Opinion
B197439
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. EDWARD MACIAS, Defendant and Appellant.
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted Edward Macias of assault by means likely to produce great bodily injury. He appeals, claiming the court erred in failing to grant his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) to substitute counsel. He also claims the court abused its discretion by denying his request to strike a prior "strike" conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) We affirm.
I
A
Cynthia Moreno is the victim in this case. She used the Salvation Army facility in Whittier to shower and to get clothes. For this reason, she was familiar with the neighborhood and persons living in the area around the Salvation Army.
On September 16, 2006, Moreno went to a laundromat in Whittier near the Salvation Army facility to wash some clothes. Macias was standing near the back door of the laundry when she arrived. Moreno knew Macias from the neighborhood. They occasionally said hello to each other. Macias asked Moreno for change. Moreno said she had none. Moreno went about her business and did not attend further to Macias.
Ten to fifteen minutes later, Macias walked around the folding table and came up behind Moreno. He hooked his arm around Morenos neck and threw her to the ground. He then kicked her in the back and neck five to seven times.
Moreno was 5 feet 4 inches tall and weighed 138 pounds. Macias was much larger: 5 feet 8-1/2 inches tall, and at the time, weighed 200 pounds.
Moreno was in shock. She had no warning she would be attacked. Macias said nothing to Moreno before attacking her. She had no idea Macias might be angry with her.
Paramedics took Moreno to the hospital where she was treated and released within two hours. Hospital personnel gave Moreno a neck brace and a prescription for pain medication. At trial, Moreno said she still had pain in her neck and back.
Shawna Divens had been in the laundromat doing her laundry for only a few minutes when Macias approached and talked to her. He was friendly, but made comments she could not understand. She decided to ignore him. Macias then left the laundromat for ten or 15 minutes. Divens noticed Moreno doing her washing. Divens then saw Macias come back into the laundromat. He acted normally. Then he suddenly turned, grabbed Moreno by her neck, and threw her to the ground. Macias then stepped on Moreno and kicked her several times. Divens told Macias loudly, "`In the name of Jesus get off of her." Macias stopped and calmly walked out of the laundromat. Divens and her girlfriend helped Moreno up from the floor and sat her in a chair. Moreno was crying and holding her arm.
Divens described Macias to the police. She said Macias was wearing a short sleeve shirt and had tattoos on his arms. Police found Macias six blocks away. Macias denied being at the laundromat, denied knowing about an assault there, and denied kicking anyone.
At the police station, Macias waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights and agreed to speak. Macias now gave a second version of events, claiming confusion about the officers first questions. Macias now admitted he had been at the laundromat. Now he said somebody else did the attack. Macias said he had seen the perpetrator, who happened to look just like him. Macias did not complain of pain or injury, and police noticed no injuries to him.
B
Macias testified in his own defense. On the stand, he gave a third version of events. Now he said he had been in a violent interaction with Moreno, but it was all her fault. Macias claimed Moreno asked him for money at the laundromat. According to Macias, Moreno was very drunk. Macias also claimed Moreno got mad when Macias ignored her, and she made angry comments to him. She called him an SOB and punched him in the nose. Macias said he pushed Moreno away and she lost her balance and fell.
Macias testified he told police about his injuries. He also claimed he never denied being at the laundromat, and never denied being in an altercation with Moreno. Macias claimed the contradictory police testimony was incorrect and invented.
Macias admitted he had prior felony convictions. Macias said these convictions had no bearing on his credibility because they had occurred long ago. Macias said he had changed: he was older and wiser now at 42 years old.
C
An information charged Macias with one count of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1), all further unmarked statutory references are to the Penal Code.) As relevant here, the information further alleged Macias had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
The jury convicted Macias as charged. The trial court denied Maciass Romero motion (People v. Superior Court (Romero), supra, 13 Cal.4th 497) to strike one of his prior "strike" convictions in furtherance of justice. The court sentenced Macias as a third strike offender.
Macias appeals.
II
Macias contends the trial court erred in failing to grant his Marsden motion for substitute counsel. Macias was dissatisfied with counsels performance because counsel refused to subpoena the paramedic and hospital reports that Macias said would prove his innocence. His claim of error lacks merit.
There was apparently some preliminary, unreported, discussion in which Maciass counsel informed the court Macias was dissatisfied with his performance and explained the reason for Maciass complaint. Court opened that day in a closed session to hear Maciass Marsden motion.
"THE COURT: "Mr. Macias, I understand youre dissatisfied with your attorney.
"[MACIAS]: Yes.
"THE COURT: Tell me why, Sir.
"[MACIAS]: Mr. Barajas [defense counsel] refuses to subpoena the medical and ambulance report, which would prove my innocence here in this case. I told him that
"THE COURT: Prove what? Im sorry.
"[MACIAS]: The medical and ambulance report.
"THE COURT: What will they prove?
"[MACIAS]: My innocence here in court.
"THE COURT: No, they wont prove your innocence, they will [relate] to the nature of the injuries sustained by the victim. They may or may not reflect on your innocence. But it certainly could have a key to the question of whether or not theres great bodily injury.
"Im familiar with this circumstance, having discussed the case informally with your attorney. And his point is this, Sir—and I agree with him. Right now you are better off the way things are because the People have the burden of proof. The People are the ones who have to prove the injuries. They have nothing. They dont have the medical records. They dont know what happened except that this lady apparently had a sore neck.
"If your attorney subpoenas the records, who knows what hes going to find? He may find a significant injury that would then permit the People to add an additional three-year enhancement for intentional infliction of great bodily injury.
"This is a strategic decision your attorney has made, that hes better off not knowing specifically what injuries she had, because the People are in the same position. And they are the ones who have [to] prove up the case.
"So what you want your attorney to do is the district attorneys job.
"Youre telling me that youre dissatisfied because he hasnt subpoenaed medical records. And his decision, which I think is a sound tactical decision, is we dont want to know whats in those records because they could bite us. Okay.
"It cant help because they already know there are no great lasting injuries. She was—I know that the allegation is that you supposedly choked her and you supposedly kicked her.
"The fact remains, as matters now stand they have no proof of any lasting injury beyond the alleged assault. You bring in the medical records, you may be able to prove perhaps she had a broken rib.
"[MACIAS]: I would like to take the chance, Your Honor.
"THE COURT: Well, you would like to take the chance but your attorney is the one who calls the shots, Sir. [¶] And the fact of the matter is you have to be able to persuade the court that you are receiving ineffective assistance of counsel in order to require the court to interfere with your attorneys representation. And I cant find this to be ineffective.
"I see what youre saying, youd like to take the chance. But I also agree with your attorney that this is a matter of sound tactics for him to make the decision, and hes made the decision. [¶] And accordingly the court is going to deny the Marsden motion. I find no basis to remove him from the case."
Macias complains the court erred by denying his Marsden motion without asking counsel to explain his reasons for refusing to subpoena the ambulance and medical records. To the contrary, however, the court reported that "Im familiar with this circumstance, having discussed the case informally with your attorney." (Italics added.) Maciass opening brief suggests that the trial court did not ask Maciass trial counsel about this issue, but that opening brief omits the courts transcribed statement that it had "discussed the case informally with your attorney." Contrary to Maciass claim on appeal, the transcript shows that the trial court indeed did discuss the case with Maciass trial counsel. Maciass present claim of error lacks a foundation.
Macias claims that the trial court essentially ignored his complaint. This is incorrect. The trial court listened to Maciass complaint (People v. Marsden, supra, 2 Cal.3d at p. 123) and consulted informally with Maciass lawyer about it. The court said, "his point is this, Sir—and I agree with him." The court showed its understanding of Maciass lawyers tactical logic by cogently repeating that logic and by explaining why the logic was sound. This was not error.
Macias offers neither authority nor argument to say a trial court errs by conducting a portion of a Marsden hearing informally and off the record. We thus do not take up that issue.
"The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel." (People v. Smith (2003) 30 Cal.4th 581, 604, citation omitted.) Macias has not met his burden. We find no error.
III
Macias claims the court abused its discretion by denying his request to strike one of his prior "strike" convictions in furtherance of justice. (§ 1385, subd. (a).)
Between his written motion and oral argument at the hearing, Macias asserted some five different reasons why he was outside the spirit of the Three Strikes law, and instead should be treated as a second-strike offender. (1) Macias argued his "strike" priors were for second-degree robbery in 1989 and for making criminal threats in 1998. He also suffered numerous other felony convictions. However, Macias argued his 1989 conviction was too remote to be considered. (2) Macias argued his convictions showed he was not a violent person. Regarding the current conviction for assault, Macias pointed out great bodily injury was neither alleged nor proved, and the great bulk of his 19 prior convictions were not for violent crimes, but were instead for misdemeanor drug offenses related to his alcohol and drug abuse. (3) Macias argued he had a seizure disorder caused by a car accident. Because of the severity of his injury, he requires daily medication, had been receiving Social Security disability benefits, and has been unable to work. (4) Macias asserted he had a stable life. He was then 42 years old, had lived in the Whittier area for eight years, was married, and was the father of two very young children. (5) Because he is no longer young a second strike sentence would be adequate punishment while still protecting society.
The prosecutor argued it would be an abuse of discretion to strike one of Maciass prior "strike" convictions. The prosecutor agreed the 1989 conviction occurred long ago, but noted Macias had not avoided custody since then. In fact, the prosecutor argued, as recently as February 2006 Macias had been arrested for an assault under section 245, subdivision (a)(1). The assault did not result in a conviction, but was enough for him to violate parole. The prosecutor noted Macias had had over 30 contacts with law enforcement and had sustained 13 misdemeanor convictions and nine felony convictions. The felony convictions were not simply for drug offenses, but included convictions for robbery, burglary, and criminal threats. Furthermore, the prosecutor argued, "this is a person who took the stand and absolutely lied on the stand." The prosecutor argued this was yet another reason Macias was not entitled to leniency.
The court declined to exercise its discretion to strike the true finding on Maciass 1989 robbery conviction and to sentence him as a second-strike offender. The court found Macias had lied on the stand. The court noted Maciass testimony was "fundamentally implausible and the jury didnt buy it." The court specifically found it would be an abuse of discretion to strike one of Maciass prior "strike" convictions given his criminal history. The court commented, "I dont know the cause of this. I can surmise that it all may have begun back in the days when the defendant was sniffing glue, frying his brain cells in violations of section 381 of the Penal Code back in 1982. There was at least two misdemeanor convictions back then.
"Thats followed by a long history of theft and drug offenses.
"We do have a battery on a person, that resulted in diversion back in 85, another burglary in 87, another burglary in 92. Its a long and complicated record.
"I do agree with the People that it would be an abuse of discretion for this court to strike the priors simply based on giving the defendant a break in sentencing. [¶] This was a totally uncalled for unjustified assault in this case."
Macias claims the courts ruling was an abuse of discretion.
The Supreme Court in People v. Superior Court (Romero), supra, 13 Cal.4th 497 explained the "furtherance of justice" concept in the context of ruling on motions to strike prior "strike" convictions. "From the case law, several general principles emerge. Paramount among them is the rule that the language of [section 1385], `in furtherance of justice, requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. At the very least, the reason for dismissal must be that which would motivate a reasonable judge. Courts have recognized that society, represented by the People, has a legitimate interest in the fair prosecution of crimes properly alleged. [A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.
"From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely to accommodate judicial convenience or because of court congestion. A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. Nor would a court act properly if guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, while ignoring defendants background, the nature of his present offenses, and other individualized considerations. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531, internal citations and quotation marks omitted.)
In People v. Williams (1998) 17 Cal.4th 148 the Supreme Court expanded on this concept and provided courts additional guidelines for the proper exercise of discretion when addressing the issue whether to strike prior "strike" convictions. In deciding whether to strike a serious or violent felony conviction allegation or finding under the Three Strikes law on its own motion "in furtherance of justice" under section 1385, subdivision (a), or in reviewing such a ruling, "the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth." (Id. at p. 161.) A courts ruling is reviewed for abuse of discretion. (Id. at p. 162.)
Macias claims he was an appropriate candidate for striking his 18-year-old 1989 robbery conviction. We disagree.
Maciass record is not outside the spirit of the Three Strikes law. His criminal history spans 25 years. Including the present case, Macias has achieved seven felony convictions and 12 misdemeanors. Of these 19 convictions, three involved actual or threatened violence. Courts have sent Macias to prison three times and to jail 11 times. Macias committed his latest crime just six days after being released on parole. This newest crime was a violent assault. Maciass response was to lie about the event repeatedly and in different ways, to deny, and then to blame the victim. The trial court took care to review Maciass lengthy and disheartening series of choices. The trial court correctly found Macias should not be treated as if he had only suffered one prior "strike" conviction. (People v. Williams, supra, 17 Cal.4th at p. 163.)
Sadly, the trial courts bleak assessment of Macias meshed with the larger picture as well. Macias was a gang member in his youth. His gang activity stopped when a car accident left him seriously injured at 18 years of age. Macias has not been gainfully employed since. He has been living on Social Security disability benefits and on his wifes welfare payments.
The trial court did not abuse its discretion in finding Maciass situation did not fall outside the spirit of the Three Strikes law. There was no error here.
IV
The judgment is affirmed.
We concur:
PERLUSS, P. J.
ZELON, J. --------------- Notes: Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.