Herndon and James Ching, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Lafayette Frierson, Sr., was convicted by a jury of burglary (Pen. Code, § 459) and receiving stolen property ( § 496, subd. (a)). Appellant admitted an allegation that he had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court subsequently sentenced appellant to a total prison term of five years.
All further references are to the Penal Code unless otherwise indicated.
On appeal appellant contends that his trial counsel was ineffective for failing to more extensively cross-examine a witness about her identification of appellant, and that the trial court erred in hearing and denying his Marsden motion, in sentencing appellant in his absence, and in failing to stay his receiving stolen property sentence pursuant to section 654. We agree that appellants sentence for receiving stolen properly must be stayed; however, we find appellants remaining contentions without merit.
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.
FACTS
During the late evening hours of March 30, 2000, Angie Valenzuela and her daughter, Angie Gonzalez, were watching television in their apartment. At approximately midnight, they heard a noise and got up to investigate. Valenzuela recalled seeing a man she later identified as appellant on the patio of her neighbors, Jacqueline Williams, apartment. The man was hitting Williamss window with a stick. She heard appellant break into the apartment and called 911. While on the telephone with the dispatcher, Valenzuela described the man as wearing dark pants and a white shirt. Valenzuela testified, however, that she recalled the man wearing jeans and a black and white striped shirt. When appellant exited the apartment, he passed within feet Valenzuela. As he walked by, appellant said "that bitch owes me money." Valenzuela noticed appellant was carrying a stereo in his hands when he walked by.
Gonzalez also saw the man as he was breaking into the apartment. She recalled that the man was African American, had a thin build, was tall, and had a small amount of hair and a little mustache. Gonzalez was initially unable to make an in-court identification of appellant as the burglar. At the conclusion of her testimony the court took a short recess. After the recess, Gonzalez was recalled to the stand and identified appellant as the burglar. She stated she did not recognize appellant initially because his mustache was different than it was on the night of the burglary.
Officer John Hustedde responded to a burglary call shortly after midnight. At 12:06 a.m., Hustedde spotted appellant, an African American male, wearing blue jeans and a white T-shirt with stripes, running across the street with a stereo in his hands. Appellant stopped running when he spotted the officer. Hustedde asked to speak with appellant and he complied. Appellant told the officer he was coming from his house and that the stereo belonged to him. Hustedde believed appellant matched the description of the burglary suspect and detained appellant so the officer could obtain a witness identification.
Valenzuela, Gonzalez, and Williams testified that they were taken to a location a short distance away to identify a suspect. Both Valenzuela and Gonzalez identified appellant as the burglar. Williams, who was not home at the time of the burglary, identified the stereo as belonging to her. Additionally, Williams stated that she knew appellant because his cousin is the father of her child.
Officer Keith Kobashi interviewed appellant after he was arrested. Appellant told Kobashi that he had been at his cousins house on the night in question and left to buy some beer. While he was walking back to his cousins house, appellant saw a Hispanic male and an African American male by the corner where he was arrested. Appellant walked to the corner and saw a stereo sitting on the ground. Although he knew the stereo was probably stolen, he took it because it was too good to pass up. At that point, the officer stopped him.
Defense Case
Appellant testified in his own defense. He claimed that on the day in question he had donated plasma and then went to his grandmothers house. Appellant stated he was wearing light blue jeans and a beige and blue striped shirt. Subsequently, he went to his cousins house and played video games and then returned to his grandmothers house. At approximately 11:00 p.m., appellant left his grandmothers house to buy some beer. He walked to a taco restaurant and bought two tacos and then purchased two beers at a market. Appellant ate the tacos and drank the beer while walking home.
While walking back he saw two men by the corner. One was Hispanic and the other was African American. As he crossed the street with only a beer in his hands, Hustedde stopped him and asked him where he was going. Appellant set the beer he was holding down on the street. Appellant told the officer he was coming back from the store. As appellant described where certain individuals lived, the officer noticed the stereo on the ground and assumed he had taken it. Appellant claimed at trial that he never handled the stereo, denied that he told Hustedde that it was his, and denied telling Kobashi that he picked it up from the street even though he thought it was likely stolen.
DISCUSSION
I. Appellants counsel was not ineffective.
During trial, Gonzalez testified regarding the burglary. When asked by the prosecutor if she recognized the man who broke into the apartment in court, she stated "I dont think so." After the conclusion of Gonzalezs testimony, the court took a recess. Shortly thereafter, the prosecutor returned to the courtroom and explained that Gonzalez had approached him during the break and told him that she recognized appellant as the man who burglarized the apartment. According to the prosecutor, he questioned Gonzalez regarding why she did not identify appellant during her testimony. Gonzalez told the prosecutor that she was nervous or scared while she was on the stand. As a result of this conversation, the prosecutor sought permission to recall Gonzalez to the stand.
Defense counsel objected, arguing that Gonzalez had an adequate opportunity to identify appellant when she testified. Furthermore, counsel argued that Gonzalezs additional testimony would be cumulative, as Valenzuela identified appellant in court and both Valenzuela and Gonzalez identified appellant at the scene. In addition, counsel claimed that it would be unfair to give the prosecution "a second bite at the apple" regarding the identification issue. The trial court noted that due to Gonzalezs age it was understandable that she would be intimidated in a courtroom setting and permitted the prosecutor to recall Gonzalez. Defense counsel noted that he might want to call a witness who was privy to the conversation, depending upon how Gonzalez testified.
The court noted that Gonzalez was 12 years old.
When Gonzalez was recalled, she identified appellant as the man who had broken into the apartment. She stated that she did not recognize appellant when she testified the first time because his mustache was different than it was on the night in question. She also stated that she was nervous and that she was telling the truth. On cross-examination, defense counsel asked three questions. He pointed out that Gonzalez had looked around the courtroom during her initial testimony and was unable to identify the man who broke into the apartment. He then clarified that the only description Gonzalez could give of the man was that he was of a thin-to-medium build, dark skinned, had a mustache and a small amount of hair.
Appellant argues that his trial counsel was ineffective in failing to question Gonzalez regarding what happened after she left the courtroom. He claims that had counsel asked Gonzalez about any conversations that took place, and had Gonzalez answered truthfully, she "would have testified that her mother, Angie Valenzuela, had coached her in the hallway and told her that the man was in fact in the courtroom." Appellant supports this assertion by relying on evidence that was introduced during his subsequent motion for a new trial.
Barbara Brown, appellants fiancee, submitted a declaration stating that she observed Gonzalez exit the courtroom after testifying, immediately followed by the prosecutor. Brown stated that the prosecutor told Gonzalez that appellant was in the courtroom and pointed him out to Gonzalez. Subsequently, Gonzalez had a conversation with her mother about whether the burglar was in the courtroom and Valenzuela told Gonzalez that appellants weight and mustache were different. Also introduced into evidence was a declaration from Williams. She stated that after Gonzalez testified she immediately spoke to her mother and told her that the burglar was not in the courtroom. Valenzuela told her the man was sitting at the table but was thinner than he was at the time of the burglary. Gonzalez and Valenzuela had a conversation with the prosecutor and it was decided that Gonzalez would testify again.
No declarations or testimony from Valenzuela or Gonzalez were submitted in support of the new trial motion. A defense investigator submitted a declaration regarding a conversation he had with Gonzalez. According to the investigator, Gonzalez stated she remembered having a conversation with the prosecutor after she testified. However, this declaration did not indicate whether Gonzalez stated that she was coached by anyone to change her testimony. Furthermore, it did not state what Gonzalez would have testified to had she been asked about what had transpired in the hallway.
We conclude appellants counsel was not ineffective. In order to prevail on an ineffective assistance of counsel claim, appellant must demonstrate that trial counsels performance fell below the standard of reasonableness and that there is a reasonable probability the result would have been more favorable had his counsel provided adequate representation. (Strickland v. Washington (1984) 466 U.S. 687, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Bolin (1998) 18 Cal.4th 297, 333, 956 P.2d 374.) Appellant must also show that the omission was not the result of a reasonable tactical decision. (People v. Gurule (2002) 28 Cal.4th 557, 611.)
It appears that trial counsels basis for not cross-examining Gonzalez further upon recall was the result of a reasoned tactical choice. According to trial counsels testimony at the hearing on the new trial motion, he was never able to determine what had occurred in the hallway. Neither Gonzalez nor Valenzuela testified nor provided declarations regarding what happened during the recess or what they would have testified to if they had been questioned regarding the incident. Since trial counsel did not know what had transpired in the hallway, or what Gonzalez would testify to if asked, he may have made a strategic decision not to question Gonzalez about the conversations. Gonzalez testified on direct examination that she had been nervous when she initially testified. Instead of taking a chance as to what Gonzalez would say if asked what happened in the hallway, trial counsel refrained from asking about the conversation so he could argue in closing argument that Gonzalez was coached to change her testimony.
During closing arguments, trial counsel explained that Gonzalez did not recognize the burglar during her initial testimony. Then Gonzalez left the courtroom and returned a short time later suddenly able to identify appellant. From this action, counsel asked the jury to infer that Gonzalez had been coached while in the hallway. He pointed out that the jury observed Gonzalez during her testimony and stated that she never appeared nervous.
Furthermore, we conclude that it is not reasonably probable appellant would have received a more favorable outcome at trial had counsel cross-examined Gonzalez more extensively. The evidence against appellant was very strong. Both Gonzalez and Valenzuela testified at trial that they had identified appellant shortly after the incident. Additionally, Valenzuela identified appellant as the burglar in court. Appellant was apprehended with the stolen property only a few blocks from the victims residence and a few minutes after the robbery. Moreover, according to Valenzuela, appellant was wearing the same clothing as the burglar when he was apprehended. Likewise, Hustedde testified that appellant matched the description of the burglary suspect.
In addition, appellant gave three conflicting renditions of what happened that evening. He told Hustedde the stereo he was holding belonged to him and he was coming from his home where he had been all evening. After he was arrested, appellant told Kobashi that he had been at his cousins house, left to get some beer and was walking to his grandmothers house when he noticed two men by the corner. Appellant observed a stereo sitting on the ground and thought it was probably stolen, but he took it anyway because it was too good to pass up. At trial, appellant testified that he had been at his cousins house and left to go to his grandmothers house. Subsequently, he left her house to buy some beer. He walked to a taco restaurant and purchased two tacos and two beers. While walking back he saw two men by the corner. As he crossed the street with only a beer in his hands, Hustedde stopped him and asked where he was going. As appellant was describing the location of various residences in response to Husteddes query, the officer observed the stereo on the ground and assumed he had taken it. Appellant claimed at trial that he never handled the stereo, denied that he told Hustedde that it was his, and denied telling Kobashi that he picked it up from the street even though he thought it was likely stolen.
Given the state of the evidence, even if Gonzalez had testified that her mother had told her the burglar was in the courtroom after she testified, it is not reasonably probable appellant would have been acquitted of the burglary.
II.
The trial court properly heard and denied appellants Marsden motion.
Appellant makes two claims of error regarding the Marsden hearing. First, he asserts the trial court had an inherent conflict of interest in hearing the motion because it centered upon appellants claim that his trial counsel failed to adequately represent him in the motion to disqualify the trial judge. Second, he contends the trial court failed to adequately inquire into appellants reasons for wanting to discharge his counsel. We find no error.
A. The trial court was not required to transfer the Marsden hearing to another court.
After the trial court denied appellants new trial motion, appellant sought to disqualify the trial judge arguing he was biased against appellant. In response, the trial judge filed an answer to the motion, denying appellants allegations. The motion was heard by a different trial court and denied. After the motion was denied and the matter returned to the trial judge, appellant requested a Marsden hearing. During the subsequent Marsden hearing, appellant claimed his trial counsel was ineffective for failing to submit any evidence in support of the motion to disqualify the judge and for failing to file a writ after the disqualification motion was denied. After listening to appellants complaints and inquiring of trial counsel, the trial court denied the Marsden motion.
Appellant argues, without citation to authority, that the trial court had an "inherent conflict of interest" in conducting the Marsden hearing and it should have transferred the hearing to another court. He claims that, because the trial court had filed an answer to the disqualification motion, the judge could not "fairly entertain and impartially rule on appellants claims regarding the adequacy of counsels preparation and presentation" of the motion to disqualify him. We fail to see how the trial court had any conflict of interest in hearing appellants Marsden motion.
Code of Civil Procedure section 170.3 governs the procedure for filing a motion to disqualify a judge. Subdivision (c)(5) provides that no "judge who refuses to recuse himself or herself shall pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party." Appellant argues that pursuant to this subdivision, the trial court was not permitted to hear appellants Marsden motion. Not so. Subdivision (c)(5) only prevents a trial court from ruling upon the sufficiency of a partys statement of disqualification. Appellants Marsden motion did not require the trial court to make such a ruling. Appellant argued only that his counsel was ineffective for failing to provide evidence supporting the motion to disqualify the trial judge. The trial court was not called upon to pass on the sufficiency of that motion; rather, it was asked to rule only on the issue of whether appellants counsel had performed adequately in presenting the motion. Because this question did not require the trial judge to "pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party" (Code Civ. Proc., § 170.3, subd. (c)(5)), the trial court was not forbidden from hearing the motion.
We note that this case does not present, nor do we reach, the issue of whether a trial court should remove itself if it determines during a Marsden motion that trial counsel was deficient in his/her presentation of a disqualification motion. If a court were to make such a finding, it would be required to determine whether the disqualification motion would have been decided differently absent counsels deficient performance.
B. The trial court conducted an adequate inquiry into appellants claims.
A defendant is entitled to the substitution of appointed counsel if the record clearly shows that the defendant is being denied adequate assistance of counsel or the defendant and his counsel "" have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result ...."" (People v. Barnett (1998) 17 Cal.4th 1044, 1085, 954 P.2d 384, quoting People v. Memro (1995) 11 Cal.4th 786, 857, 905 P.2d 1305.) A trial court must afford a defendant an opportunity to explain and provide specific instances of inadequate performance when the defendant seeks to substitute his appointed counsel. (People v. Barnett, supra, 17 Cal.4th at p. 1086.) The courts denial of a Marsden motion will not be disturbed on appeal unless the trial court abused its discretion. (Barnett , at p. 1086.) The trial court does not abuse its discretion in denying such a motion unless the defendant has shown that failure to substitute appointed counsel would "" substantially impair" [his] right to assistance of counsel...." (Id . at p. 1085, quoting People v. Webster (1991) 54 Cal.3d 411, 435, 285 Cal. Rptr. 31, 814 P.2d 1273.)
In conducting a Marsden hearing, the trial court must "consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion." (People v. Horton (1995) 11 Cal.4th 1068, 1102, 906 P.2d 478, quoting People v. Webster, supra, 54 Cal.3d at p. 435.) The court need only "listen to and evaluate a defendants claim that counsel [is] failing to perform adequately." (People v. Memro ,supra, 11 Cal.4th at p. 859.) "Inquiry into the attorneys state of mind is required only in those situations in which a satisfactory explanation for counsels conduct or attitude toward his client is necessary in order to determine whether counsel can provide adequate representation." (People v. Penrod (1980) 112 Cal. App. 3d 738, 747, 169 Cal. Rptr. 533; accord People v. Young (1981) 118 Cal. App. 3d 959, 965-966, 173 Cal. Rptr. 700; People v. Huffman (1977) 71 Cal. App. 3d 63, 80-81, 139 Cal. Rptr. 264.)
Appellant contends the trial court failed to make an adequate inquiry into appellants reasons for wanting to discharge his counsel. We disagree. The trial court asked appellant to explain the reasons why he wanted to replace his counsel. Appellant replied that his trial counsel did not want to file a writ of mandate challenging the denial of his disqualification motion, and stated that his counsel had failed to provide all of the evidence supporting the disqualification motion. Specifically, he stated that counsel did not provide any citations in the motion and that he had failed to submit the "declaration of Angie Gonzalez and Valenzuela." When asked if there was any other reason, appellant replied "Thats it."
After appellant voiced his complaints, the trial court solicited a response from appellants trial counsel. Counsel explained that he was not planning on filing a writ because he felt it "would be a frivolous waste of court time and resources." In addition, he stated that the evidence that appellant claimed he had failed to supply was contained in the court record. Furthermore, counsel stated that he did not believe that the trial courts ruling on the disqualification motion would have been different had he provided any additional evidence. Thus, contrary to appellants assertion otherwise, it does appear from the record that the trial court inquired into appellants reasons for wanting to discharge his counsel, and counsel responded to appellants allegations. Ultimately, the court denied the motion.
We find no abuse of discretion in the trial courts ruling. The trial court inquired into appellants reasons for wanting to substitute his attorney and allowed trial counsel an opportunity to respond to appellants accusations. Appellant never demonstrated that failure to substitute his counsel would "substantially impair [his] right to assistance of counsel." (People v. Webster, supra, 54 Cal.3d at p. 435.) Therefore, the court did not abuse its discretion in denying the Marsden motion.
III. The trial court did not err in sentencing appellant in his absence.
On December 5, 2001, the court held a scheduled Marsden hearing that was to be followed by appellants sentencing hearing. At the conclusion of the Marsden hearing appellant engaged in a number of verbal outbursts. The trial court warned him he would be removed if actions continued. After three warnings from the trial court, the judge ordered appellant removed from the proceedings. Following appellants removal, the trial court continued on to the sentencing hearing. Once the prosecutor was returned to the courtroom, the trial court explained that appellant had been removed from the courtroom due to his conduct. Appellants counsel requested a continuance of the sentencing hearing due to the fact that appellant was not present and would not be able to give a statement on his own behalf. The court denied the motion noting that sentencing had been continued a number of times and almost a year had passed since the verdict."... [A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." (Illinois v. Allen (1970) 397 U.S. 337, 343, 25 L. Ed. 2d 353, 90 S. Ct. 1057, fn. omitted.)Relying on Allen, appellant contends the trial court erred in sentencing him in his absence. He claims "the court should have postponed the sentencing hearing to allow appellant the opportunity to `reclaim his right to be present at the trial as soon as he is willing to conduct himself [appropriately]. (Illinois v. Allen, supra, 397 U.S. at p. 343 ....)" We disagree.
"... Counsel would read [Allen] to mean that when [the defendant] was excluded on the fourth day of his trial, he should have thereafter been brought back at least once a day to ascertain whether he would promise to behave properly and if he did so promise, he should then have been allowed to stay in the courtroom unless, and until, his next outbreak, ad infinitum. Allen contains no such requirement." (U.S. v. Nunez (10th Cir. 1989) 877 F.2d 1475, 1477-1478; see also Scurr v. Moore (8th Cir.1981) 647 F.2d 854, 858-859 [Although telling disruptive defendant "he could return to the courtroom if he behaved properly" is a desirable procedure, "Illinois v. Allen makes no such absolute requirement. The Allen Court stated only that once the confrontation right is lost it can be reclaimed as soon as the defendant is willing to conform his behavior consistent to the decorum required in judicial proceedings."].) Appellant has cited no case, nor are we aware of any, stating that a trial court must stop proceedings immediately after a defendant has been removed from the courtroom to give the defendant an opportunity to promise to behave appropriately. Under appellants argument, the trial court would be required, in all instances, to postpone proceedings when a defendant was removed for misbehavior. Such a rule would essentially force the trial court to grant a continuance each time a defendant decided to disrupt a courtroom proceeding. Such is not the rule of Allen.
In this case it was apparent that the sentencing hearing was to follow the Marsden proceedings. Despite being warned three times that he would be removed from the courtroom if he continued to disrupt the proceedings, appellant chose to maintain this very improper behavior. The trial court thus had appellant removed from the courtroom. Appellants counsel moved for a continuance so that appellant could be present during sentencing, but even counsel noted that he was unsure "whether [appellant] might be in a calmer mood at another time ...." The trial court was not required to halt the proceedings, again delaying sentencing, once appellant absented himself from the hearing through his behavior. We find no error.
IV. The trial court erred in failing to stay appellants receiving stolen property sentence.
At the sentencing hearing, the trial court imposed a two-year term for appellants receiving stolen property conviction and ordered the term to run concurrently. Appellant contends that his sentence for receiving stolen property should be stayed pursuant to section 654 as it was incident to the same intent and objective as the burglary conviction. We agree and will order the trial court to stay the sentence on the receiving stolen property conviction.
Respondent erroneously argues that the trial court stayed appellants sentence on the receiving stolen property count. However, the record clearly reveals that the sentence on that count was imposed and ordered to run concurrently.
Respondent apparently mistakes appellants argument, as it contends that appellant may be properly convicted of both receiving stolen property and burglary. Appellant conceded in his opening brief, as he must, that a defendant may be convicted of both receiving stolen property and burglary where the convictions are based upon the same property stolen in the burglary. (People v. Allen (1999) 21 Cal.4th 846, 866, 984 P.2d 486.) Appellant argues only that his sentence for receiving stolen property must be stayed. He does not argue that the conviction was improper.
Section 654, subdivision (a), provides:"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."By its terms, section 654 applies where a person suffers from multiple PAGE CONTAINED FOOTNOTES punishments for a single criminal act or omission. (People v. Beamon (1973) 8 Cal.3d 625, 637-638, 105 Cal. Rptr. 681, 504 P.2d 905.) However, this provision also applies "when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal. Rptr. 607, 357 P.2d 839; People v. Latimer (1993) 5 Cal.4th 1203, 1208, 858 P.2d 611.)
There is no question that the burglary and receiving stolen property arose out of the same course of criminal conduct, in which appellant entered Williamss house and took her stereo. Section 654 bars multiple sentencing for separate convictions arising out of the same course of criminal conduct. Thus, appellant can be sentenced only for burglary and not receiving stolen property. (See, e.g., People v. Allen, supra, 21 Cal.4th at pp. 866-867; People v. Landis (1996) 51 Cal.App.4th 1247, 1254-1255.)
DISPOSITION
The trial court is directed to send an amended abstract of judgment to the Department of Corrections reflecting a sentence of two years, stayed pursuant to section 654, on count two, receiving stolen property ( § 496, subd. (a)). As modified the judgment is affirmed.
We concur: Dibiaso, Acting P.J., Cornell, J.