Opinion
B223938
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. ANGEL NAVA, Defendant and Appellant.
Nina Marino, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA085253)
APPEAL from the judgment of the Superior Court of Los Angeles County. Charles E. Horan, Judge. Affirmed.
Nina Marino, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Angel Nava was convicted of attempted second degree robbery. In a bifurcated proceeding, the trial court found true the allegation of a prior strike conviction for attempted first degree burglary which also qualified as a five-year prior under Penal Code section 667, subdivision (a)(1). The trial court sentenced defendant to nine years in prison. On appeal, defendant contends the trial court erred in refusing to instruct the jury on the lesser included offense of attempted theft and in denying his second Marsden motion. Finding no error, we affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
On an early Sunday morning in November 2008, Paul Williams was putting lawn seed in his front yard when he heard voices coming from the other side of the hedges that separated his house from his next door neighbors. He heard a man say repeatedly, "Just let me go," and a woman say "no." Initially, Mr. Williams decided to mind his own business. His neighbors had only lived next door for one or two months, they did not speak English very well, and Mr. Williams and his wife preferred to keep their privacy. But then he heard a lot more commotion, and an older gentleman ran out the front door of his neighbors' home and said, "Call 911." Mr. Williams ran around to the other side of the hedges with a shovel in his hand and saw his neighbors pushing defendant, who was on a bicycle in the driveway, into the hedges and pinning him there.
Mr. Williams dropped his shovel, grabbed defendant's arm and helped his neighbors pull him off the bicycle and force him onto the lawn face down. A girl came outside the house and handed Mr. Williams a phone so he could speak with the 911 operator. Defendant struggled to get loose, and Mr. Williams threatened to smack him in the head with the shovel to try to scare him into lying still. But defendant continued to struggle, and Mr. Williams hit him on the back three times to subdue him until the police arrived five or ten minutes later. Mr. Williams saw defendant had attached to his belt a sheath for a long, narrow knife, but he did not see the knife. Mr. Williams also saw an open gym bag with hand-powered tools and an owner's manual inside. The bag was lying on the ground between the bicycle and the hedges.
Pomona Police Officers Ryan Rodriquez and Vincent Asuncion arrived, and Officer Rodriquez "saw pandemonium in the front lawn." Defendant was on the lawn, and three or four other people were trying to hold him down. They called to the officers excitedly, pointed to defendant and said, "This is the guy." The officers handcuffed him. Officer Rodriquez saw the tool bag on the front lawn by the driveway. The bag contained four or five tools, including several saws and nail guns. He also saw the bicycle. Someone withdrew a seven-inch knife from the mail slot on the exterior of the house and handed it to Officer Asuncion. The officers removed the sheath from where it was dangling through a hoop on defendant's belt. They took the knife and sheath as evidence but left the bicycle and tool bag with the victims. Officer Rodriquez showed the knife and the sheath to the jury and identified them as the ones recovered that day.
Three members of the Park family testified through a Korean interpreter, including the daughter M. J. Park, the mother M. S. Park, and the father, K. Park. Miss Park, who is 24 years old, speaks English but not well enough to testify without an interpreter. On the morning of the attempted robbery, Miss Park was awakened by her mother's voice loudly crying "thief" in Korean. Miss Park went outside, saw her mother holding defendant, who was on her father's bicycle, and heard defendant repeatedly say "let me go." Defendant held a big bag belonging to her father in his right hand and the handlebar of the bicycle in his left hand. Miss Park grabbed defendant to help her mother hold him and held onto the bicycle. Defendant said "let me go" repeatedly but Miss Park kept holding on. Miss Park saw a knife inside a sheath that was attached to defendant's belt. She saw defendant pulling on the knife and told her mother to stay away from defendant. Miss Park then pushed defendant and the bicycle into the foliage and kept pushing on him until her father, her sister, her sister's boyfriend and another friend joined them, and the police arrived.
Mrs. Park testified she was standing in her kitchen looking out a window into her backyard on the morning of the attempted robbery when she saw defendant moving about in the backyard. There was a shed in the backyard where the family kept Mr. Park's tools and near where the family kept the bicycle. Mrs. Park screamed and ran out the front door. She saw defendant astride the bicycle coming through the gate from the backyard. She saw he had a bag with her husband's tools inside, and she said to him in English, "This is my bag. Put it down." Defendant said, "It's mine," and Mrs. Park replied, "No, it's mine," in English. Defendant then kicked Mrs. Park in the lower abdominal area four or five times. The Parks' dog was barking, and Mrs. Park yelled, in Korean, "Thief." Then people came out of her house. Her daughter, Miss Park, said, "He has a knife on him." Defendant also told her he had a knife. After her family and friends came out of the house and Mr. Williams joined them, they managed to get defendant down on the lawn, and Mrs. Park took the knife out of the sheath on his belt and put it in the mail slot. She gave the knife to the police when they arrived. Mrs. Park believed the previous owner of her home had left the knife, though she was not certain where the knife came from.
Mr. Park testified he was awakened on the morning of the attempted robbery by his dog's barking and his wife's screaming. Mr. Park, who is a handyman, testified that a church for which he had worked gave him the bicycle, and it was kept by the shed in the backyard. The bag found outside his home on the day of the attempted robbery belonged to Mr. Park, and he had last seen it inside the shed. He had put a circular saw inside the bag, and he last saw the other tools that were in the bag on the day of the attempted robbery lying near the bag in the shed. The knife was also kept inside the shed. Mr. Park had bought a chest of drawers at a garage sale, and he found the knife inside one of the drawers.
Several witnesses testified for the defense. Everado Nava, defendant's father, testified that defendant had always lived with him. On that November 2008 morning, when he awoke, he saw the bicycle inside defendant's room. He told defendant to return the bicycle to its owner, and defendant replied he was going to go for a ride. Mr. Nava did not see defendant leave the house, and defendant did not return home that day. Hermelinda Cabral Hurtado, defendant's mother, saw four of defendant's friends arrive at her home that morning. They brought a bicycle to her son and left it for him. He put it in his bedroom. Mrs. Hurtado asked her son who were those friends and why had they left him a bicycle, but he only answered they were school friends and left the bicycle for a while. She told her husband about it, and he spoke with defendant, after which defendant left and did not return. Monica Ayala had spent the previous night at the Navas' home, and she saw the bicycle in defendant's bedroom though she did not see anyone bring it to the house. She heard Mr. Nava ask defendant why there was a bicycle in the house. She did not see defendant leave, but later she saw that defendant and the bicycle were no longer in the house.
Defendant, who was 19 years old, testified two friends visited him at home that morning and left the bicycle for him to ride. His mother questioned him about whose bicycle it was, and his father told him to return it to its owner. Defendant left on the bicycle to go to the park for some fresh air. On his way home, he noticed an open gate and got off the bicycle to close the gate. Mrs. Park walked toward him speaking loudly in a language he did not understand, reached out and grabbed him by his T-shirt. Defendant denied going into Mrs. Park's backyard or her shed, and he denied taking a bicycle, tool bag or knife from their house. He denied kicking Mrs. Park. As Mrs. Park was pushing him, defendant kept telling Mrs. Park to let him go, and that he didn't do anything wrong. He was not holding a tool bag, and he did not tell Mrs. Park he had a knife nor did he touch it, though he admitted he did have a knife hanging from his belt. He had found the knife on the ground near his home two days earlier, and he picked it up that morning. Other people came out of the house and grabbed him, including a guy with a shovel, and they all told him to get down. He was pushed to the ground and hit on the back and the head. When the police searched him, they took off his belt and found the knife in the sheath. He had tucked the knife inside his pants where it could not be seen.
1. The Claimed Instructional Error
"'It is well settled that the trial court is obligated to instruct on necessarily included offenses . . . when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.'" (People v. Ledesma (2006) 39 Cal.4th 641, 715.) "The determination whether sufficient evidence supports the instruction must be made without reference to the credibility of that evidence." (People v. Marshall (1996) 13 Cal.4th 799, 847.)
Attempted theft is a lesser included offense of attempted robbery. (People v. Ledesma, supra, 39 Cal.4th at p. 715.) Thus, if the evidence raised a question whether defendant took property by force or fear, and also evidence that would justify a conviction of attempted theft, then the trial court should have instructed the jury on that lesser crime. However, we conclude there was no substantial evidence to support a conviction of attempted theft and no error in the trial court's refusal to instruct on the lesser offense.
We agree with the reasoning of the trial court when it explained to counsel outside the presence of the jury why no reasonable jury could find substantial evidence of an attempted theft. First, there was substantial evidence that the bicycle, tool bag, and knife belonged to the Parks; defendant told Mrs. Park the property was his; he wanted to take it; and he used force to try to keep it. If the jury did not believe the prosecution witnesses, they could have reasonably found that when Mrs. Park confronted defendant at the gate, he simply wanted to get away and had no intent to keep any property belonging to the Parks, in which event, the jury would have to acquit defendant. The defense testimony, if believed, showed the bicycle belonged to defendant's friends, he found the knife in the street near his parents' house, he never touched a tool bag, and he only meant to close the Parks' gate; in other words, he committed no crime.
But there was no evidence on which a jury could reasonably find defendant committed attempted theft by trying to take the Parks' property without using force or fear. Neither the prosecution witnesses nor the defense witnesses offered testimony that defendant tried to take property from the Park family but without any use of force or fear. No reasonable jury could believe the prosecution witnesses' testimony that defendant tried to take a bicycle, tool bag and knife belonging to the Parks but disbelieve all of the testimony that defendant told Mrs. Park the tool bag was his when she told him to put it down, then kicked her, tried to withdraw the knife, and struggled to stay astride the bicycle as Mrs. Park and her daughter pinned him against the hedges.
Defendant argues at length about the trial court's statement (made during the course of explaining the reasons for denying the defense motion for a judgment of acquittal pursuant to Penal Code section 1118) that the court would give an instruction on a lesser included offense if the prosecution and defense agreed on such an instruction, even though the trial court found the law did not support the giving of an instruction on any lesser included offense. The trial court spent considerable time, on and off the record, going over the instructions with counsel and told counsel if they agreed to a lesser included offense instruction, they would have to submit the requested instruction by 8:30 a.m. on the day set for instructing the jury and argument. Counsel did not do so, due to the press of other business, and the trial court was not willing to take more time, while the jury waited, to prepare a lesser included offense instruction it found was not warranted by law. Defendant's trial counsel zealously argued that the court's refusal to give the instruction could cause defendant to suffer "an extra five years if he gets convicted of this charge just because his attorney is a public defender and had to be in another courtroom." We agree with the trial court that this argument is incorrect as a matter of law. Defendant did not suffer a nine-year prison sentence because of anything his counsel did or did not do. His sentence was the consequence of his attempt to rob the Park family.
Any claimed error in the trial court's refusal to instruct on attempted theft was harmless under People v. Watson (1956) 46 Cal.2d 818. (See People v. Breverman (1998) 19 Cal.4th 142, 165-166.) Defendant's version of what happened was simply not credible, from start to finish: that the bicycle belonged to his friends, not the Parks; that he happened to pick up and fasten to his belt that morning a knife he first saw on the street two days earlier; that he merely intended to close the Parks' gate; that police recovered the knife in its sheath hanging from his belt (contrary to the testimony of all witnesses, including Officer Rodriquez); that he never touched any tool bag (contrary to the testimony the tool bag on the driveway next to the bicycle was last seen inside the shed with only one tool inside); and so on. Given the substantial evidence that defendant used force, it is not reasonably probable the jury would have found defendant guilty of attempted theft instead of attempted robbery if they had been instructed on that lesser offense. 2. The Challenged Marsden Motion
The trial judge did not hear either of defendant's two Marsden motions, the first of which was made on the day of the preliminary hearing, and the second of which was made at a trial readiness hearing held two months after the preliminary hearing and more than five months before the case actually went to trial. Before the second Marsden motion, defense counsel obtained a psychological evaluation of defendant by a doctor who concluded he was competent to stand trial and did not qualify for an insanity defense. After the doctor evaluated defendant, however, defendant suffered head injuries while in county jail. When defendant made his second Marsden motion, the court held a confidential hearing, allowing defendant to explain his concerns and desire to substitute his appointed counsel. The court denied the motion. Immediately after the second Marsden hearing, defense counsel declared a doubt concerning defendant's mental competence to stand trial and requested the appointment of a neuropsychologist to evaluate defendant's ability to understand the proceedings and assist counsel after his new head injuries. The trial court made the requested appointment to evaluate defendant's competence to stand trial and suspended proceedings. Almost four months later, the court received the second report at a hearing held pursuant to Penal Code section 1368 and found defendant competent to stand trial.
Defendant raises no claim on appeal challenging the denial of his first Marsden motion or in any way related to the Penal Code section 1368 proceedings. His only claim on appeal relates to the second Marsden motion. Defendant contends at the second Marsden hearing, the trial court did not inquire adequately about his complaints concerning his appointed counsel and erred in denying his Marsden motion. We mention the proceedings that took place before and after the second Marsden motion only to give context to our discussion below.
Immediately after the trial court called the case for the trial readiness conference, defense counsel advised the court that defendant wanted to have a Marsden hearing, and the court cleared the courtroom to conduct the hearing. The court asked defendant to describe the problem with his lawyer, and defendant answered as follows:
"Well, the last time that I spoke to her, she wasn't -- she wasn't letting me ask her a question. She kept -- she would cut me off, and she would change the stories. She would change the story, and she didn't answer my questions. And they -- the other reason, she's cussed at me already once. [¶] And I -- she -- she's -- keeps trying to have me sign the deal, and there's another -- another reason 'cause . . . I wasn't taking any pills. They had told me -- they told me to -- they ordered me to take -- it was during laundry exchange, and they -- they -- they were asking me to take all my draws, and I wasn't taking pills at the time. And I didn't really know what was it that they were asking me. [¶] I was just staring at the wall, and they beat me up, and I need to go to a neurologist. So -- and I'm not sure to take a deal. I'm not -- I don't want to take no deals. I want to see if I can get a different public defender assigned to my case. Maybe I can speak to her and ask her what's gonna happen and -- and have a -- see what is it that this court is going to do."
The court then asked defense counsel to respond. Defense counsel told the court she had extensive records of defendant's mental illness and that his mother and aunt had appeared in court that morning in tears, describing defendant's history of mental health hospitalizations. Defense counsel had arranged for defendant to be psychologically evaluated, but the doctor determined defendant was competent to stand trial and not qualified for an insanity defense. She acknowledged using a cuss word before the first Marsden hearing, not directed at defendant, but in the "vernacular" to describe something as "shitty," for which she had apologized to defendant a couple of times. Defendant had asked counsel to locate "an Albert from [his] Middle School" (one of the friends who came to defendant's home and left the bicycle, according to the defense testimony at trial), but counsel's investigator had been unable to obtain a yearbook to try to locate "Albert." Counsel asked defendant if he wanted to seek a trial continuance to get more time to try to locate "Albert," but defendant did not want to waive time. She told the court that defendant had a five-year prior, the prosecutor's previous offer was nine years, but that day, the prosecution offered a plea bargain of 32 months. Defense counsel assured the court she had told defendant he did not have to take the offer and she never tried to force defendant to settle his case.
After the court discussed with counsel defendant's maximum prison exposure, defendant addressed the court again. Defendant complained that when he suffered his previous prison conviction, his public defender had manipulated him into taking the deal, and after he was released from prison, he was hospitalized, and he had been released from a mental hospital just before his arrest on this offense. Defendant said when his present counsel told him to take the offer made that day, he did not want her to defend him anymore. He wanted to talk to a different public defender "to see why is it that I'm getting charged with the charges I'm getting charged with and ask her questions about my case and see if I want to take a deal or not." Defendant said he knew he was being charged with a robbery, but he did not know if his lawyer wanted to help him. The court explained to defendant that a lawyer can represent a client but sometimes cannot help that client. Finding defendant had given no reason why his counsel should be discharged, the court denied the motion. However, the court arranged for defendant to be held in lockup in court until another public defender could join him to discuss the case, the charges, and the plea offer.
We find no abuse of discretion by the court in denying defendant's second Marsden motion. A defendant does not have an absolute right to substitute appointed counsel. However, "'[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.' [Citation.] When the defendant seeks to remove appointed counsel 'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel's inadequacy.' [Citation.] The trial court's ruling is reviewed for abuse of discretion." (People v. Panah (2005) 35 Cal.4th 395, 431.) No abuse of discretion will be found, unless the court's failure to grant the defendant's request to substitute counsel results in the substantial impairment of the defendant's right to effective assistance of counsel. (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)
The court allowed defendant to adequately identify the issues he believed supported his request to substitute counsel. The court explained to defendant that a defense lawyer cannot always help a client obtain a lesser charge or a better plea bargain. Although the court found no basis for discharging counsel, the court accommodated defendant's complaints by arranging for him to seek advice and counsel from another public defender. Defense counsel often must provide their clients with advice that is difficult to hear or which may result in a tactical disagreement about how best to proceed. Indeed, such frank discussions are often the hallmark of the proper discharge of one's ethical duties as a lawyer and do not ordinarily amount to irreconcilable conflicts or ineffective representation. (People v. Welch (1999) 20 Cal.4th 701, 728-729.) Nothing in the record reflects it did so here. We conclude the court acted well within its discretion in denying defendant's Marsden motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.