Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF3896 Richard W. Stanford, Jr., Judge.
Edward J. Haggerty, 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, William Wood, Scott C. Taylor, and Meredith Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Johnell Marquise Jackson appeals from a judgment after a jury convicted him of vehicle taking with a prior conviction, misdemeanor hit and run with property damage, and misdemeanor resisting and obstructing an officer. He argues the trial court erroneously denied his motions to replace appointed defense counsel, the court erroneously instructed the jury, and the prosecutor committed misconduct. None of his contentions have merit, and we affirm the judgment.
FACTS
Arnulfo Gonzales, Sr. (Senior), owned a mechanic shop in Bellflower, and his son, Arnulfo Gonzalez, Jr. (Junior), worked with him. Senior owned a silver Chevrolet Malibu (the Malibu) that he used as a loaner car for customers. One day in early December, a police officer called Senior and asked whether the Malibu had been stolen. As Senior had just returned from vacation, he asked Junior whether the Malibu was loaned out. Junior said it was not, he did not know the car’s whereabouts, and he thought his father had sold the Malibu because he had not seen the car since September. Senior kept the car parked on the street in front of his shop. He kept one set of keys at home and one set of keys in the car under the seat. Senior did not know Jackson and did not give him permission to use the Malibu. Junior, the only person who would have loaned the Malibu to anyone, did not know Jackson and did not give him permission to use the Malibu. He had not loaned the Malibu to anyone during November.
Officer Virginia Johnson was on patrol when she saw Jackson driving the Malibu. Johnson followed the Malibu and initiated a traffic stop when Jackson committed a traffic violation. Jackson failed to stop, and he jumped out of the Malibu, fell, rolled, and ran; a fire hydrant stopped the Malibu. Johnson pursued Jackson on foot but was outrun. She called for backup, and another officer caught Jackson.
An information charged Jackson with vehicle taking and driving with a prior conviction (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a)) (count 1), receiving stolen property (§ 496d, subd. (a)) (count 2), misdemeanor hit and run with property damage (Veh. Code, § 20002, subd. (a)) (count 3), and misdemeanor resisting and obstructing an officer (§ 148, subd. (a)(1)) (count 4). The information also alleged he served two prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, Jackson offered the testimony of Officer Brian Persons. Persons testified the Malibu showed no signs of being broken into and the ignition and steering column were intact. Persons spoke to Junior who said he had the keys to the Malibu and the last time he saw the car was in November.
Jackson also offered the testimony of a friend, Allan Cook. Cook testified he had seen Jackson driving the Malibu since October. Cook explained that one day, he helped Jackson jump start the Malibu, and he followed Jackson to a gas station where Jackson left the Malibu with a Hispanic man.
The jury convicted Jackson on counts 1, 3, and 4 but acquitted him of count 2. After Jackson admitted the prior prison term allegations were true, the court sentenced him to three years and four months in prison.
DISCUSSION
I. Marsden Motions
Jackson argues the trial court erroneously denied his pre- and post-trial motions to replace appointed defense pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), counsel because they had a complete breakdown in communication that irreparably damaged the attorney-client relationship. We will address his claims below.
A. General LegalPrinciples
“Under the Sixth Amendment right to assistance of counsel ‘“‘[a] defendant is entitled to [substitute another appointed attorney] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’”’ [Citation.] Furthermore, ‘“‘When a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.’”’ [Citation.] ‘We review the court’s rulings for an abuse of discretion.’ [Citation.] [¶] A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
1. First Marsden Hearing
On February 18, 2009, the parties agreed trial would begin on Monday, February 23, 2009. On February 23, 2009, before the trial judge called the jury, defense counsel stated Jackson wanted to make a Marsden motion. After the prosecutor left the courtroom, Jackson informed the trial judge he was not ready for trial because he wanted to interview the victim, recover his cellular telephone from the Malibu to get telephone records, and find witnesses to establish he knew the victim. When the trial judge asked Jackson why he had not raised these issues before, he replied it was because his defense counsel had only had the case 30 days and counsel was on vacation for part of that time. Jackson stated counsel said he needed more time, and now “[he is] willing to give him that time to do what he needs to do, if possible, or, you know, have another attorney.” Jackson added that they disagreed on trial tactics, and he wanted a continuance, a new attorney, or both.
The trial judge indicated that based on pre-trial discussions, defense counsel appeared to have investigated the case and was ready for trial but that he would allow counsel to speak for himself. Defense counsel stated he received the case late because the public defender had a conflict, but he was ready for trial. Defense counsel explained he informed Jackson that he would need to waive time to accomplish what he now complained he wanted done, but Jackson had refused. Defense counsel stated he had three or four conversations with Jackson concerning waiving time but he was adamant he would not waive time and he wanted his day in court. Jackson responded defense counsel was not ready for trial.
The trial judge stated because there were jurors in the hall he could not continue the case or appoint a new lawyer. The trial judge said defense counsel had subpoenaed several witnesses and prepared a defense of permissive use that would completely exonerate him if believed. The judge suggested to Jackson he cooperate with defense counsel. Jackson replied, “Okay. That’s understandable. Thank you.”
Jackson contends the trial court erroneously denied his motion because it was untimely. Although we agree untimeliness is not a basis for denying a Marsden motion (People v. Roldan (2005) 35 Cal.4th 646, 681 (Roldan), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 (Doolin)), we conclude the trial court addressed the merits of Jackson’s Marsden motion and properly denied it.
Based on our review of the trial court transcripts, it does not appear there was such an irreconcilable conflict that Jackson received ineffective representation. Before trial, Jackson repeatedly refused to waive time and exercised his right to a speedy trial. On the first day of trial, Jackson changed his mind and wanted a continuance, a new attorney or both. After the trial judge listened to Jackson’s reasoning supporting his requests, the trial judge properly concluded Jackson and his defense counsel had tactical disagreements that were an insufficient basis to appoint new counsel. Based on the trial judge’s observations of defense counsel’s pre-trial performance, the trial judge concluded defense counsel had prepared a formidable defense and that Jackson should cooperate. (People v. Cole (2004) 33 Cal.4th 1158, 1189-1190 [evidence of effective representation basis for denying request to appoint new counsel].) The trial judge properly denied Jackson’s pre-trial Marsden motion.
2. Second Marsden Hearing
At his sentencing hearing, Jackson submitted two letters to the trial judge. The first letter requested the trial judge appoint new counsel. He asserted his defense counsel was ineffective because counsel refused to take actions Jackson requested, including calling Stella Castro as a witness. The second letter was a motion for a new trial based on the grounds of insufficient evidence, newly discovered evidence, juror misconduct, and prosecutorial misconduct. After the trial judge suggested defense counsel prepare a new trial motion, and Jackson responded he would rather new appointed counsel prepare the new trial motion, defense counsel agreed his office could prepare the new trial motion and Jackson could review it. Jackson waived time for sentencing and agreed to allow defense counsel to prepare a new trial motion. The trial judge denied Jackson’s Marsden motion.
At the continued sentencing hearing, defense counsel indicated Jackson wanted to make another Marsden motion. After the court room was cleared, Jackson told the trial judge that defense counsel was ineffective for not interviewing witnesses or filing a new trial motion. Defense counsel replied his office did not file a new trial motion because he did not believe he provided ineffective assistance of counsel. The trial judge asked Jackson why he thought defense counsel was ineffective. Jackson referred the court to his letter. The trial judge reviewed the four reasons with Jackson. The trial judge asked defense counsel to address Jackson’s reasons for his new trial motion.
Defense counsel repeated he had asked Jackson to waive time for trial, but Jackson refused because he did not think the victims would appear for trial. Counsel stated that when Jackson learned the victims were present and ready to testify, he requested a continuance. Counsel stated he presented a solid defense based on the evidence he had and the procedural circumstances of the case. He added Jackson never mentioned to him a woman named Stella Castro, and in any event her testimony was cumulative. Counsel stated the victims refused to speak with him and he interviewed a potential incarcerated witness who had nothing relevant to say. The trial judge denied Jackson’s Marsden motion concluding he provided no basis to appoint new counsel to prepare a new trial motion.
Jackson claims the trial court erroneously denied his post-trial Marsden motions because the above proceedings evidence a complete breakdown in the attorney-client relationship. We disagree.
The trial judge addressed each of Jackson’s complaints regarding his defense counsel, and each of the areas Jackson thought warranted a new trial. As we explain above, much of Jackson’s complaint with defense counsel stemmed from the fact Jackson refused to waive time for trial because he hoped the victims would not testify at trial. When Jackson learned the victims were willing and ready to testify, Jackson requested a continuance, shifting the blame to his defense counsel. The trial judge addressed each of Jackson’s complaints, and based on counsel’s representations concerning his investigation, and the evidence presented at trial, the trial judge concluded there were insufficient grounds for a new trial motion, and defense counsel had provided effective assistance of counsel. Thus, the trial court properly denied Jackson’s post-trial Marsden motion as again it was merely a dispute over trial tactics and did not evidence a complete breakdown of the attorney-client relationship.
Other than his claim defense counsel was ineffective for failing to object to the prosecutor’s rebuttal argument, we note Jackson does not assert he received ineffective assistance of counsel on any other basis.
B. Sixth Amendment
Because we have concluded the trial court properly denied Jackson’s pre- and post-trial Marsden motions, we also conclude he was not denied his Sixth Amendment right to assistance of counsel. (Roldan, supra, 35 Cal.4th 646, 683 [court rejected defendant’s attempt to equate denial of Marsden motions with denial of assistance of counsel], disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421.)
II. Reasonable Doubt Jury Instructions
Jackson contends the CALCRIM reasonable doubt instructions, Nos. 220 and 222, violated his due process right to proof beyond a reasonable doubt. This same claim has been raised and rejected. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1118; People v. Stone (2008) 160 Cal.App.4th 323, 330; People v. Campos (2007) 156 Cal.App.4th 1228, 1240 (Campos); People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) He offers no compelling reasons to depart from these well-reasoned opinions. We find no error.
III. CALCRIM No. 226
Jackson asserts the trial court erroneously instructed the jury with CALCRIM No. 226 because it invites jurors to consider matters outside the record-their common sense and experience. We note appellate counsel unsuccessfully raised the same issue in Campos, supra, 156 Cal.App.4th 1228. This claim has been rejected in countless unpublished cases. Finally, the cases he relies on to support his contentions are inapposite. (Campos, supra, 156 Cal.App.4th at p. 1240 [distinguishing cases Jackson relies on].) Again, we find no error.
IV. Prosecutorial Misconduct
Jackson claims the prosecutor committed misconduct during rebuttal argument when she accused defense counsel of misstating witness testimony, and asserted it was common defense counsel strategy to blame the victim. The Attorney General responds Jackson forfeited appellate review of these issues because he did not object on the grounds of prosecutorial misconduct and request an admonishment. Jackson concedes defense counsel’s forfeiture of the issue and asserts he received ineffective assistance of counsel.
A. Forfeiture
“‘In order to preserve a claim of [prosecutorial] misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44 Cal.4th 332, 359.) Here, Jacksons’s defense counsel did not object to the prosecutor’s statements and request an admonition, and therefore, his claims are forfeited. However, Jackson also asserts his defense counsel was prejudicially ineffective. We will address his claim within that context.
B. Ineffective Assistance of Counsel
“In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel’s performance prejudiced defendant’s case in such a manner that his representation ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] Moreover, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421.)
Here, it is not reasonably probable the result of the proceeding would have been different had defense counsel objected to the prosecutor’s statements, and requested an admonition. First, a prosecutor is permitted to describe defense counsel’s interpretation of the evidence, and deficiencies in defense counsel’s tactics. (People v. Bemore (2000) 22 Cal.4th 809, 846.) The prosecutor’s isolated comments did not disparage defense counsel or bolster Senior’s or Junior’s testimony.
Moreover, there was overwhelming evidence Jackson was guilty of the two misdemeanor offenses, hit and run with property damage and resisting and obstructing an officer-Jackson collided with a fire hydrant in the Malibu and fled on foot to escape Johnson. As to count 1, vehicle taking and driving with a prior conviction, there was sufficient evidence for the jury to reasonably conclude he was guilty of this offense as well. Jackson was in possession of the Malibu, and when Johnson initiated a traffic stop, Jackson fled. Based on this evidence, the jury could reasonably infer Jackson had the specific intent to deprive the owner of possession of the Malibu. (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1577.) Indeed, Jackson does not challenge the sufficiency of the evidence on any of the counts.
Finally, the trial court instructed the jury with CALCRIM No. 200, explaining jurors must decide what the facts were based solely on the evidence presented at trial. The court also instructed the jury what the attorneys say is not evidence (CALCRIM No. 222). We presume jurors are intelligent people capable of understanding the instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
V. CALCRIM No. 1820
Jackson argues CALCRIM No. 1820, “Unlawful Taking or Driving of Vehicle, ” was argumentative because it directed the jury how to evaluate evidence of prior consent on the issue of current consent, effectively usurping the jury’s function. Not so.
“A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. [Citation.]” (Francis v. Franklin (1985) 471 U.S. 307, 314, fn. 2.) Thus, a mandatory presumption “removes an element from the jury’s consideration and thereby lessens the prosecution’s burden to prove beyond a reasonable doubt every element of the charged offense. Instructions that relieve the state’s burden violate state and federal constitutional guarantees of due process and the rights to a jury trial and proof beyond a reasonable doubt. [Citations.]” (People v. Thompson (2000) 79 Cal.App.4th 40, 59-60.)
The adequacy of jury instructions is considered by examining the charge as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677.) In assessing whether jury instructions correctly state the law, we review the instructions de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
CALCRIM No. 1820 provided the required elements for unlawfully taking or driving a vehicle. The instruction then stated: “Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on the date alleged here based on that previous consent alone.”
Preliminarily, we note this language mirrors the statutory language of Vehicle Code section 10851, subdivision (c). CALCRIM No. 1820 did not direct the jury to presume the element of lack of consent if the prosecutor proved certain predicate facts. Nor did CALCRIM No. 1820 direct the jury to consider prior consent and then forbid the jury from relying on any other fact to prove current consent. The instruction simply stated that if Senior or Junior consented to Jackson using the car weeks before, the jury could not rely on that prior consent standing alone to find they consented to Jackson using the car the day of the offense here. In other words, if there was evidence Senior or Junior consented to Jackson using the Malibu the day of the offenses here, CALCRIM No. 1820 did not prohibit the jury from making such a finding. This portion of the instruction directed the jury’s attention to the issue of whether Jackson was acting with Senior’s or Junior’s consent on a specific date.
Additionally, the trial court also instructed the jury on the presumption of innocence, the prosecutor’s burden of proof beyond a reasonable doubt, the definition of reasonable doubt (CALCRIM No. 220), and that it must consider all the instructions together (CALCRIM No. 200), and decide the facts based upon the evidence (CALCRIM No. 222). Therefore, the trial court properly instructed the jury with CALCRIM No. 1820.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.