Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF091235A
RAYE, J.During a melee in a trailer park, defendant James Michael Milliken and his companions broke into a trailer and ransacked it. An angry mob gathered outside, and defendant fired a gun into the air to facilitate his escape. Three months later, defendant and a companion drove victim Timothy Stillwell to an orchard. Defendant pointed his rifle at Stillwell, asked him if he believed in God, and fired 16 rounds at the victim.
An information charged defendant with murder, unlawful transportation of an assault weapon, residential burglary, attempted second degree robbery, assault by means of force likely to produce great bodily injury, discharge of a firearm in a grossly negligent manner, conspiracy to commit assault, and evading a police officer. (Pen. Code, §§ 187, 12280, subd. (a)(1), 459, 664/211, 245, subd. (a)(1), 246.3, 182, subd. (a)(1); Veh. Code, § 2800.2.)
All further statutory references are to the Penal Code.
A jury found defendant guilty of second degree murder and as charged on the remaining counts. Sentenced to 71 years to life, defendant appeals, contending (1) the court erred in denying his motion to sever, (2) insufficient evidence supports the attempted robbery conviction, (3) instructional error, (4) ineffective assistance of counsel, (5) the court erred in denying his Marsden motion, (6) the court erred in denying his motion for a new trial, and (7) sentencing error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of charges stemming from two incidents: a brawl at a trailer park and the murder of Timothy Stillwell. Following defendant’s arrest, an information charged him with murder (count 1), unlawful transportation of an assault weapon (counts 2 and 10), residential burglary (count 3), attempted second degree robbery (count 4), assault by means of force likely to produce great bodily injury or with a deadly weapon (counts 5 and 6), discharge of a firearm in a grossly negligent manner (count 7), conspiracy to commit assault with a deadly weapon by means likely to cause great bodily injury or death (count 8), and evading a police officer with wanton disregard for the safety of persons or property (count 9).
As to counts 1, 3, and 4 the information alleged defendant was armed with a firearm. (§ 12022, subd. (a)(1).) On counts 1, 3, 4, 5, and 6 the information alleged defendant personally used a firearm. (§ 12022.5, subd. (a).) On count 4 the information alleged defendant personally and intentionally discharged a firearm. (§ 12022.53, subd. (c).) Finally, as to count 1, the information alleged defendant personally and intentionally discharged a firearm and proximately caused great bodily injury. (§ 12022.53, subd. (d).)
A jury trial followed. The following evidence was introduced at trial.
Melee at the Trailer Park
One evening in March 2003 a group of people took a minivan to a Stockton trailer park. The group -- Dennis Hansen, Crystal Boatman, Lynette Boatman, Travis Parson, and Robin Rials -- were to pick up some of Rials’s belongings from trailer number seven.
To avoid confusion, we will hereafter refer to those individuals who share surnames by their first names.
The group decided to siphon gas from a car parked near the corner. The occupant of trailer number 17, Vicente Garcia, heard noises outside his trailer. Garcia looked outside and saw a red gas can near a car belonging to a friend of Garcia’s brother-in-law. Garcia went outside and discovered gas was being siphoned from the car. He disconnected the hose and took the gas can. The response was immediate. Parson demanded the gas can from Garcia. Garcia refused and Parson began to beat him. Others arrived, armed with bars and baseball bats, ready to fight. Crystal, three or four months pregnant, yelled at the group to get away from Parson and Hansen. Someone swung a bat at Crystal but missed her. Parson grabbed the gas can; the intruders jumped into the minivan and drove away.
The group returned the next day, angry and seeking revenge against Garcia. They brought with them Daniel and Feliciano Vargas, Eugene Rivas, and defendant. The Vargas brothers, Rivas, and defendant understood Parson and Hansen were bent on revenge and wanted the newcomers there to “watch their back.” The women took the minivan; the men rode in Rivas’s car. Daniel Vargas brought his loaded revolver; defendant brought along a sawed-off shotgun. The others carried metal pipes or bars.
After the women arrived, they went into trailer number seven, which belonged to Rials. Parson, Hansen, the Vargas brothers, and defendant, wielding pipes and firearms, walked to trailer number 17; Rivas remained in his vehicle. Hansen broke one of the trailer’s windows, reached inside, and unlocked the door. The trailer was empty. The men went inside and began ransacking the trailer. Daniel admitted that while inside the trailer, he picked up a purse with the intent of stealing it. Officers later found the purse outside the trailer.
Within a minute, the men inside the trailer heard the sound of an angry crowd outside. Ten to twenty men surrounded the trailer, armed with bats, rakes, chains, chairs, and other potential weapons. Hansen, Parson, the Vargas brothers, and defendant exited the trailer and began fighting with the men.
Hansen struck Garcia on the hand with a pole as Garcia shielded his head. Parson struck someone with a pipe. Another one of the men gathered outside the trailer, Alejandro Lugo, suffered injuries to his head, apparently inflicted by a glass bottle. Hansen was also struck in the head. Daniel and defendant pointed their guns at the crowd. Feliciano climbed a fence but managed to snag his jacket on it. After freeing himself, Feliciano fled. Hansen, Parson, Daniel, and defendant ran back to Rivas’s car. Garcia’s brother-in-law rammed that vehicle with his car.
The mob ran toward Rivas’s car and began smashing it. Crystal, Lynette, and Rials ran out of Rials’s trailer, and Crystal began yelling at the mob. After someone hit Crystal in the head, defendant, Hansen, and Parson got out of Rivas’s car. Hansen smashed Garcia’s brother-in-law’s car with a stick.
At this point, defendant fired his shotgun into the air and the mob scattered. Rivas maneuvered around the other car and drove away with Daniel. They picked up F4eliciano at the corner. Hansen, Parson, Crystal, Lynette, Rials, and defendant ran toward the van, got in, and drove away. As they left, defendant fired two shotgun blasts into the air to dissuade pursuit.
The Death of Timothy Stillwell
Approximately three months later defendant and Timothy Stillwell, along with Nakeasha Garcia, Martin Olivera and his brothers Rafael and Alex, Daniel, and Xavier Vargas, spent time at the Oliveras’ house. Defendant and Stillwell smoked crystal methamphetamine and discussed selling antiques. Stillwell told defendant he knew someone who would buy some antiques. The pair left the house several times in Xavier’s car.
Xavier, defendant, and Stillwell had a business arrangement. Defendant possessed some stolen antiques, Stillwell was to find buyers, and Xavier provided the car.
Later that evening Stillwell, Xavier, Daniel, and defendant left the house to take Daniel home so he could get ready for work. On the way, they stopped at an orchard, and defendant and Stillwell smoked methamphetamine. They then dropped off Daniel.
Defendant, driving Xavier’s car, began arguing with Stillwell about how to steal black leather seats from a vehicle. Defendant pulled into a nearby orchard, saying he wanted to “test fire.” The three got out of the car; defendant took out an assault rifle. Defendant pointed the rifle at Stillwell and asked: “Do you believe in God?” Stillwell grabbed the barrel, pointed it to the ground, and asked what defendant was doing. After defendant told Stillwell he was just “playing around,” Stillwell released the rifle barrel.
Defendant backed up, pointed the rifle at Stillwell, and fired 16 rounds. In a panic, Xavier got back into the car. Defendant got into the car and told Xavier: “My gut don’t lie.” He also warned Xavier not to talk about what happened. The pair returned to the Oliveras’ house and wiped down the car.
People living near the orchard heard multiple shots fired in rapid succession coming from the orchard that evening. Neighbors found Stillwell’s bullet-ridden body in the orchard. Officers retrieved 16 expended cartridge cases from the orchard.
The Aftermath
About a week after the shooting, sheriff’s deputies were looking for defendant, who was wanted as a suspect in a home invasion robbery. The deputies saw a car coming toward them that matched the description of the car defendant had been in. Seeing defendant at the wheel, the officers made a U-turn. Defendant sped up and turned onto a gravel road. The deputies activated their lights and siren and followed.
Defendant stopped his car and the deputies ordered him to turn it off. Instead, defendant sped away. As the deputies pursued him, defendant ran through stop signs. The deputies saw defendant reach into the backseat for something. Defendant pulled out a lit flare and held it out the window as he drove. Defendant, who was now driving through an orchard followed by the deputies, struck a tree stump and came to a stop.
Defendant jumped out of the car and ran. He climbed over the fence of a school adjacent to the orchard. Deputies chased defendant through the school and into an apartment complex. Officers surrounded the apartment building, and a negotiating team eventually persuaded defendant to surrender.
Defendant’s car had been painted over with a gray primer. Officers found a rifle in the car and almost two dozen live rounds of ammunition. The trunk yielded eight cans of gasoline, some antiques, and filters for a respirator like those worn by workers in a methamphetamine lab. The expended cartridge cases at the murder scene were fired from the rifle found in defendant’s car.
Defense Case
Defendant testified in his own behalf. The afternoon of the trailer park melee, Hansen asked defendant if he wanted to go to Stockton. Hansen told defendant he was going to fight “some Mexicans” and needed defendant to “have his back.” Lynette told defendant about what had happened the previous evening. Defendant agreed to go. When the Vargas brothers joined them, defendant noticed Feliciano carried a pipe and Hansen was armed with a shotgun. Defendant asked why Hansen was armed, and Hansen replied: “Just in case.” Daniel had a handgun in his waistband.
The Vargas brothers and Hansen tied bandanas around their faces. Defendant testified that the trio belonged to the Norteño gang. When they reached the trailer park, everyone except Rivas got out of the car; Hansen carried the shotgun. At the trailer, Hansen broke a window with the shotgun butt, reached in, and opened the door. A few seconds after the Vargas brothers and Hansen entered the trailer, Parson yelled that people were coming, and the trio came back outside.
As people swarmed outside the trailer, Hansen and Daniel drew their guns. The crowd scattered and Hansen, Daniel, Parson, and defendant got back into the car. Hansen put the shotgun on the car’s center console. As Rivas tried to back out another car rammed them. A large group of men began beating on Rivas’s car. Defendant saw Crystal get hit on the side of the head with a garden hoe. He yelled that Crystal had been hit, grabbed the shotgun, kicked open the door, and jumped out.
Defendant fired two shots into the air and yelled for the crowd to get back. The crowd again scattered. Defendant helped Crystal get up. Parson and Hansen got out of the car, and one of them hit the windshield of the other car. The car backed away and Rivas drove off with Daniel. Parson, Hansen, Robin, Lynette, Crystal, and defendant ran to the van. As they approached the van, defendant heard a car speeding toward him from behind. Defendant fired shots into the air and then pointed the gun at the oncoming car. The car swerved and missed defendant. Everyone got into the van and drove away. They ended up at a nearby reservoir.
Defendant called a friend, who picked him up. Defendant took the shotgun with him. He “cleaned up” the shotgun and returned it to Daniel.
Defendant denied he shot Stillwell. A few weeks before the shooting, defendant bought a rifle from a friend for $50. He wanted to sell it and keep the profits. He asked Xavier if he wanted to buy the rifle for between $600 and $800 dollars. Xavier could not afford it but knew someone who might buy it. Defendant gave Xavier the rifle.
Xavier and defendant also discussed stealing antiques. Xavier, in need of money, agreed to go with defendant to steal the antiques. Defendant wanted to go that night, but Xavier wanted to wait a few days.
Two days before the shooting, Xavier arrived at defendant’s house in a maroon hatchback. Defendant and Xavier went to the Oliveras’ house, where they cleaned out the car to make room for the antiques. Before they left to get the antiques, Xavier stole tags from a car and put them on his car. That night the duo stole a wide variety of antiques, paintings, silverware, dinnerware, and picture frames. They returned to the Oliveras’ house, unloaded the antiques, and put them in Rafael’s bedroom. Defendant and Xavier spent the night at the Oliveras’ house.
Defendant met Stillwell for the first time the next day at the gas station when Xavier introduced them. After they left the gas station, Xavier told defendant that Stillwell said he might be able to help them get rid of the antiques.
Stillwell later showed up at the Oliveras’ house. Stillwell sold Xavier some marijuana and left. Defendant, Justin Mann, Xavier, Rafael, Martin, and Daniel smoked marijuana and methamphetamine throughout the day. That evening, Stillwell returned and Xavier showed him the stolen antiques. Stillwell said his mother would buy them.
Stillwell took the antiques with him; Xavier and defendant followed in Xavier’s car to Stillwell’s mother’s house. Stillwell went inside, came out, and said his mother did not want to buy the antiques. Stillwell put the antiques in Xavier’s car and the trio returned to the Oliveras’ house.
At the house, Daniel asked Xavier for a ride home. Xavier, accompanied by defendant, took Daniel home. When they returned, Stillwell was no longer there. Xavier returned to his house, picked up the rifle, and brought it back to the Oliveras’ house. Xavier and defendant again spent the night.
The next day, defendant and Xavier organized the stolen antiques and “[got] high.” Late that afternoon Daniel arrived and again asked Xavier for a ride home. Mann and Stillwell arrived. Defendant did not believe Mann and Stillwell were friends, and the pair got into a confrontation. Defendant heard Mann accuse Stillwell of being a snitch. Mann said he was a Norteño gang member. That evening defendant, Stillwell, Xavier, Mann, and Daniel got into the car to go to Daniel’s house.
On the way, they pulled into an orchard and smoked methamphetamine, then went to Daniel’s house. Defendant and Daniel got out of the car and Xavier, Mann, and Stillwell drove away. Daniel and defendant ate dinner and later went to the dairy where Daniel worked. Defendant and Daniel worked at the dairy until the next morning, then went back to Daniel’s house.
Defendant saw Xavier pull up in his car, told him they had to get rid of the stolen antiques, and said he would sell them.
Defendant, Xavier, and Daniel went to the Oliveras’ house. Defendant, with help, loaded up the antiques in Xavier’s car, drove to Modesto, and sold them.
When he returned to the Oliveras’ house that evening, defendant saw Daniel coming out of the house scared and in a panic. Daniel asked for a ride home. As they drove, Daniel told defendant Norteño gang members had come to the Oliveras’ house asking questions about defendant, Daniel, Mann, and Xavier. Defendant believed Mann and Xavier were Norteños.
Late the next day, defendant returned the car to Xavier and gave him some of the money from the sale of the stolen antiques. Defendant asked about selling the rifle, and Xavier said he was still working on it.
The next day Xavier arrived at defendant’s house. Defendant noticed the car had been painted over with gray primer. Xavier returned the rifle, saying the deal had fallen through. Xavier asked defendant if he wanted to buy the car. Defendant and Xavier agreed that defendant would pay for the car after selling the rifle.
On June 13, 2003, defendant stole some gas. He drove past a police car and knew they were looking for him in connection with the trailer park incident. Defendant did not know he was being sought for Stillwell’s murder. The officers stopped him and he pulled over. An officer got out of the car, drew his gun, and pointed it at defendant’s head. The officer was yelling, but defendant could not understand him. In a panic, defendant drove off, but at first he was not trying to escape.
Conviction and Sentencing
The jury found defendant guilty of second degree murder on count 1 and as charged on the remaining counts. The jury found all firearm enhancements true, except the personal use of a firearm alleged in count 3.
The court sentenced defendant to 71 years to life: count 1, 15 years to life, plus 25 years to life for the personal discharge of a firearm enhancement; count 4, the midterm of two years, plus 20 years for the personal discharge of a firearm enhancement; count 6, one year (one-third the midterm of three years), plus 40 months (one-third the upper term of 10 years) for the personal use of a firearm enhancement; count 9, eight months (one-third the midterm of two years); count 10, two years (one-third the midterm of six years); and count 2, two years (one-third the midterm of six years). The court stayed the terms imposed on the remaining counts and enhancements. Defendant filed a timely notice of appeal.
DISCUSSION
Motion to Sever
Defendant argues the trial court erred in denying his motion to sever the charges stemming from the trailer park incident on March 8, 2003, from the charges surrounding the murder of Stillwell on June 3, 2003. According to defendant, evidence from the two incidents was not cross-admissible and was highly inflammatory. Therefore, the court’s denial of his motion to sever violated defendant’s right to due process.
Background
In March 2004 the trial court granted defendant’s motion to sever the March 2003 charges from the June 2003 charges. Defense counsel argued there was no cross-admissible evidence between the two incidents and tying the incidents together would be inflammatory. The prosecution argued the evidence from the trailer park incident was admissible to prove the murder of Stillwell was premeditated.
The trial court expressed concern that joining the two incidents together ran the risk of making it difficult for the jury to follow the instruction not to use the trailer park incident as evidence of defendant’s character in regard to the murder: “If [the jurors] believe he was in that gang of thugs on March 8th, the danger is they may well say, ‘I don’t know why he committed that murder,’ but that’s the sort of thing those kind of people do.” The court granted the motion, stating: “I think you’re just dragging too much baggage -- [¶] . . . [¶] -- into the murder case.”
The next day the district attorney moved to dismiss all charges, informing the court that one of the witnesses to both incidents was wanted on charges of murder and home invasion robbery. The prosecution noted it wanted to explore the situation and that it might affect the way the case against defendant proceeded. The defense did not object and the court granted the motion to dismiss the charges. That day, the district attorney refiled a complaint with all charges joined.
Defense counsel again moved to sever the charges. The trial court denied the motion, having determined the counts were properly joined under section 954 as being charges of the same class of crime. In addition, the court noted that although cross-admissibility was not required, there was a witness in common in the two incidents.
A previous trial court heard the motion and determined the prosecution had sufficient reason for dismissing the first case. As to the previous severance order, the court commented it was not its understanding that one case bringing “too much baggage” was a ground for granting a motion to sever.
The court continued: “[A]nd I also think that while this point may not be quite as strong, the DA’s argument about premeditation, sitting and thinking and deciding not to shoot someone in March or shoot a gun off [in the air] . . . does tend to at least give you an argument that there was time to ponder and choose and think and decide not to shoot a person, which is relevant to whether someone has the ability to premeditate, which is an issue in the 187. Although, I thought that was a little bit stretching of it. I think certainly the jury instruction does cover that. [¶] So I find that the counts are properly joined. And I would deny any motion to sever on those.”
The court also found there was no inappropriate behavior on the part of the district attorney in dismissing the charges after the initial motion to sever had been granted.
Discussion
Section 954 provides, in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . provided, that the court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.”
Section 954.1 provides: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
We review a trial court’s ruling on a motion for severance for an abuse of discretion based upon the showing made at the time of the hearing of the motion. Following a trial, we consider whether, despite the correctness of the trial court’s ruling, a gross unfairness has occurred from joinder resulting in a deprivation of the defendant’s right to a fair trial or due process. (People v. Cook (2006) 39 Cal.4th 566, 581.)
The burden on the party seeking severance is to clearly establish that a substantial danger of prejudice exists, requiring that the charges be tried separately. Prejudice depends on the particular circumstance of each case, but certain factors provide guidance in our review of a motion to sever. A court may abuse its discretion in refusing to sever where (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials, (2) certain of the charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, creating a spillover effect of aggregate evidence that might alter the outcome of some or all of the charges, and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
Although defendant acknowledges that cross-admissibility is not requisite to denying a motion for severance, he contends it remains a factor that needs to be considered. Defendant argues no evidence from the homicide case would be admissible in the trailer park burglary, and little of the evidence from the burglary case would be admissible in the homicide case. In addition, defendant argues the enormous prejudice to defendant from allowing the jury to learn the details of the trailer park incident in conjunction with the murder charge clearly outweighed any probative value of the evidence.
Here, there is cross-admissibility of evidence between the two charges: Daniel would testify as a witness to both the incident in the trailer park and Stillwell’s murder. In addition, the trial court noted that defendant’s firing into the air at the trailer park reflected on his ability to premeditate prior to firing shots. This ability to premeditate was relevant to defendant’s state of mind in the Stillwell shooting.
Defendant claims these benefits of joinder are relatively weak, particularly when contrasted with the potential prejudice of trying both incidents together. Defendant argues the Stillwell homicide was highly inflammatory: a cold blooded, motiveless murder. The trailer park incident was also inflammatory: a gang of thugs attacking a homeowner who dared to stand up to them.
Each charge would potentially prejudice the jury against defendant on the other charge. If the jury believed defendant was part of a gang capable of trashing a trailer, it might be more likely to believe him capable of murder. Conversely, if the jury believed defendant shot Stillwell in cold blood, it would be more inclined to believe the trailer park charges. Defendant argues: “This case allowed the prosecution to present to the same jury in one trial two unrelated, highly prejudicial and inflammatory sets of circumstances with the obvious result that deficiencies in the prosecution’s proof as to each case were overcome by the jurors[’] emotional reaction to the inflammatory evidence in the other.”
The People assert both crimes contained highly inflammatory elements, but neither was significantly more inflammatory than the other. We disagree. Although the specter of defendant and his cohorts battling the trailer park inhabitants presents quite a violent picture, Stillwell’s murder is far more chilling.
However, the inflammatory aspect of the crimes is but one factor to be considered in evaluating the trial court’s ruling on severance. As noted, there is cross-admissibility in Daniel’s testimony as a witness to both crimes. And neither case against defendant is a “weak” case so that the spillover effect might alter the outcome of the other charge. Although the murder charge against defendant is more egregious than the charges stemming from the trailer park melee, on balance we cannot say the trial court abused its discretion in denying defendant’s motion to sever.
Defendant also argues the trial court’s denial of his motion to sever denied him due process of law. As defendant notes, even if the trial court did not err in denying his motion for severance prior to trial, the judgment must be reversed if the defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process. (People v. Johnson (1988) 47 Cal.3d 576, 590.)
We find no gross unfairness in the present case. Again, defendant focuses on the inflammatory nature of the murder charges, arguing it allowed the jury to make the inference that defendant routinely engaged in criminal conduct. In support, defendant relies on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 (Bean).)
Here, as in Bean, the trial court instructed pursuant to CALJIC No. 17.02: “Each Count charges a distinct crime. You must decide each Count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged. Your finding as to each Count must be stated in a separate verdict.” Defendant also contends that, as in Bean, the prosecution exploited the inflammatory nature of the evidence.
In Bean, the Ninth Circuit Court of Appeals granted habeas relief, concluding the joinder of two indictments for the murder/robbery/burglary of two individuals deprived the defendant of a fair trial. In Bean, the prosecution at trial “repeatedly encouraged the jury to consider the two sets of charges in concert, as reflecting the modus operandi characteristic of [the defendant’s] criminal activities.” (Bean, supra, 163 F.3d at p. 1084.) Here, however, there was no prosecution argument that the two counts should be considered in concert, and the jury was properly instructed to consider each count separately.
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence in support of his conviction for attempted robbery. Although defendant concedes there was evidence Daniel intended to steal the purse from the trailer, he argues there was no evidence he intended to do so by force or by taking it from a person.
In reviewing a challenge to the sufficiency of the evidence we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. Substantial evidence consists of evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hinton (2006) 37 Cal.4th 839, 884.)
To establish the crime of attempted robbery, the prosecution must prove a specific intent to commit robbery and a direct overt act toward its commission. (People v. Medina (2007) 41 Cal.4th 685, 692; People v. Dillon (1983) 34 Cal.3d 441, 455-456.) “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.)
Defendant argues no evidence supports the proposition that Daniel intended to take the purse from the person of Vicente Garcia, the trailer’s absent occupant. Moreover, defendant asserts there is no evidence Daniel intended to use force in taking the purse.
We disagree. Defendant, accompanied by Daniel, Hansen, Feliciano, and Parson, went to the trailer park armed with metal pipes and guns. The five armed men entered the trailer ready to battle Garcia. The trailer was empty. Daniel picked up a purse inside the trailer with the intent to steal it. A reasonable jury could determine that defendant and his cohorts entered the trailer with the intent to steal and to use force against anyone inside the trailer to accomplish the robbery.
In addition, the group entered Garcia’s trailer in order to exact revenge against Garcia for the incident the previous evening. Given the group’s propensity for physical violence, abetted by the arms they carried, the jury could reasonably infer that they intended to use force against anyone who got in the way of their attempt to trash the trailer and carry away anything valuable found inside.
The fact that a completed robbery was, in fact, impossible since the trailer was empty does not vitiate the sufficiency of the evidence in support of attempted robbery. Courts have repeatedly ruled that defendants charged with attempting to commit a crime cannot escape liability because the act they attempted was not completed due to an impossibility they did not foresee. Physical impossibility is not a defense to a charge of attempt. (People v. Reed (1996) 53 Cal.App.4th 389, 396.)
After reviewing the record, we find sufficient evidence to support defendant’s conviction for attempted robbery.
Instruction on Attempted Robbery
Defendant challenges the trial court’s modified instruction outlining the elements of attempted robbery. The People concede the modified instruction did not comport with the evidence but argue any error was harmless.
Background
The court instructed the jury on attempt: “An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. [¶] In determining whether this act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to commit a crime will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to commit that specific crime. These acts must be an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design.” (CALJIC No. 6.00.)
The court then modified the standard robbery instructions by replacing the term “robbery” with “attempted robbery” and making other modifications by adding the term “attempt.” The court gave a modified version of CALJIC No. 9.40:
“Defendant is accused in Count 4 of having committed the crime of attempted robbery, a violation of section 664/211 of the Penal Code.
“Every person who attempts to take personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive that person of the property, is guilty of the crime of attempted robbery in violation of Penal Code section 664/211.
“The words ‘takes’ [and] ‘taking’ require proof of (1) taking possession of the personal property, and (2) carrying it away for some distance, slight or otherwise.
“‘Immediate presence’ means an area within the alleged victim’s reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.
“‘Against the will’ means without consent.
“In order to prove this crime, each of the following elements must be proved:
“1. A person had possession of property of some value however slight;
“2. An attempt was made to take the property from that person or from his immediate presence;
“3. The attempt to take the property was taken against the will of that person;
“4. The attempted taking was accomplished either by force or fear; and
“5. The attempt to take the property was done with the specific intent permanently to deprive that person of the property.” (Modifications in italics.)
The court also gave a modification of CALJIC No. 9.40.2: “To constitute the crime of attempted robbery, the perpetrator must have formed the specific intent to permanently deprive an owner of [his/her] property before or at the time that the act of taking the property occurred. If this intent was not formed until after the property was taken from the person or immediate presence of the victim, the crime of attempted robbery has not been committed.” (Modifications in italics.)
Discussion
Defendant argues the trial court erred in modifying the instructions on attempt. According to defendant, the court failed to instruct the jury on the specific intent necessary for attempted robbery, namely, the intent to take the property from the person’s presence or the intent to take the property by use of force or fear. Instead, the court instructed the jury only that defendant must have had the specific intent to permanently deprive a person of his or her property.
We agree that the trial court’s modification did not comport with the evidence presented at trial. Instead, the court should have instructed on an attempt to commit a crime and on robbery, CALJIC Nos. 6.00 and 9.40.
A trial court’s error in omitting an element of an offense in its instruction to the jury ordinarily requires reversal of a conviction unless the error was harmless. But if no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt and we affirm the conviction. (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)
Here, we find the error harmless. The trial court instructed the jury that defendant had to have the specific intent to commit the crime of robbery. The court also instructed the jury that the elements of attempted robbery included an attempt to take the property against the will of a person and that the attempted taking was accompanied either by force or fear. The court listed as the final element “[t]he attempt to take the property was done with the specific intent permanently to deprive that person of the property.”
We determine the correctness of jury instructions from the entirety of the instructions given, not from a consideration of parts of an instruction or from a particular instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-964; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Reading the instructions as a whole, the court informed the jury an attempted robbery required defendant to possess the specific intent to permanently deprive a person of his or her property. However, the attempted robbery also required the taking to be against the will of the person and accompanied by either force or fear.
Under these circumstances, the jury would logically conclude the specific intent necessary to support a conviction for attempted robbery encompassed both the permanent deprivation and the taking by force or fear from the immediate presence of the person. We find no prejudicial error.
Ineffective Assistance of Counsel
Defendant argues trial counsel performed ineffectively in eliciting from Detective Scheffel that she believed Xavier had been truthful in testifying about Stillwell’s murder. According to defendant, there is no possible legitimate reason for eliciting this testimony.
Background
Detective Deborah Scheffel testified that she lied to Xavier, telling him she knew everything in order to get him to tell her the truth. She wanted him to feel like he was backed into a corner. Scheffel described Xavier, testifying that “[t]his slick haired somewhat streetwise looking young man got tears in his eyes, hung his head, and in a kind of a soft voice he said that he saw the homicide.” Defense counsel inquired: “[R]ight there is where you believed him?” Scheffel responded: “All I know is what I’m seeing. And, no, that isn’t necessarily -- I’m not makin’ any assumptions about whether I believe him or not.”
Defense counsel asked if, by describing a tearful Xavier, Scheffel was trying to convey to the jury that she knew Xavier was telling the truth. Scheffel said no.
The court broke in and instructed the jury on evaluating the credibility of witnesses, concluding with: “So you are the sole determiners of the . . . credibility of the witnesses before you. So what Detective Scheffel says about her opinion, cannot replace the duty that you have, okay.”
Defense counsel then asked Scheffel: “In your mind, do tears mean –- equate with truthfulness?” Scheffel answered: “All I’m telling you is the things that I saw. And all he admitted to or he divulged while he had tears in his eyes.” Scheffel testified she had no idea what Xavier would say next.
Defense counsel asked: “But what I want to know is since you described something, an encounter between the two of you, I’m asking you in your training and experience, does the welling up of tears and the shedding of tears in a witness’s or a suspect’s eyes, do you equate that with telling the truth? [¶] A. Not necessarily. [¶] . . . [¶] . . . It depends on the person. But it’s a part of what I saw that day . . . and unfortunately, I don’t have the videotape of that encounter to give you. [¶] Q. All right. But we do have your report. And we’ll go over that in a minute. [¶] What I’m asking you is this: Since you don’t necessarily equate tears with truthfulness, did you believe him in his living room when he said he didn’t know anything about the murder? [¶] A. No. [¶] Q. You then took him to the sheriff’s office at the jail . . . and interviewed him, correct? [¶] A. Yes. [¶] Q. [D]id he shed tears during the interview? [¶] A. I -- I don’t’ recall. [¶] . . . [¶] . . . I don’t think so. [¶] Q. Did you believe him after the interview that he was telling the truth? [¶] A. Yes. [¶] Q. And today you believe him; is that right? [¶] A. Yes. Yes, I do.”
Defense counsel continued: “Now just to make sure that we don’t get things blurred like the Judge was telling the jury, it’s their . . . decision. [¶] But based on what you told the jury a minute ago and what you’re telling us now, that you believe him, he was telling the truth, are you attempting to vouch for his credibility as you sit here today? [¶] A. When you . . . ask me do I believe him, I’m not seeking to vouch for anybody. All I’m saying is that’s what I felt and that’s why I did the things that I did. [¶] Q. No. My question is this: I asked you if you believed him . . . during the interview, if you believed him at the end of the interview, and do you believe him now. [¶] And I believe your response has been a consistent and overwhelming, reverberating and overwhelming yes. [¶] Is that correct? [¶] A. Yes.”
Defense counsel asked: “Have you ever been lied to and got fooled and said, he pulled one over on me? Has that ever happened to you where a suspect who you believe, a witness that you believe has cried or . . . whatever they have done, and you were taken in and you found out he played you for a sucker? [¶] Has that ever happened to you in your 20-some years in your career in a homicide case?” Scheffel responded: “I have had doubts about whether people were being completely truthful with me. But . . . I can honestly say to you that I . . . have never in my entire law enforcement career brought a homicide case or any other case to the District Attorney . . . for prosecution unless I believed in my case and what I had found out and the people that I had spoken to. [¶] I’m a collector of information and facts. I wasn’t at that homicide, and I wasn’t at the pursuit with [defendant] in this case. But I have to make judgments and assumptions as I go through an investigation. [¶] I have never brought a case for prosecution to the District Attorney that I didn’t think I’ve arrested the right man. And I’m the tougher standard. Before I ever take that case to the District Attorney, it has to go past me first. And it goes past my chain of command as well.”
The court inquired as to the relevance of the questions and stated: “However it got brought up, I’m not [sic] going to stop this train of thought right now, this is inappropriate at this point. [¶] . . . [¶] . . . What she believes, what her vouching, that’s inappropriate for the jury to consider that. And they have to make their own decision about what happened. They have got -- you’ve got extensive questioning during voir dire about just because a case is filed, does that mean . . . that a person doesn’t have the presumption of innocence. [¶] And, of course, you all answered that a person has the presumption of innocence despite the fact that the charges are brought. [¶] And I feel like you’re getting into an area that is very dangerous and misleading so I’m going to stop it at this point.”
Discussion
To establish ineffective assistance of counsel, a defendant must show counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms and counsel’s deficient representation subjected the defendant to prejudice, that is, a reasonable probability that, but for counsel’s failings, the result would have been favorable to the defendant. (In re Neely (1993) 6 Cal.4th 901, 908-909.)
In evaluating a claim of ineffective assistance, we accord great deference to the tactical decisions of trial counsel. (In re Cordero (1988) 46 Cal.3d 161, 180.) When the record contains no explanation for the challenged behavior, we will reject the claim of ineffective assistance unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Kipp (1988) 18 Cal.4th 349, 367.)
Defendant contends there is no reasonable tactical or strategic reason for defense counsel to repeatedly ask Detective Scheffel if she believed Xavier. According to defendant, defense counsel’s questioning only served to bolster Xavier’s credibility in the jury’s eyes.
We disagree. Defense counsel’s questioning of Scheffel was an attempt to raise questions about Scheffel’s reaction to Xavier’s tearful confession. Defense counsel was not attempting to have Scheffel vouch for Xavier’s truthfulness, but instead, defense counsel sought to show that Scheffel’s belief in Xavier was based on emotion. In questioning Scheffel, defense counsel attempted to convince the jury that Scheffel’s evaluation of Xavier was not based on logic but instead was an emotional response to Xavier’s tears.
Defense counsel argued the prosecution’s case rested on the inconsistent, unsubstantiated testimony of Xavier and Daniel. The prosecution failed to meet its burden of proof, according to defense counsel, in part because Xavier’s asserted veracity rested on an emotional, not rational, reaction to his tearful testimony. Since defense counsel had a tactical reason for his actions, we find no ineffective assistance.
Marsden Motion
Defendant argues the court erred in denying his motion to replace counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). According to defendant, even though defense counsel made statements demonstrating the breakdown of his relationship with defendant, admitted destroying portions of defendant’s file, and stated he no longer wanted to represent defendant, the court refused to grant relief.
Background
Prior to jury selection, defense counsel Ralph Cingcon told the court he was not ready to make in limine motions and was not feeling well because he had not had his medication for over a week. The court advised counsel to get his medication.
On several occasions during trial defense counsel referenced needing his medication. While cross-examining a witness, defense counsel stated, “I forgot to take my medicine. . . . I’m talking out of my head.” Later, during cross-examination of another witness, defense counsel said, “I guess I was talking out of my head.” While cross-examining yet another witness, defense counsel commented: “I can’t think that clearly right now.”
During Daniel’s examination, defense counsel said he was not feeling well enough to cross-examine the witness. Instead, counsel stated he would sit, listen, and take notes. Counsel informed the court that he was physically all right but had problems with his mental acuity. Toward the end of trial, counsel stated his “mind has not been quite clear in the last couple of weeks.” Defendant cites these instances, and others, as evidence that defense counsel was “confused, uncooperative, ill prepared, and inadequately informed.”
Following the jury’s verdict but prior to sentencing, defendant filed a motion in pro. per. for a new trial, alleging ineffective assistance on the part of trial counsel Cingcon. The motion cited a variety of inadequacies on Cingcon’s part during trial. The court appointed attorney John Panerio to investigate defendant’s representation claims; defendant’s trial attorney remained his attorney for sentencing.
Attorney Panerio, during a hearing, stated that the “way to proceed is to have a Marsden hearing.” He also requested trial transcripts to assist defendant in his ineffective assistance of counsel claim, part of the new trial motion. The court stated a review of the entire record was unnecessary but continued the matter to give Panerio time to consult with defendant.
Defendant filed a second motion for a new trial pursuant to Marsden, as well as a motion for the trial transcripts. Again defendant argued Cingcon rendered ineffective assistance during trial. During the hearing on the second motion for a new trial, attorney Panerio reiterated his view that the court should hold a Marsden hearing. He also stated that because he was not present at trial, he could not evaluate the statements made in defendant’s motion regarding ineffective assistance. The court denied defendant’s request for transcripts, finding them unnecessary to the resolution of the new trial motion. The court denied the new trial motion.
Later that morning, the court held a Marsden hearing. Defendant criticized defense counsel Cingcon’s cross-examination of Lynette as inadequate. The court noted defendant had to show a breakdown between defendant and defense counsel that would make further representation impossible. The court observed: “I don’t see it. I see you guys talking to each other. I see you able to communicate with Mr. Cingcon. I see Mr. Cingcon able to communicate with you. . . . You may have a disagreement as to trial tactics.”
Cingcon informed the court that if defendant did not want him as an attorney, he did not want to represent him. Cingcon also expressed frustration with defendant’s complaints and at a remark by the court that he believed impugned his integrity. The court admonished Cingcon for his lack of control and continued the matter.
Defendant filed a third motion for a new trial, citing Marsden and requesting new representation. Again, defendant provided numerous examples of what he believed constituted failures on Cingcon’s part to effectively represent him. Defendant concluded: “In light of all this evidence it should be clear as to why I feel my attorney was incompetent and why I can no longer trust his judgment or tactical decisions.” Defendant does not mention any breakdown in the relationship between Cingcon and defendant. The court stated it would proceed in accordance with People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart). Therefore, the court would hold a Marsden hearing to determine whether defendant was entitled to appointment of another attorney.
The trial court explained: “To do so, the Court has to inquire of the defendant and his trial counsel as to the circumstances that appear pertinent. And if the claim is based on an act or omission that occurred at trial, or the effect of which can be evaluated by what occurred at trial, the Court can rule on the motion for new counsel without giving you new counsel. Do you see what I am saying? I can review all of it, listen to you and Mr. Cingcon. And then decide whether you get a new Mr. Panerio. The Marsdenis the first thing that happens. I did it backwards. I said . . . you can have Mr. Panerio. I didn’t require that you meet that threshold step. . . . [¶] . . . [¶] What I found in the law is that I should be doing the Marsdenhearing to determine whether you are, in fact, entitled to have an alternate attorney appointed. And in doing that, I don’t need to order trial transcript because I was there, and I observed everything that I could observe. . . . [¶] And then the remedy is, if, in fact, I find that he was ineffective, and you are, therefore, entitled to a new attorney, then you get that new attorney to further develop your motion for new trial. And then that attorney is your attorney for all intents and purposes. And then he represents you at the sentencing. We haven’t got there yet.”
The court stated it would consider the contents of defendant’s previous new trial motions. The court concluded that under Stewart, “a motion for a new trial based on incompetence of counsel is not a hearing to go into trial counsel’s tactics at trial. That is what appeal is for. It is not a hearing on habeas corpus, which is what habeas corpus hearings are for. I am not going to let it get into that.”
At the Marsden hearing, the court considered defendant’s allegation of Cingcon’s incompetence at trial and determined that many of the things defendant complained about were tactical decisions. Included were Cingcon’s decision not to play videotapes of interviews of Crystal and Daniel; the scope of his examination of Lynette, Crystal, and Marcia Garcia; his decision not to call the victim’s father as a witness; his stipulation regarding what the victim’s mother would testify to; and his failure to call two of Daniel’s cellmates, who would have testified about Daniel’s deal with the district attorney.
Defendant also alleged two witnesses, Wanda McDaniel and Holly Hunt, were not adequately investigated. The trial court accepted Cingcon’s explanation that the defense investigators “to the best of [their] ability” attempted to locate the witnesses. Cingcon also stated that had the investigators not performed adequately, he would have requested a continuance.
Defendant claimed Cingcon did provide him with copies of the videotaped interviews and transcripts. Cingcon stated defendant never requested those documents. The court noted the documents were part of the court file. Defendant responded that “[t]his is really not important compared to the other stuff.”
As to defendant’s complaint that Cingcon disposed of discovery, personal notes, videotapes, and transcripts, the court noted the videotapes were not destroyed because they were admitted into evidence. The preliminary hearing transcript was part of the court record, and the trial transcript was in the process of being prepared. The court also noted that defendant’s claim that Cingcon destroyed his case file arose after trial, and Cingcon did not have to turn his work product over to defendant.
As to defendant’s claim that Cingcon failed to seek appropriate medical care, the court stated it observed Cingcon’s behavior during trial and suspended the proceedings when Cingcon felt unwell. The court observed: “[M]y overall impression of Mr. Cingcon’s representation of you was that it was, given what he had to work with, that he did a fine job.”
The court did not find a breakdown in the relationship between defendant and Cingcon but questioned Cingcon further about his relationship with defendant. Cingcon stated he did not want to represent defendant any longer and believed there was a “total irremediable breakdown of attorney/client privilege.” Defendant’s motion, Cingcon felt, attacked his credibility and integrity.
Cingcon further informed the court that he felt it would be unfair for him to continue to represent defendant because he did not feel like he had it in him. Cingcon told the court: “I am thoroughly disgusted with the whole case and wish I had . . . never been on it. It is adding to my, hasten[ing] my retirement. It would be the worst thing you can do to appoint me to represent Mr. Milliken. [¶] . . . [¶] . . . As far as I am concerned, [defendant] can drop dead. That is how I feel.”
The court concluded defendant failed to establish Cingcon had ineffectively represented him. Nor did the court find grounds to substitute counsel to help defendant develop a motion for a new trial.
Cingcon repeated his desire not to represent defendant, because he believed at that point there was a complete and irreparable breakdown of the attorney-client privilege and he would not be comfortable discussing the case with defendant. He asked that the court appoint new counsel.
Cingcon also told the court that after 27 years he had had enough of “this business” and did not want to subject himself to these “indignities” any longer. He had no good feelings for defendant. Cingcon stated, “[A]pparently, during the whole time of this representation, when I thought Mr. Milliken was very satisfied, now has turned out, is like . . . having a relationship with somebody and it was a lie all along. I feel gypped, and I don’t need that.” Cingcon also described defendant as “a very amiable, engaging young man. Likable. I am not talking anything personal.” Cingcon stated a person makes an “enemy” of him when they turn on him. He revealed that the only job he ever loved was working for the district attorney’s office, but they “took the word of a child molester” and tried to frame him for bribery.
Cingcon stated defendant told “the Sheriff’s office” at the jail that Cingcon had given defendant contraband, a piece of gum. Cingcon, involved in the trial, did not respond quickly enough with a denial to the allegation, and his contact visits at the jail were suspended as to all inmates. Defendant stated the deputies simply assumed Cingcon gave him the gum because he did not tell them where he got it.
The court empathized with Cingcon that he felt personally attacked. The court described Cingcon as a “wonderful guy.” However, the court also informed Cingcon that it was the duty of defense counsel to have a “thick skin.” The court did not believe defendant and Cingcon had “such a breakdown in [their] relationship” that it would be impossible for Cingcon to represent defendant. The court concluded: “I do not think that there . . . has been a factual showing of such a conflict of personality that you can’t rise to the level to represent him at a sentencing hearing.” The court ruled that Cingcon would remain attorney of record through the sentencing and relieved Panerio of representing defendant.
Discussion
“A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) In ruling on such a motion, the trial court must permit the defendant to explain the basis for his contentions and to relate specific instances of the attorney’s inadequate performance. (People v. Welch (1999) 20 Cal.4th 701, 728.)
We review the trial court’s determination under the abuse of discretion standard. A trial court does not abuse its 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. A court abuses its discretion if the record shows the appointed attorney is failing to provide adequate representation, or if the defendant and counsel have become embroiled in such an irreconcilable conflict or complete breakdown in the attorney-client relationship that ineffective representation is likely to result. (People v. Valdez (2004) 32 Cal.4th 73, 95; People v. Horton (1995) 11 Cal.4th 1068, 1102.)
Defendant argues the court abused its discretion in denying his Marsden motion both on the grounds of ineffective assistance and because of the complete breakdown of the attorney-client relationship. We shall consider each claim in turn.
The trial court, as required, considered defendant’s multiple allegations of ineffective assistance. The court discussed each allegation and determined they were either tactical decisions by Cingcon or did not constitute ineffective assistance.
Defendant complains the trial court did not adequately inquire into Cingcon’s efforts to locate witnesses Silva and McDaniel. However, the trial court questioned Cingcon about the investigation, and Cingcon informed the court he had attempted to locate the witnesses “to the best of our ability.”
Defendant also claims the trial court should have inquired whether Cingcon consulted with a gun and ballistics expert. The trial court considered this claim, and determined it did not rise to the level of ineffective assistance.
Defendant also challenges the trial court’s inquiry into Cingcon’s failure to recall witnesses in rebuttal. However, the trial court noted the witnesses were questioned extensively and did not believe recalling the witnesses would have furthered defendant’s case.
Finally, defendant faults the trial court for not inquiring further into Cingcon’s decision not to call Daniel’s cell mates regarding Daniel’s statements while incarcerated. Again, the trial court found the decision not to call Daniel’s cell mates was a tactical decision by Cingcon, and the court would not second-guess defense counsel. The court noted there had been extensive cross-examination of Daniel, and the jury “got the message loud and clear that he was not a stellar citizen.”
Defendant contends the trial court failed to inquire into and evaluate the specifics of his complaints of inadequate representation. Our review of the record belies this claim.
Defendant’s second claim, that the court erred in denying his Marsden motion based on the complete breakdown in his relationship with Cingcon, proves more problematic. A defendant is entitled to substitution of counsel if the record clearly shows that defense counsel and the defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Fierro (1991) 1 Cal.4th 173, 204.)
As defendant points out, during the hearing Cingcon made numerous comments casting grave doubts upon his relationship with defendant. Cingcon stated he did not wish to represent defendant any longer, that he believed defendant’s motion impugned his credibility and integrity, and that there had been a complete and irreparable breakdown in their relationship.
Despite Cingcon’s comments, the trial court determined any rift between defendant and counsel would not make it impossible for Cingcon to represent defendant.
During the hearing, in addressing defendant’s claim that restraints prevented him from communicating with counsel, the trial court observed: “I saw the notes going back and forth between you and Mr. Cingcon. I saw the communication level was good. And the rapport between the two of you was good during the trial.” At a later point in the hearing, the court noted: “I see you guys talking to each other. I see you able to communicate with Mr. Cingcon. I see Mr. Cingcon able to communicate with you.” Even in the midst of his angry outburst, Cingcon described defendant as “amiable, engaging . . . [l]ikeable. I am not talking anything personal.”
From the record it appears the genesis of the breakdown between Cingcon and defendant began with the filing of the Marsden motion itself. Cingcon believed his integrity had been impugned by the motion and objected to aspects of the court’s questioning of his performance at trial.
Nothing in the record before us shows a rift between counsel and client prior to the motion. Indeed, the court described the relationship as having been quite good, with communication flowing freely between the two. Nor did defendant argue, either in his many motions or during oral argument, that there had been a breakdown in the relationship. Instead, defendant objected to a variety of trial tactics he believed represented ineffective assistance on Cingcon’s part.
While Cingcon’s statements about representing defendant were quite heated, they seem purely situational; the response of a weary defense attorney to a motion severely criticizing his ability as trial counsel. We do not condone such comments, but nor do we believe they automatically signify an irredeemable chasm between counsel and client. The trial court, which observed both parties during the lengthy trial, appears to have put these comments in perspective, finding Cingcon, although frustrated with defendant, able to complete his representation through sentencing.
Since any rift between the two appeared only during the hearing, and only on the part of Cingcon, we cannot find the court abused its discretion in denying defendant’s Marsden motion. All that remained was defendant’s sentencing, and given Cingcon’s brief, albeit heated, outburst, nothing in the record reveals a complete breakdown between defendant and counsel such that ineffective assistance was likely to result.
New Trial Motion
Defendant argues the court erred in failing to appoint independent counsel to investigate and prepare his ineffective assistance claim in a motion for a new trial, which deprived him of his right to effective assistance of counsel.
As noted, the trial court, after researching the matter, concluded the proper procedure was to treat defendant’s pro. per. motion for a new trial as a Marsden motion. The court proceeded correctly.
When a defendant claims, after trial, that defense counsel performed ineffectively and seeks substitute counsel to pursue the claim, defense counsel is placed in an awkward position. The attorney must defend against charges from the client he or she is representing, creating a potential for conflict. To be prudent, a trial court should first hold a Marsden hearing. (People v. Smith (1993) 6 Cal.4th 684, 694-696 (Smith).)
The court must allow the defendant to express any specific complaints about the attorney, and allow the attorney to respond. Substitute counsel should be appointed when, in accordance with Marsden, the court finds the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel based on either inadequate representation or an irreconcilable conflict between counsel and the defendant. When a proper showing is made, the trial court should appoint substitute counsel. The newly appointed counsel can investigate a possible motion for a new trial based upon ineffective assistance. (Smith, supra, 6 Cal.4th at pp. 694-696.)
The trial court followed this procedure in the present case. We find no error.
Defendant also contends the trial court abused its discretion in denying his motion for a new trial. The People contend any issue relating to the new trial motion is moot. As the People note, the court originally denied defendant’s motion for a new trial, but after research and reflection decided to hold a Marsden hearing to determine whether to appoint new counsel to pursue a new trial motion. Following the Marsden hearing, the court concluded defendant was not entitled to appointed counsel and no further new trial motion was filed. In effect, defendant is appealing from the denial of the Marsden motion, which we have addressed ante, at pages 32-44.
Sentencing Error
Defendant argues the court erred by imposing the upper term based on facts that were neither found by the jury nor admitted by defendant. In support, defendant cites Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).
Background
In sentencing defendant to the upper term, the court set forth its rationale: “The court has chosen the upper term because of [the] victim’s vulnerability and because the particular conduct Mr. Milliken engaged in indicates a serious danger to society.”
The probation report listed numerous circumstances in aggravation. As to the facts relating to the crime, the report noted the crime involved great violence and defendant used a weapon, induced others, and took advantage of a position of trust. In addition, the circumstances surrounding the crime indicated planning, sophistication, or professionalism. As to defendant, the probation report noted he was on probation when the crime was committed and his prior performance on probation was unsatisfactory.
The report also detailed defendant’s past criminal conduct, which it termed “an insignificant record of criminal conduct.” Defendant had a 2003 misdemeanor battery conviction, for which he was placed on three years’ probation.
Discussion
In Cunningham, the United States Supreme court held that California’s determinate sentencing law violates “a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 166 L.Ed.2d at pp. 864-865.)
However, the California Supreme Court has determined that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black).) In addition, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.)
An aggravating circumstance comports with Cunningham if it was based on the defendant’s criminal history. This exception for a defendant’s recidivism must not be construed too narrowly and includes not only the fact of the prior conviction, but also related issues. (Black, supra, 41 Cal.4th at pp. 816, 818-820.)
Here, the trial court sentenced defendant to the upper term for two reasons: Stillwell’s vulnerability, and defendant’s conduct indicated a serious danger to society. The trial court did not mention defendant’s prior criminal record as a reason for elevating his sentence above the middle term.
The Cunningham court held that “[e]xcept for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, 166 L.Ed.2d at p. 873.) In the present case, the only aggravating factors explicitly considered and relied on by the trial court were constitutionally deficient under Cunningham.
Defendant had no prior felony convictions and the record reflects a 2003 misdemeanor battery conviction that resulted in three years’ probation. The court mentioned neither of these factors in sentencing defendant to the upper term. Accordingly, unless Black is interpreted to uphold upper term sentences based on prior misdemeanor convictions the court did not consider, the sentence must be reversed.
At least one court has rejected such an interpretation. In People v. Cardenas (2007) 155 Cal.App.4th 1468 (Cardenas), the appellate court concluded the trial court committed Cunningham error in imposing an upper term for robbery. The trial court found the victim was vulnerable and that there was planning and sophistication on the part of the defendant in committing the crime. (Id. at pp. 1479-1480.) Although the probation report reflected prior misdemeanor convictions, the trial court did not cite them in imposing the upper term. (Id. at pp. 1480-1481.)
The Cardenas court noted the trial court in Black had considered the defendant’s prior criminal record, which included two felony convictions and several misdemeanor convictions, in imposing the upper term. Therefore, Black did not confront the issue of convictions unmentioned by the trial court in imposing sentence. (Cardenas, supra, 155 Cal.App.4th at p. 1480.)
Cardenas found the language of Black “strongly suggests the trial court must have at least relied on the defendant’s prior criminal record as one of its reasons for imposing the high term before it can be considered as making that defendant ‘eligible’ for the high term and thus ‘authorizing’ that elevation of the sentence and allowing the trial court to use otherwise constitutionally infirm factors in deciding to do so. After emphasizing the point the United States Supreme Court ‘consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction,’ our high court could have merely pointed out the defendant had a number of prior convictions and held that fact alone made him ‘eligible’ for a high term sentence. Instead, however, the court went to great pains to demonstrate the trial court had relied on those prior convictions as part of the justification for imposing the high term sentence.” (Cardenas, supra, 155 Cal.App.4th at p. 1481, fn. omitted.)
The court in Cardenas concluded: “Nothing in [Black]suggests the mere fact one or more prior convictions repose, unnoticed or disregarded by the trial court, in the probation report is enough to make the defendant ‘eligible’ for a high term sentence within the meaning of that opinion. To the contrary, the [Black]opinion stresses the information about prior convictions contained in the probation report and the district attorney’s brief serves only to support the trial court’s ‘conclusion’ the defendant’s prior criminal history constitutes the aggravating factor -- or one of the aggravating factors -- the court found justified imposing a high term sentence on a defendant. As the Supreme Court emphasized, ‘[o]n appellate review, [it is the] trial court’s reasons for its sentencing choice’ that are examined, and the evidence supporting that reason or reasons -– not evidence it either rejected or ignored.” (Cardenas, supra, 155 Cal.App.4th at p. 1482, fn. omitted, quoting Black, supra, 41 Cal.4th at p. 818, fn. 7.)
In addition, the Cardenas court noted another reason unmentioned prior convictions cannot support an upper term. Penal Code section 1170, subdivision (b) and rule 4.406, subdivisions (a) and (b) of the California Rules of Court require the trial court to state on the record its reasons for imposing the upper term. According to Cardenas: “Thus, if the court intended to rely on defendant’s prior convictions it had to say so on the record. The fact the trial court could have hypothetically imposed the upper term without committing error begs the question whether the court committed error in imposing the upper term in the way it did. In other words, establishing what punishment is available by law and setting a specific punishment within the bounds of that law are two different things. It is not for the appellate court to conjure the reasons the trial court could have recited to support its sentencing decision from the many options listed in the statutes and court rules. We review the trial court’s reasons -- we don’t make them up.” (Cardenas, supra, 155 Cal.App.4th at pp. 1482-1483, fn. omitted.)
Here, as in Cardenas, while defendant’s prior conviction and probationary status were included in the probation report, they were not mentioned by the trial court as aggravating factors supporting imposition of the upper term. Therefore, defendant’s sentence on the upper term runs afoul of Cunningham. Nonetheless, the error is harmless if we can say “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” (People v. Sandoval (2007) 41 Cal.4th 825, 839.) We so conclude. The prosecution presented compelling evidence that, without any warning, defendant fired 16 rounds from an assault weapon at the unarmed Stillwell in a deserted orchard. Given the facts before it, the jury would have found defendant to be a serious danger to society beyond a reasonable doubt had this circumstance in aggravation been presented. Accordingly, we find the Cunningham error harmless.
DISPOSITION
The judgment is affirmed.
I concur: BLEASE, Acting P.J.ROBIE, J.