Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Gordon R. Burkhart, Judge, Super.Ct.No. SWF 10476.
Boyce & Schaefer and Robert E. Boyce for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Supervising Deputy Attorneys General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of vehicle theft (Veh. Code, § 10851) and five other related offenses. The court found true the allegations of two prior prison terms, two serious felony priors, and two strike priors. The court sentenced defendant to 27 years to life.
On appeal, defendant claims two errors: first, the trial court erred in denying his Marsden motions; second, the trial court abused its discretion by allowing the prosecution to present evidence of defendant’s prior convictions for automobile theft. We reject both contentions and affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant refers to three Marsden motions in his appellant’s reply brief. But the record only reflects two motions.
2. Facts
On the morning of January 19, 2005, Julie Eckert discovered her silver Ford truck was missing from her front driveway after she had left the truck running while getting her son and her purse from the house. After a police pursuit by vehicle and helicopter, the police recovered the truck the next day about four or five miles away. It cost Eckert almost $9,000 to repair the truck.
When the truck stopped during the police pursuit, two people exited. One person entered a nearby mobile home. The other person, later identified as defendant, got back into the truck and drove off, down an embankment, through a chain link fence, and onto a dirt road. When the deputies reached the abandoned truck, the engine was running and the driver’s door was open but defendant was gone.
The deputies tracked defendant to another mobile home, where he was hiding under a bed. The entry door appeared to have been kicked in. The deputies arrested defendant.
During the ride to the station, defendant convinced the deputies to loosen his handcuffs. Then he broke out the rear window of the patrol car and escaped. One officer located him hiding in the back of a van.
During defendant’s booking in jail, the police found 1.08 grams of methamphetamine in his pants.
Defendant stipulated that he had previously been convicted, once in 1989 and twice in 2002, of vehicle theft. (Veh. Code, § 10851.)
3. Marsden Motion
Defendant was arraigned on February 18, 2005. The original trial date was April 11, 2005. After several continuances, defendant made a Marsden motion on July 1, 2005, asking that the court appoint new counsel because his present counsel, Dario Bejarano, was so busy with other trials. Bejarano stated he was prepared but he was already engaged in back-to-back trials and other defendants had priority due to their cases being older in time. The court denied the motion because a new appointment would cause more delay. The trial court set a new trial date for July 25 and defendant agreed to a time waiver.
On August 2, 2005, Bejarano announced he was not ready for trial because the district attorney just provided him with 35 hours of recordings of defendant’s telephone conversations from jail with other people. He asked for a week to review the material. The court continued the case until August 9, with a 10-day grace period to begin trial by August 19.
The trial was continued again to August 26, September 12, and September 26. On September 16, defendant made another Marsden motion on the grounds that he did not waive time on September 1, continuing the trial until September 26. The minute order for September 1, 2006, records that “[d]efendant [w]aives time for speedy trial,” a statement defendant apparently disputed, asserting he was not present in the courtroom when the continued trial date was ordered. Bejarano explained that he had been unavailable because of two other trials. The court denied the Marsden motion based on Bejarano’s unavailability. Trial began on September 26.
Defendant acknowledges that “[i]f . . . the court cannot ascertain a feasible method to protect defendant’s right, the court will have no alternative but to grant a continuance.” (People v. Johnson (1980) 26 Cal.3d 557, 572.) Nevertheless, defendant argues the court was required to offer to appoint defendant another attorney or dismiss the case. (Ibid.)
The denial of a Marsden motion is reviewed for abuse of discretion: “Denial ‘is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel. [Citations.]’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085, citing People v. Webster (1991) 54 Cal.3d 411, 435; Gonzales v. Nork (1978) 20 Cal.3d 500, 507; People v. Bell (1998) 61 Cal.App.4th 282, 287; Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
As discussed in People v. Smith (1993) 6 Cal.4th 684, 696 “. . . new counsel should not be appointed without a proper showing. A series of attorneys presenting groundless claims of incompetence at public expense, often causing delays to allow substitute counsel to become acquainted with the case, benefits no one. The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.
“We thus hold that substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].”
The only basis for defendant’s Marsden motions was that his trial had been delayed. No showing was made of ineffective representation or irreconcilable conflict. The court denied the first Marsden motion because granting it may have caused further delay in the case. The court denied the other Marsden motion because defense counsel was unavailable due to two other trials. Neither denial constituted an abuse of discretion under Marsden standards.
Nor did the delay in the trial create a Marsden conflict because defendant was denied his right to speedy trial under the federal Constitution or state law. As described in People v. Martinez (2000) 22 Cal.4th 750, 765-766, “Under the federal Constitution, the defendant need not identify any specific prejudice from an unreasonable delay in bringing the defendant to trial after the speedy trial right has attached. [Citation.] Instead, delay that is ‘uncommonly long’ triggers a presumption of prejudice, with the presumption intensifying as the length of the delay increases. [Citation.] [¶] Under the state Constitution, by comparison, the showing that the defendant must make depends upon whether the allegedly unreasonable delay occurred before or after the defendant’s statutory speedy trial rights attached. The statutory speedy trial provisions, Penal Code sections 1381 to 1389.8, are ‘supplementary to and a construction of’ the state constitutional speedy trial guarantee. [Citations.] Penal Code section 1382, subdivision (a), provides that a court ‘shall order the action to be dismissed’ if an information is not filed . . . if a defendant charged with a felony ‘is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information . . . .’ No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute. [Citation.] Instead, ‘an unexcused delay beyond the time fixed in section 1382 of the Penal Code without defendant’s consent entitles the defendant to a dismissal.’ [Citation.]”
A four-part test applies to determine whether the constitutional right to a speedy trial has been violate d: “‘[1] whether delay before trial was uncommonly long, [2] whether the government or the criminal defendant is more to blame for that delay, [3] whether, in due course, the defendant asserted his right to a speedy trial, and [4] whether [the defendant] suffered prejudice’ because of the delay.” (Stabio v. Superior Court (1994) 21 Cal.App.4th 1488, 1493, citing Doggett v. United States (1992) 505 U.S. 647, 651.)
In summary, the delay must be unreasonable, unexcused, and cause prejudice to defendant. None of those elements occurred here. Defendant’s trial began September 26, five months past the originally scheduled date of April 11, but only two weeks after the penultimate trial date of September 12, to which he had agreed. The delay was not uncommonly long. Furthermore, the two-week delay was reasonably caused by the unavailability of defense counsel for trial. Nor does defendant identify any prejudice justifying reversal. (People v. Wilson (1963) 60 Cal.2d 139, 151-154; People v. Johnson, supra, 26 Cal.3d at pp. 574-575; People v. Martinez, supra, 22 Cal.4th at p. 769.) Automatic reversal is certainly not warranted under the circumstances of this case. (People v. Ortiz (1990) 51 Cal.3d 975, 988.)
4. Prior Convictions
According to the probation report, defendant had convictions for offenses related to vehicle theft in 1989, 1993, 2000, and 2002. Pursuant to Evidence Code section 1101, subdivision (b), the court granted the prosecution’s motion to present evidence of four of defendant’s convictions in 1989, 1993, and 2000, primarily to show identity and intent. The prosecutor’s rationale included the explanation that, when defendant claimed misidentification, the other-crimes evidence would prove “We got the right guy, and this guy is -- he steals cars.” Defendant then stipulated to one offense in 1989 and two offenses in 2002.
Defendant’s criminal history began when he was 11 years old in 1980 and continued intermittently until the present offense in January 2005.
The prosecution used the stipulation to argue defendant was properly identified as the offender and he acted with the intent to deprive the truck owner of her property. Nor did the police arrest the wrong person. The court instructed the jury according to CALJIC No. 2.50 that evidence of other crimes may not be used to prove defendant has a bad character or a criminal disposition. Instead, other-crimes evidence is limited to tending to show intent, identity, motive, knowledge, or means.
Defendant contends the trial court abused its discretion in allowing evidence of the other vehicle thefts: “‘Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.] On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.’ (People v. Kipp (1998) 18 Cal.4th 349, 369.)
“To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent. [Citations.]
“Finally, for uncharged crime evidence to be admissible, it must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence. [Citations.]” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
Defendant protests there was no showing that the other crimes were sufficiently, or at all, similar to justify their admissibility, especially to establish identity which requires the greatest degree of similarity, “‘so unusual and distinctive as to be like a signature.’” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Characteristics common to robberies do not constitute a sufficient basis to admit evidence of an uncharged offense to prove identity. (People v. Rivera (1985) 41 Cal.3d 388, 393.)
When reviewing the admission of evidence of other crimes, the appellate court considers the materiality of the fact to be proved or disproved, the probative value of the other-crimes evidence, and whether relevant evidence should be excluded. (People v. Hawkins (1995) 10 Cal.4th 920, 951.) If there is a direct relationship between the prior offense and an element of the charged offense, introduction of such evidence is proper. (People v. Daniels (1991) 52 Cal.3d 815, 856.)
Here defendant challenged the sheriff’s deputy’s identification of defendant as the driver of the stolen truck. Defendant’s previous convictions for vehicle theft, particularly the two more recent 2002 convictions, supported identification of him as the offender in the present case, notwithstanding the absence of detail about the other crimes as distinctive as a signature. Instead, when other crimes show defendant has engaged in a pattern of illegal activity of the type for which he is charged, that evidence may be admissible to corroborate an eyewitness who identifies defendant. (United States v. Gibson (7th. Cir. 1999) 170 F.3d 673, 676-677, 679.) Other federal and state courts have admitted evidence of other similar crimes to prove identity. (Smith v. Stewart (9th Cir. 1998) 140 F.3d 1263, 1267-1268, 1272; United States v. Bailey (1997) 111 F.3d 1229, 1231-1233; United States v. Bohr (8th Cir. 1978) 581 F.2d 1294, 1297-1298; People v. Adamson (1964) 225 Cal.App.2d 74, 77-79.) In all these instances, witnesses had identified defendants committing crimes in previous cases and additional witness identified the same defendants committing similar crimes in subsequent cases. The other-crimes evidence tended to proved identity in the present crime.
Furthermore, the other-crimes evidence also demonstrated intent in this case where defendant claimed a mistake absolved him of culpability. Defendant argued that, when he was found hiding under the bed in the mobile home, he was innocently in the wrong place and that the real thief had escaped without being apprehended. The three earlier vehicle thefts served to rebut this explanation, tending to prove specific intent to take the truck and permanently deprive the owner of its use. Because the other-crimes evidence was admissible for this purpose, it was not an abuse of discretion to allow it.
Finally, for the reasons discussed, the disputed evidence was highly probative, outweighing any prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Hoover (2000) 77 Cal.App.4th 1020, 1029.) Any error was also harmless because there was no reasonable likelihood the jury would have reached a different result without the evidence. (People v. Tapia (1994) 25 Cal.App.4th 984, 1023.) The evidence connecting defendant to the stolen truck, combined with his subsequent escape from the police car, demonstrated overwhelmingly defendant’s guilt.
5. Disposition
We affirm the judgment.
We concur: Richli, Acting P. J., King, J.