Opinion
C078961
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ODIS SHAWN MURPHY, Defendant and Appellant.
MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 7, 2016, be modified as follows:
1. On page 7, add this new footnote two at the end of the first full paragraph:
In a rehearing petition defendant cites a page in the record to show that Nichols did tell defendant he was responding to a call, and claims counsel made a typographical error in both her opening and reply briefs. (Rhrg. Pet., p. 5) But even if this belatedly provided citation establishes an inconsistency, we must view the record in the light most favorably to the order denying defendant's suppression motion. This also answers another claim made in the rehearing petition, regarding Nichols's exact question to defendant. The claimed factual inaccuracies are mere inconsistencies we must resolve against defendant by applying the proper standard of review.
2. With the addition of the new footnote two, subsequent footnotes in the opinion will need to be renumbered.
As modified, the petition for rehearing is denied. This modification does not change the judgment. FOR THE COURT: /s/_________
Hull, Acting P. J. /s/_________
Murray, J. /s/_________
Duarte, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F06558)
A jury found Odis Shawn Murphy guilty of possession of a firearm by a felon, and the trial court found he had two strikes (robberies). (Pen. Code, §§ 29800, subd. (a)(1), 211, 667, subds. (b)-(1), 1170.12.) The trial court sentenced him to prison for six years, and he timely appealed.
On appeal, defendant contends the trial court: (1) erred in denying his suppression motion; (2) mishandled his Marsden motions (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); (3) mishandled his new trial motion; (4) erred in permitting a postverdict amendment to the information to correct the date of a prior strike conviction; and (5) erred in denying his Romero motions (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)).
Disagreeing, we shall affirm the judgment.
BACKGROUND
On September 16, 2014, two peace officers found defendant in possession of an old, rusty loaded revolver. One officer testified they "were fielding a service call" to the area, but neither referred to a 911 call. Defendant testified and admitted he was a felon. He claimed he and a friend found the gun in a dump. The friend was going to sell the gun to an antique dealer, but gave it to defendant that night because defendant recently had been attacked by a group of assailants in that area; however, defendant also claimed he did not think the gun was operable. Defense counsel argued to the jury that defendant possessed the "unreliable" firearm only as needed for self-defense and simply intended to display it if necessary. The jury found him guilty of felon in possession.
DISCUSSION
I
Suppression Motion
Defendant moved to suppress on the ground he had been subjected to a warrantless search while in a public place, shifting the burden to the People to demonstrate the lawfulness of the search. The People opposed the motion on the ground the circumstances as they reasonably appeared to the officers authorized the brief detention and the frisk of defendant, which disclosed the firearm, giving the officers probable cause to arrest him. The trial court denied the motion after a hearing. Defendant challenges this ruling on appeal. Applying the appropriate standard of review, we find no error.
A. Suppression Hearing and Ruling
Officer Matthew Nichols--who had 15 years on the job--testified that while on patrol with Officer Morrison, he saw defendant at about 2:30 a.m. in the parking lot of a Walgreen's store. Two or three people were on the sidewalk and there was another person (Daniel Rauls) with defendant. When defendant saw the officers he began walking to the parking lot, whereupon the officers pulled in and got out of their patrol car. Nichols had said, "Hello, guys, how's it going[?]" Defendant's companion spoke to Nichols; defendant first walked five or six feet away, and then immediately moved his right hand "to his waistband area as if he was securing something on his waistband area. And then he immediately turned around and faced [the officers] and then just stood there as [Nichols] was talking to both of them." Defendant "made a furtive movement inward toward his waistband as if there was some sort of thing he was trying to secure on his person." Defendant seemed nervous, would not make eye contact with Nichols while Nichols was speaking with him, and "was grabbing the left side of his jacket area." Nichols asked if he could pat him down and defendant said, "Pat down for what?" Defendant then gestured with his right hand toward his navel area, causing Nichols to believe he might be armed. As Nichols drew closer to defendant, he saw a "large bulk," "a cylindrical-type of bulge representing a pipe or some type of object that was cylindrical within his jacket." Because Nichols thought this could be a pipe or a weapon, he held defendant from behind by the left armpit and patted him down. He first felt what he thought was a bladed object on the left side of defendant's jacket, and then felt the butt of a gun in the mid-waistband area, and called out "gun" to his partner; Morrison immediately applied a wrist-lock to secure defendant, then Nichols took control of the gun and handcuffed defendant.
Nichols testified that he had a firearm, a Taser, and pepper spray, but did not draw any of his weapons because he did not think it was necessary; he was confident the matter could be handled without using one of his weapons.
Defense counsel argued that if Nichols had really believed defendant was armed, he would have drawn one of his own weapons, but he did not do so.
After taking the matter under submission, the trial court ruled that what began as a consensual encounter resulted in a reasonable suspicion on the part of Officer Nichols, based on defendant's furtive and fidgety conduct, evasiveness, and movements towards his waistband, justifying the brief detention and patdown.
The trial court explicitly placed no reliance on information the officers allegedly had received about loiterers, having sustained a defense Harvey-Madden objection (see People v. Madden (1970) 2 Cal.3d 1017, 1021; People v. Harvey (1958) 156 Cal.App.2d 516, 523-524 (conc. opn.)). As defendant concedes, the trial court's ruling was based "on personal knowledge, personal observations of Officer Nichols."
B. Analysis
We view the facts in the light most favorable to the People. (People v. Celis (2004) 33 Cal.4th 667, 679.) A consensual encounter becomes a detention when a reasonable person (that is, viewed objectively, not subjectively) would not feel free to leave, but would feel required to remain because of a show of authority by officers or other circumstances.
"An officer may approach a person in a public place and ask if the person is willing to answer questions. . . . Such consensual encounters present no constitutional concerns and do not require justification. [Citation.] However, 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,' the officer effects a seizure of that person, which must be justified under the Fourth Amendment to the United States Constitution. [Citations.] In situations involving a show of authority, a person is seized 'if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," ' or ' "otherwise terminate the encounter" ' [citation]", and if the person actually
submits to the show of authority [citation]." (People v. Brown (2015) 61 Cal.4th 968, 974, italics added.)
At that stage, we agree with defendant that it is critical to weigh "the coercive effect of police conduct as a whole, rather than emphasizing particular details . . . in isolation." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
But "[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) When an officer reasonably believes a person may be armed and pose a threat, a brief detention (a seizure of the person) to conduct a so-called "patdown" search, or "Terry-frisk" (see Terry v. Ohio (1968) 392 U.S. 1, 27 [20 L.Ed.2d 889, 909]), is lawful.
"At issue in [Terry], was the constitutionality of a police procedure commonly known as a 'frisk' or 'pat-down' in which police officers conducting an investigation search a suspect for concealed weapons. Describing the procedure as 'a serious intrusion upon the sanctity of the person,' the United States Supreme Court nevertheless concluded that it was not 'unreasonable' if the police officer could 'point to specific and articulable facts which, taken together with rational inferences from those facts,' would warrant the intrusion. [Citation.]" (People v. Souza, supra, 9 Cal.4th at p. 229.)
Applying these rules to the facts found by the trial court supported by the record at the suppression hearing, we find no error in the denial of defendant's motion to suppress.
Defendant first contends he was detained when the officers got out of their car and began speaking to him, arguing he was thereafter submitting to "their show of authority." We disagree. Officer Nichols testified he simply said hello, and asked how things were going. Contrary to defendant's view, that innocuous question would not cause a reasonable person to feel restrained from leaving. (See In re Manuel G., supra, 16 Cal.4th at p. 822 ["Approaching the minor in a public place and asking him questions were not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave"].) The patrol car did not have its spotlight or flashing lamps illuminated, and neither officer was using a flashlight, because there was sufficient lighting in the parking lot. The fact the officers were armed--a point defendant emphasizes--is insignificant; the officers neither drew their weapons nor threatened to do so. Nichols was just talking, as he was permitted to do, before defendant triggered his suspicions by his nervous demeanor and fidgeting and his repeated gestures toward his waistband, as well as Nichols's observation (before the seizure) of a large cylindrical object under his jacket.
Defendant cites People v. Garry (2007) 156 Cal.App.4th 1100 (Garry), but that case is distinguishable. In Garry, an officer was on nighttime patrol in a high-crime area when he lit his spotlight on the defendant, got out of the patrol car, and walked " 'briskly' " towards the defendant, closing a distance of about 35 feet in two to three seconds, and then asked the defendant whether he was on probation or parole. (Id. at pp. 1103-1104.) The defendant claimed the officer's "use of the spotlight and rapid approach" was so intimidating as to amount to a detention. (Id. at p. 1107.) After reviewing many cases addressing the use of spotlights or sudden approaches by officers--that is, nonverbal actions claimed to be intimidating--Garry found the officer's actions "constitute a show of authority so intimidating as to communicate to any reasonable person that he or she was ' "not free to decline [his] requests or otherwise terminate the encounter." ' " (Id. at p. 1112.) The differences between this case and Garry are many. No spotlights or flashlights were used, there was no evidence that either or both officers rushed towards anybody, and Nichols did not demand to know whether defendant was on probation or parole. Garry is not on point here.
Defendant argues that he began walking away but turned around after five or six feet because Nichols asked him how things were going, but that is not an accurate reading of the record. Nichols testified he asked the two people how things were going first ("Hello, guys, how's it going[?]"), then defendant walked five or six feet away while Rauls stayed to talk, then defendant turned around and faced the officers, who then talked to both men. Later Nichols testified that before defendant turned around he had not given any commands.
Defendant also contends that Nichols "didn't engage [defendant] in casual banter but told him he was responding to a call." (Italics added.) The record citation supplied does not support this assertion, but refers to a page of a sealed Marsden hearing transcript. Nichols did testify that he had received a call and responded to the area, but he did not testify that he conveyed this information to defendant. That fact, not having been communicated to defendant, was irrelevant to whether defendant would or would not have felt free to leave. (Cf. People v. Linn (2015) 241 Cal.App.4th 46, 58 [one factor is "whether the police indicated the defendant was suspected of a crime"].)
Defendant's briefing rehashes the argument he made to the trial court that the fact Nichols did not draw a weapon shows he did not think he was in danger, given his 15 years of experience. Nichols, an experienced police officer, explained that he thought he could handle the situation without a weapon, and he did so. This explanation was reasonable, and the trial court was entitled to credit it.
Defendant emphasizes that Nichols did not actually see a weapon, only "furtive" movements towards the waistband, that there was no evidence this was a high-crime area, and the area was well-lit. Taking the last point first, the area was well-lit because it was the parking lot of a drug store, but it was 2:30 in the morning, an unusual time for a group of people to congregate there, and a time when many crimes occur. As for the first point, Nichols saw a suspicious bulge in defendant's clothing after observing his nervous behavior and defendant reaching towards his waistband. Nichols "was not required to await an overt act of hostility before acting to neutralize the threat he reasonably perceived." (People v. Rios (2011) 193 Cal.App.4th 584, 599.)
Considering all of the circumstances (construing the testimony in the light favorable to the order denying the motion to suppress), including the early morning hour, defendant's presence behind a store at that hour, defendant's unusual fidgeting behavior, his refusal to make eye contact even though he had turned to face the officers, and his clearly alarming actions of grabbing towards his waistband, we find the record before the trial court supports Nichols's actions to ensure his safety and that of his partner. (See, e.g., People v. Avila (1997) 58 Cal.App.4th 1069, 1074 [individually harmless facts can combine to create a reasonable fear on the officer's part].)
II
Marsden Motions
Defendant made three unsuccessful Marsden motions because of claimed problems with appointed trial counsel. On appeal, he contends the trial court mishandled these motions in various ways. We find no error.
A. Background
1. First Marsden Motion
On January 14, 2015, just before the suppression motion was heard, defendant made his first Marsden motion. He claimed trial counsel had not explored bail, nor investigated the alleged strikes, nor had an investigator looked for a key witness, nor filed a written reply to the opposition to the suppression motion. Counsel explained he had been in criminal practice for over 10 years and had done about 50 jury trials. He had tried to find the witness (presumably Rauls), but he was homeless; he had reviewed video recordings of the encounter, but they were consistent with the police report; he had also reviewed the patrol car's in-car camera recording, but it, too, was generally consistent with the police version; he had reviewed the applicability of Proposition 36 to defendant's case (an initiative that precluded what otherwise would have been a life sentence, see People v. Conley (2016) 63 Cal.4th 646, 652-653); and he had shared all discovery with defendant except the in-car camera recording, which was unhelpful. As for the strikes, he had looked for and found this court's unpublished opinion affirming defendant's assault with a deadly weapon conviction, which involved the same strikes as were charged in this case. Defendant was confused because the trial court in the felony assault case had stricken one strike at sentencing, but that did not mean both could not be pleaded in this current case.
See People v. Murphy (Nov. 14, 2001, C036129 [nonpub. opn.].
The trial court noted that apparently defendant thought the assault prior (used to show he was a felon for purposes of the felon-in-possession charge) was the charged strike, rather than the two robberies, and the trial court clarified that mistake. Defendant believed that because a strike had been stricken in the assault case, it could not be charged now; the trial court again tried to correct him, and praised counsel's abilities, but defendant insisted on seeing legal authority for the proposition, which counsel endeavored to get. When defendant mentioned the bail issue, it was explained that two strikes made it $1,000,000, not $500,000, but defendant never claimed he could make bail either way. When defendant (inaccurately) claimed the two robberies were on the same day, the trial court indicated that would be reviewed. When defendant was told he would not be allowed to ask questions at trial, he said he wanted to "use [his] Faretta;" i.e., proceed without counsel. (See Faretta v. California (1975) 422 U.S. 806 (Faretta).) Counsel said he would discuss that issue with defendant, and the trial court then denied the first Marsden motion.
2. Second Marsden Motion
After the jury verdict was returned, the trial court held a trial on the strikes, where defendant again argued the strikes had been dismissed in prior cases, and again mentioned Faretta. After the usual warnings and paperwork, the court granted his Faretta motion. The court restarted the trial on the strikes, and found both to be true.
On February 20, 2015, the first date set for sentencing, defendant's motion for a continuance due to a delayed probation report was granted. Defendant then reported a prior legal conflict with trial counsel, who was present, so the court held what was characterized as a second Marsden motion.
Defendant had told the probation officer that trial counsel was the son of one of defendant's 1988 robbery victims. At the closed hearing, prior counsel testified that he was not. The trial court found defendant had not shown any conflict had tainted the prior attorney-client relationship. Defendant admitted he had had inklings of the alleged-victim issue earlier, but had not mentioned it at the first Marsden hearing. Because defendant claimed this mistaken belief had formed "a large part" of his reasons for exercising his Faretta rights--although he had not said so at the time--the trial court, in an abundance of caution, offered to appointed new counsel, who was accepted by defendant. During colloquy, defendant also complained that prior counsel had been unwilling to impeach Nichols, but the focus of the second Marsden hearing was the claim counsel was the son of a prior victim. The trial court appointed new counsel, who accepted the appointment "on behalf of the panel."
3. Third Marsden Motion
The indigent defense panel reassigned the case to prior counsel. The trial court set the matter for a hearing to resolve the propriety of the appointment. At that hearing, held on March 6, 2015, the court agreed that because no conflict of interest had been found, defendant's original counsel should have been reappointed, and the order appointing new counsel was vacated. When the trial court asked whether defendant wanted to proceed with prior counsel or continue representing himself, defendant made his third Marsden motion.
At the hearing, defendant directly claimed that defense counsel had failed to impeach the "key witness," i.e., Nichols, and he had "Brady" evidence (see Brady v. Maryland (1963) 373 U.S. 83 ) and proof of perjury. He also asserted that the trial court could not change the ruling appointing new counsel. The court found that because it had never found a legal conflict, there was no basis under the indigent defense panel's rules for the court to appoint someone else. When asked what other issues he had with prior counsel, defendant said he "hate[d] his guts. Is that good enough?"
Counsel responded that he knew of no information to impeach the officers, and the reason he did not ask why they had been sent to that location was tactical; it was not relevant to the charges, and he did not want the jury to infer defendant had been the subject of a complaint. Further, he had tried to find defendant's proposed witness. Counsel knew of no evidence that had been withheld by the prosecutor.
Defendant insisted that certain call logs showed the officer lied about being sent to that location, and complained that counsel had not tried to find any impeaching evidence about the officer's alleged history of fabricating reports. Counsel replied that he knew of no basis to file a Pitchess motion (see Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) to try to see the personnel records of the officers; that is, he did not believe he could make the threshold showing to bring such a motion.
Counsel explained that the call log issue was a mistake by the prosecutor: "I was aware that the DA had discovered the wrong thing to me. I had zero. Zero is better than whatever else they would have found." In other words, either the call would have nothing to do with defendant, as the mistakenly disclosed call log showed, or it might have connected to defendant, which would be harmful. In such circumstances, it was preferable to leave the mistake alone. "More evidence wouldn't have helped him. It could only have hurt him." Tellingly, the trial court commented, "I concur with that having heard the [s]uppression motion."
Counsel reiterated that his parents had not been victimized by defendant, and opined that defendant was trifling with the court, playing games, as he had done when he represented himself in the prior assault case. Counsel added that defendant had consistently disregarded all of counsel's advice about the difficulty of his plight (that is, having been caught red-handed with a firearm on his person). Counsel did not believe the attorney-client relationship had broken down.
The trial court found no legal conflict had existed and explicitly believed counsel as to any factual discrepancies. Defendant refused to accept prior counsel, so the trial court provisionally reappointed prior counsel at the Marsden hearing, with the expectation of restoring defendant's Faretta rights in open court, which was done. A number of motions defendant had filed without counsel were then continued.
In a postjudgment "clarification" order, the trial court stated that it always had been willing to reappoint prior counsel but not a new attorney "as [defendant] used manipulating and delaying tactics in his attempts to get rid of his former attorney and have someone else appointed."
B. The Law
A Marsden hearing is supposed to answer two questions: (1) is trial counsel providing ineffective assistance of counsel?; and (2) has the attorney-client relationship become unviable, that is, has it broken down to the extent that it has impaired the right to effective counsel? If the answer to either question is in the affirmative, an indigent defendant is entitled to new counsel. The questions are determined at an in camera hearing (to preserve defense confidences) at which a trial court must make an adequate inquiry and allow the defendant to air grievances, and allow trial counsel to respond. The trial court resolves factual differences, and exercises discretion to determine whether the failure to replace counsel would substantially impair the right to counsel. A defendant cannot manufacture conflicts, nor refuse to cooperate to get new counsel, nor demand counsel of choice, nor get new counsel simply because she or he dislikes or distrusts counsel or disagrees with counsel's tactical decisions. (See People v. Myles (2012) 53 Cal.4th 1181, 1207-1208; People v. Clark (2011) 52 Cal.4th 856, 913, 918; People v. Taylor (2010) 48 Cal.4th 574, 599-601; People v. Michaels (2002) 28 Cal.4th 486, 522- 523; People v. Welch (1999) 20 Cal.4th 701, 728-729; People v. Smith (1993) 6 Cal.4th 684, 696.)
C. Analysis
Defendant contends that the trial court erred by vacating its order appointing new counsel and denying defendant's third Marsden motion. He claims the record shows prior counsel provided ineffective assistance of counsel by failing "to investigate and present a potentially exculpatory defense," and the attorney-client relationship had broken down to the point where ineffective assistance was likely to result. He adds that if we reject those points, reversal is still required because the trial court did not conduct a thorough enough inquiry into prior counsel's actions. We reject these points and find no error.
1. Effective Assistance of Counsel
Defendant claims counsel's decision not to point out the prosecutor's error in discovering the wrong call records "was critically flawed"; he speculates that if Nichols had made up the reason for being at the scene, his credibility would have been impeached, which would have supplied a basis for a Pitchess motion. Further, such impeachment could have undermined the officer's trial testimony.
Counsel is ineffective if he or she acted below the standards of professional competence and the defendant was prejudiced thereby. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) A reviewing court will not second-guess a trial attorney's informed decisions about trial evidence. (See, e.g., People v. Hinton (2006) 37 Cal.4th 839, 876.) This flows from the fact that "[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 695].) But a decision is not informed if it is made in ignorance, or is based on an unreasonable failure to investigate. (See People v. Bolin (1998) 18 Cal.4th 297, 334; People v. Ledesma, supra, at p. 215.) As for prejudice, defendant must show a "substantial, not just conceivable" (Harrington v. Richter (2011) 562 U.S. 86, 112 [178 L.Ed.2d 624, 647]) probability that, but for counsel's errors, the result would have been better. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, at p. 694; see In re Marquez (1992) 1 Cal.4th 584, 603.)
Defendant's claim of ineffective counsel disregards counsel's explanation of his actions regarding the suppression motion. Why the officers were at that parking lot was not important, because they had a right to be in a public place. Once counsel saw there was no loitering report in the discovery he made a rational tactical decision to remain mute, because if he raised that point, the prosecutor might well have found the correct call records and brought in sufficient evidence to satisfy the Harvey-Madden rule, thereby contributing to the basis for the detention and frisk.
An officer may act on information received, but the Harvey-Madden rule prevents an officer from falsely claiming another officer provided incriminating information, or from giving another officer false incriminating information. It requires the People, when challenged, to prove the information was actually received by the officer whose actions are at issue. (See People v. Brown, supra, 61 Cal.4th at p. 983; People v. Armstrong (1991) 232 Cal.App.3d 228, 234-237.)
Therefore, as trial counsel pointed out--and the trial court agreed--it was rational to suppose that raising an issue about a 911 call would likely hurt defendant. Defendant speculates that Nichols was perhaps lying about receiving any call, and argues there was a possibility that the trial court or jury might have found that he therefore lied about his entire account. We disagree. First, the trial court stated the issue would not have made a difference at the suppression hearing. Second, in denying a new trial motion, the trial court found the point was immaterial. We agree with both of these observations.
A Pitchess motion to discover an officer's history is not designed to allow fishing expeditions. (See Serrano v. Superior Court (2017) 16 Cal.App.5th 759, 776.) The defense must show "good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3).) While the good cause threshold is set low (see Brant v. Superior Court (2003) 108 Cal.App.4th 100, 104-108), counsel could rationally conclude such a motion would not meet the threshold requirements in this case.
As we have said before, "[i]t is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel." (People v. Constancio (1974) 42 Cal.App.3d 533, 546; see People v. Eckstrom (1974) 43 Cal.App.3d 996, 1000-1003.) "A lawyer necessarily and properly exercises professional judgment about how to allocate the limited time for preparation in a way likely to produce the most benefit for the client. These time allocation decisions are by logical necessity made in partial or complete ignorance of what would be accomplished if time were allocated differently. Sometimes researching the law is a waste of time, while finding and talking to a witness would produce a defense bonanza. Often there is not enough time to do both to the maximum possible extent. Experienced lawyers usually know what they are doing and are acting wisely for their clients, when they make their decisions about what to do, and what need not be done, to prepare the case." (United States v. Perez (9th Cir. 1997) 116 F.3d 840, 851 (conc. opn. of Kleinfeld, J.).)
If, indeed, there is any basis to believe there was important evidence to be found, defendant's remedy lies in habeas corpus. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) But just because defendant claimed the supposed service call may have been made up and was therefore critical impeachment evidence does not mean trial counsel was required to follow defendant's tactical wishes, and does not mean the trial court did not adequately assess trial counsel's effectiveness in making tactical decisions.
Defendant posits that trial counsel should have sent an investigator to the gas station to try to find out if a call to the police had been made that night, and the failure to do so amounts to constitutionally inadequate representation. Again, we disagree, and for the reasons stated: A reviewing court will not second-guess a trial attorney's informed decisions.
2. Conflict
Defendant contends the trial court abused its discretion by vacating the order appointing new counsel, because whatever relationship prior counsel had had with defendant had irremediably broken down. This argument views the record in the light most favorably to defendant.
Prior counsel, when directly asked by the trial court whether he thought the relationship had broken down, said it had not; defendant had understood him but had disregarded his advice, and was playing games with the court. Nevertheless, counsel stood ready to be reappointed and aid defendant. True, defendant said he hated counsel's guts, but the trial court was not required to believe defendant was doing anything other than manipulating the system. His belated claim that prior counsel was the child of one of his prior victims made that clear enough, and the trial court stated it credited counsel over defendant. Thus, the court could rationally find that despite defendant's accusations, trial counsel was sincere when he represented that the relationship had not broken down, as defendant insists it had. That was a factual issue resolved by the trial court, and its resolution thereof is supported by the record. Defendant was entitled to effective counsel, not counsel he liked. If saying, "I hate his guts" were enough to get new counsel, the criminal justice system would crash to a halt.
Defendant speculates that his dissatisfaction with trial counsel began when counsel initially talked him out of exercising his Faretta rights. But at the end of the first Marsden hearing counsel pointed out that defendant had represented himself unsuccessfully in the assault case, and he "would be much better off with me than without me" because "I think I'm a better attorney than he is. And I would like an opportunity to talk to him before we go Faretta." Defendant then went through the entire jury trial with counsel, and did not again complain until after he was found guilty of the felony charge, whereupon he made his second Marsden motion.
Defendant relies on People v. Kirkpatrick (1994) 7 Cal.4th 988 (Kirkpatrick) (overruled on another point by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22). That case involved a capital penalty phase and an attorney who formally and actively opposed a defendant's Faretta motion for legal reasons. (Kirkpatrick, supra, at pp. 1007-1008 & fn. 2, 1010-1011.) Here, counsel merely proposed to talk with defendant about his decision, and recommended keeping counsel. Although Kirkpatrick agreed counsel should not formally oppose a Faretta motion, "[t]his is not to say that defense counsel must suppress misgivings and actively support the motion . . . , or even that counsel must remain silent. Without formally opposing self-representation, counsel can assist the court and serve the [client's] best interests by advising the client of the risks and disadvantages of self-representation; by providing the trial court, upon request, with relevant nonprivileged information and pertinent legal authority; and by correcting any misstatement of fact by the client. [Citations.]" (Kirkpatrick, supra, at p. 1010.) Counsel's actions here were consistent with Kirkpatrick.
Nor do we agree that trial counsel was arguing "against" defendant by giving his opinion that defendant was playing games with the system. He was being attacked as conflicted and incompetent, and he was replying with his version of events. The fact defendant claimed to distrust or hate counsel did not compel the trial court to believe him.
3. Adequacy of Inquiry
Defendant claims that if we reject all the above points, the trial court had to ask why trial counsel believed the prosecutor had disclosed the wrong call log. We disagree. Counsel's decision was sufficiently explored at the third Marsden hearing. The trial court could accept counsel's representation and was not required to scour over his paperwork.
III
New Trial Motion
Defendant filed a confusing motion for a new trial that reiterated claims about Nichols having committed perjury regarding how he came to be sent to the location of the arrest, and claimed lack of discovery of impeachment information about Nichols, deprivation of his right to counsel, violation of his right to confront the absent gas station clerk who supposedly made the original call, and so forth. He attached a police log purportedly for that incident, reflecting "No 911/incoming calls--radio only." But this document was prepared after the fact, as it also includes a summary of what happened: "Gas station attendant called 911 about 2 guys loitering officers responded stopped 2 guys Murphy and Daniels [sic, Rauls] found a gun and knives on Murphy made arrest. Felon in possession of weapon." And attached is a printout which shows a "Call taker" and references the name, identification number, and desk location. This suggests that a call was received, resulting in the service (or dispatch) call to the officers.
In any event, the trial court correctly stated that that issue had been explored in a prior Marsden motion. The court found defendant's motion did not show the materiality of his Pitchess request, and he had not filed an affidavit of good cause, as required by statute. After further colloquy, the court denied the new trial motion, finding any inconsistency in the officer's testimony about "a 911 call versus a dispatch call versus a radio broadcast rather than, as he testified, a service call, that would not have made any difference in the outcome of the trial."
Defendant replicates claims we have already rejected, to the effect that trial counsel had provided ineffective assistance, and the trial court abused its discretion in not appointing new counsel. (See part II, ante.) We remain unpersuaded.
Defendant also contends a fourth Marsden hearing was required. We disagree. Defendant had been representing himself for some time, and the issues had been thoroughly reviewed. The only new alleged "fact" was the call log stating "No 911/incoming calls--radio only." That snippet, assuming it was authenticated and was the actual record of the call to which the officers were responding, did not show that Officer Nichols was lying when he testified he was responding to a service call rather than a radio call; as the trial court pointed out, it was a trivial point that did not show perjury by the officer.
IV
Motion to Amend the Information
While the jury deliberated, defendant waived his right to a jury trial on the strikes, in the event the jury found him guilty of a felony. After the guilty verdict but before the bifurcated court trial on the strikes, the prosecutor pointed out that the date of defendant's strike convictions was misstated in the information as May 30, 1988, instead of June 7, 1989. Over a defense timeliness objection, the trial court granted a motion to amend the information to change that date, noting that record of the convictions had been given to the defense in discovery, a point trial counsel conceded. Defendant now claims this was error.
The unamended information alleged defendant had been convicted of two separate robberies, each in Sacramento County case No. "87939," on May 30, 1988. The standard prison packet discovered to the defense (see Pen. Code, § 969b), contains an abstract of judgment showing the date of conviction of two second degree robberies in Sacramento County on June 7, 1989, in case number "87939," and shows that those crimes were committed in 1988. Thus, there was a patent discrepancy.
But the defense had notice of which of defendant's prior convictions were alleged as strikes. The reference to the specific case number in the information linked directly to the case number on the abstract of judgment in the prison packet. Therefore, the defense was not sandbagged by this technical pleading error.
Two statutes are relevant to this issue. First, "[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits." (Pen. Code, § 960.) As something of a corollary to that statute, a trial court (with exceptions not relevant) may allow an amendment to an information "for any defect . . . at any stage of the proceedings." (Pen. Code, § 1009.)
A defendant must be given adequate--albeit not perfect--notice of the charges. (See 4 Witkin, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, §§ 207, 220-221, pp. 466-467, 481-483.) The unamended information, coupled with the prison package, gave adequate notice to the defense regarding which of defendant's prior felonies were alleged to be strikes. The mistake "would not prevent a defendant of common understanding from being fully informed of the prior with which he was charged. Defendant, therefore, was not prejudiced in the preparation of his defense to the allegation of the prior conviction." (People v. Sanchez (1969) 2 Cal.App.3d 467, 480; see People v. McQuiston (1968) 264 Cal.App.2d 410, 417 ["The charge remained the same, and it is apparent from the record that the error in date and court was the result of a simple clerical or typographical mistake made in the office of the district attorney at the time the information was prepared; the certified record of the prior conviction . . . bears this out. The trial judge did not abuse his discretion in permitting the amendment"]; see also People v. Hitchcock (1894) 104 Cal. 482, 484 ["We do not intend to encourage carelessness in criminal pleading, but where a defect in an indictment or information is merely technical, and does not affect the substantial rights of the parties, we are not at liberty to reverse the judgment"].)
Contrary to defendant's view, the trial court did not lack "jurisdiction" to grant the motion to amend. His briefing cites and discusses two cases where after a defendant waived the right to a jury trial on pleaded priors, additional priors were added, which does create a jurisdictional problem. (See People v. Tindall (2000) 24 Cal.4th 767, 769-770; People v. Gutierrez (2001) 93 Cal.App.4th 15, 19-24.) In this case no priors were added; the same priors were at issue, they were just misdated. That should not have happened, but it is not a jurisdictional error. Defendant agreed to waive his right to a jury trial on two robbery prior convictions in a particular Sacramento County case (by number), and thereafter he received a court trial on the robbery convictions in that very case. It was an innocuous mistake that was properly fixed, not a jurisdictional error.
Trial counsel objected that the amendment was "untimely," but we address the purely legal claim that the amendment was beyond the trial court's jurisdiction.
This answers the alternative contention that trial counsel provided ineffective counsel because he did not move to withdraw defendant's waiver of a jury trial. Such a motion would have failed, because there is no claim that the waiver of a jury trial on the Sacramento robbery priors in the numbered case referenced in the information was incomplete or erroneous in any way. Defendant cites no authority for the proposition that changing the dates required a fresh waiver of a jury trial.
V
Romero Motions
Defendant contends the trial court abused its discretion by not striking his strikes. He filed a Romero motion (with a supplement) before sentencing, and later invoked Proposition 47 and claimed the sentence was unjust, in what the trial court treated as a motion to recall the sentence (Pen. Code, § 1170, subd. (d)) and denied without a hearing. We find no abuse of discretion.
A. Background
At the Romero hearing before sentencing, defendant reiterated his belief that because the robbery strikes had been alleged in the (prior) assault case, but one was dismissed by the trial court in that case, it was improper to use it against him. He also argued both were stale, and that he was not told at the time of conviction that they could be used as strikes, because they predated the "Three Strikes" law. He claimed neither involved a weapon or great bodily injury.
The prosecutor recited defendant's criminal history beginning in 1982 with five counts (allegedly) of aggravated robbery in Arkansas, resulting in a 20-year sentence, mostly suspended. He committed the two strike robberies in Sacramento in 1988, had a parole violation in 1995, and suffered the felony assault with a deadly weapon conviction in 2000, receiving a 13-year sentence, after which he had two parole violations, in 2011 and 2012. Because defendant had not led a blameless life, and had been incarcerated for much of the intervening time, the prosecutor argued the two robberies should not be deemed stale and they should not be stricken.
Defendant replied that there were not five robberies in Arkansas, and claimed that because the assault conviction had not been alleged as a strike in this case, "it must not have been serious." Defendant also argued neither of the charged strikes involved a weapon, and claimed neither (robbery) victim was injured, a claim refuted by the probation report.
The Sacramento robberies were two separate purse snatches, each resulting in injury to the respective victim. The record before the trial court for defendant's prior assault conviction shows he attacked his then-girlfriend with a crowbar, then stole money and jewelry from her.
Responding to defendant's supplement to the motion, the trial court found a difference between striking a strike for sentencing purposes, and dismissing a conviction under Penal Code section 1385 (cf. People v. Barro (2001) 93 Cal.App.4th 62, 65-68), and also rejected defendant's claim that the fact his strikes predated the Three Strikes law was relevant. As relevant here, the trial court noted that there were two Arkansas robberies. After further comments, the trial court denied the Romero motion, finding defendant had a long history of robberies and use of guns, the use of violence in the (Sacramento robbery) strikes, and hitting his girlfriend with a crowbar in the prior assault case, and found he fell within the spirit of the Three Strikes law.
As we explain post, this was incorrect.
Defendant later wrote to the court arguing that his sentence was unjust and the Three Strikes law should not apply. The trial court treated this as a motion to recall the sentence (Pen. Code, § 1170, subd. (d)) and denied it.
B. Analysis
Defendant largely construes the record in the light most favorably to himself, in defiance of the appropriate standard of review of a trial court's denial of a Romero motion. At best, counsel has demonstrated that another judge on another day might have chosen to strike one or both strikes, but counsel has not shown an abuse of discretion by this trial judge.
Our Supreme Court has set forth the proper standard of review as follows:
" '[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(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 scheme's 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.' [Citation.]
"Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.
"In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. . . . '[T]he sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.]
"But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377-378, italics added.)
Defendant does not show an abuse of discretion by the trial court in adhering to the presumptive sentencing outcome, he merely argues over inferences fairly drawn.
We agree there was confusion regarding defendant's Arkansas record. The probation report described five counts of armed robbery on one day in Arkansas, in which defendant threatened to blow the heads off at least three of his victims, and stated he was convicted of all five counts. But an Arkansas prison packet in the record, referenced by defendant at the Romero hearing, shows defendant was charged with one count of "aggravated robbery" in Arkansas, based on his using a gun to take $2 from one named victim. An "Official Version" of the facts describes a single robbery at gunpoint in 1982 that netted defendant $2. The information also references only one victim. The charge was dropped to "simple robbery" by way of a plea in which defendant was to be treated as a youthful offender. Defendant was discharged from parole in November 1987. It thus appears that although defendant may have committed five robberies, he was allowed to plead guilty to one. But there is no doubt that he committed a robbery with a firearm in that case.
Within one year of being discharged from Arkansas parole in November 1987, defendant committed the two 1988 purse snatch robberies (the Sacramento strikes) for which he was convicted in 1989. One was committed with accomplices and involved grabbing a woman by her hair as she was in her car, and the other was from a woman in a store who fell down and was dragged as she tried to hold her purse. Defendant was sentenced to seven years in prison. The relevant prison packet shows instances of lost credit or secured housing placement while in prison for these robberies, and shows a return to custody after a release on parole in 1994. Defendant was discharged from parole in September 1998.
Less than a year later, in June 1999, defendant attacked his girlfriend with a crowbar and stole cash and jewelry from her. He was convicted of assault with a deadly weapon (the prior assault). The trial court struck one of the two 1989 robbery strikes that had been proven (but did not dismiss it), and sentenced defendant to prison for a total of 13 years. The probation report in this case shows that defendant was returned to custody from parole on several occasions and was discharged from parole in October 2012.
Less than two years later, defendant committed the instant felony, in September 2014. Thus (disregarding a 1980 juvenile commitment), from 1982 to the date of the current offense, defendant has either been in prison or on parole almost continuously--for the vast majority of his adult life--and his performance on parole has been poor. The trial court had little choice but to find, based on defendant's lengthy record, that he was a "revolving door" criminal who fit comfortably within the spirit of the Three Strikes law.
Although defendant merely possessed a gun and did not use it, he was a felon and should not have had it. (See People v. Myers (1999) 69 Cal.App.4th 305, 307-308, 310 [felon found with two firearms did not fall outside spirit of Three Strikes law].) It was a rusty gun, but it was loaded, and there was no proof it was not operable. The trial court was entitled to disbelieve defendant's claim that he and a friend found the gun in a dump and he only took it from his friend for protection after he was attacked by other people, particularly given the jury's rejection of the defense claim of transient possession of the firearm for self-defense. Although the record indicates defendant has had alcohol and mental problems in the past, and was homeless at the time of this offense, he denied present alcohol problems, or any mental problems, when he spoke with the probation officer in this case. Further, poverty is not defense to criminal charges except in rare cases such as where a theft of food or a burglary to obtain shelter from the cold might be justified on the grounds of necessity. (See People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [describing elements of the defense]; 1 Witkin, supra, Defenses, § 62, pp. 500-501.) Defendant claims his mental state at the time of prior offenses should be considered, and we do not disagree, but that does not mean a mature felon with no current alcohol or mental problems, but with a violent criminal record, falls outside the spirit of the Three Strikes law when he feloniously possesses a loaded and concealed firearm at night.
Defendant suggests the jury believed his testimony but found it did not measure up to a defense, and bolsters this claim by referencing a cotemporaneous acquittal on a misdemeanor dirk-or-dagger count. This ignores the rule that an acquittal on one count does not inform about the jury's reasoning on another; the acquittal could have been due to compromise, lenity, or jury nullification. (See People v. Lewis (2001) 25 Cal.4th 610, 655-656; People v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657) Thus, we will not infer that the jury "took [defendant] at his word" on any point, as defendant indicates should be done.
Although the two strikes were charged in one case, that fact does not show defendant's criminality was limited to a single period of aberrant behavior. Although such a fact could help support an order striking a strike (see People v. Garcia (1999) 20 Cal.4th 490, 503), it does not compel the striking of a strike, particularly when viewed without considering a defendant's entire criminal history.
Defendant insists that because one of his two charged strikes was stricken for sentencing purposes in his assault case, it should not have been used again. But lenity in the past does not confer carte blanche.
Defendant also views his crimes as "stale," but we disagree. His record shows a life-long pattern of serious criminality involving guns and violence, as well as parole violations dating to 2012, less than two years before the instant offense. (See People v. Philpot (2004) 122 Cal.App.4th 893, 907 [parole violations and "lack of meaningful crime-free periods" supported denial of Romero motion].)
Contrary to defendant's view, reaching middle age (he was born in 1963) is not a basis for striking a "revolving door" criminal's strike, particularly when much of his life was spent either in custody or on parole. (See People v. Strong (2001) 87 Cal.App.4th 328, 331-332, 338-340, 345, 347 [reversing order striking a strike in similar case].) In this connection defendant cites People v. Bishop (1997) 56 Cal.App.4th 1245, which upheld an order striking two of three strikes for a 50-year-old defendant whose life of crime was in aid of feeding a drug addiction finding the resulting 12-year sentence was appropriate. (Id. at pp. 1247-1248, 1251.) But we have explained in a prior case that Bishop predated, the relevant "outside the [Three Strikes law] scheme's spirit" test established by subsequent Supreme Court precedent cast substantial doubt on Bishop's analysis. (People v. Strong, supra, at p. 342.) In any event, while a trial court may consider a defendant's age, that does not compel the trial court to find age to be a mitigating factor for Romero purposes. The trial court acted well within its discretion by finding defendant's life-long history of violent criminality, plus his parole violations, showed that his 1988 robberies were not stale.
Conceivably, another judge might have acted differently, but the trial court did not abuse its discretion in declining to depart from the presumptive Three Strikes sentence, and any error regarding the number of Arkansas robberies does not affect our analysis.
DISPOSITION
The judgment is affirmed.
DUARTE, J. We concur: HULL, Acting P. J. MURRAY, J.