Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County Nos. GA070981, GA072098 of Los Angeles, Suzette Clover, Judge.
William Hassler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury found defendant and appellant Nam Ba Nguyen (defendant) guilty on seven felony counts arising from three separate incidents. On appeal, he challenges the sufficiency of the evidence in support of his two assault convictions, the adequacy of the reasonable doubt jury instruction, CALCRIM No. 220, and the trial court’s denial of his motion to change plea after commencement of trial.
We hold that there was sufficient evidence to support the two assault convictions, defendant forfeited his challenge to CALCRIM No. 220 by failing to request in the trial court clarification or modification of that instruction, and the trial court did not commit prejudicial error in denying defendant’s motion to change his plea. We therefore affirm the judgment.
Because defendant challenges the sufficiency of the evidence only as to his convictions on the charges of assault with a deadly weapon and assault with a deadly weapon on a peace officer, this section is limited to the facts relating to those convictions.
On January 16, 2008, City of Alhambra Police Sergeant Gabriel Ponce was working as patrol sergeant. Sometime after midnight, Sergeant Ponce responded to the scene of a commercial burglary at 810 East Valley Boulevard in Alhambra. Sergeant Ponce, who was in full uniform, observed several other officers at the scene. He also observed that a plate glass window of a building at the location had been “broken out” and saw muddy shoeprints on the concrete walkway on the side of the building.
As patrol sergeant, Sergeant Ponce supervised the eight or nine patrol officers on duty that night.
Following the discovery of the shoeprints, Sergeant Ponce was notified by a police helicopter overhead that there was a dark-colored vehicle “emanating a heat source” north of the Sergeant’s location. The officers in the helicopter directed Sergeant Ponce to a residential parking lot near the scene of the crime. Sergeant Ponce parked his marked patrol car behind and to the left of a dark-colored Toyota “4Runner” and illuminated it with the patrol car’s spotlight. Sergeant Ponce, the first officer to arrive, observed someone lying down in the back seat of the 4Runner “with his head on the back of the seat.” As he approached the 4Runner on foot, Sergeant Ponce illuminated it with his flashlight, identified himself as a police officer, and gave commands to the person inside to put his hands up. With his gun drawn and pointed at the 4Runner, Sergeant Ponce repeated the commands “five to ten [times], if not more.”
As Sergeant Ponce was giving the commands in a “yell voice, ” he saw the person in the car move and open his eyes. After requesting assistance from additional units, Sergeant Ponce noticed that Officer Stone had arrived in a marked patrol car and had taken up a position at Sergeant Ponce’s side. Both officers continued to give commands to the person in the 4Runner, whom Sergeant Ponce identified at trial as defendant.
Officer Stone testified and corroborated Sergeant Ponce’s testimony describing the facts relevant to the assault charges.
While the officers continued giving commands, defendant suddenly jumped from the backseat of the 4Runner into the driver’s seat. Another officer yelled that defendant was reaching into this pockets and, as Sergeant Ponce approached the driver’s window of the 4Runner, he saw defendant with keys in his right hand moving them toward the ignition. Sergeant Ponce broke the driver’s window with his flashlight and heard the engine “turn over.” He then commanded defendant to “[g]et out of the car” and “show [his] hands, ” but defendant ignored the commands saying, “I didn’t do it.”
Sergeant Ponce unlocked the 4Runner, opened the driver’s door, and gave defendant another command to get out of the car. Standing between the door and the car, “within the swing portion of the door, ” Sergeant Ponce prepared to pull defendant from the 4Runner. But when Sergeant Ponce heard the 4Runner’s engine “revving, ” he “got out of the way, ” moving toward the back of the 4Runner and then around the car parked next to it. As Sergeant Ponce moved away, he saw the 4Runner backing up rapidly, felt the sensation of “displaced air, ” and “could tell there was something moving by [him] at that point.”
The 4Runner came to a stop, proceeded forward through the parking lot past three marked patrol cars, exited the parking lot, and headed northbound on Granada with several marked patrol cars in pursuit. After a high-speed pursuit, during which defendant ran through red lights and collided with parked cars, the 4Runner rolled over and defendant fled on foot. Officers chased defendant and detained him at gunpoint.
PROCEDURAL BACKGROUND
In an amended information, the Los Angeles County District Attorney charged defendant in Counts 1, 6 and 7 with second degree burglary in violation of Penal Code section 459-a felony; in counts 2 and 8 with petty theft with prior convictions in violation of section 666-a felony; in count 3 with assault on a peace officer in violation of section 245, subdivision (c)-a felony; in count 4 with assault with a deadly weapon in violation of section 245, subdivision (a)(1)-a felony; in count 5 with attempted firearm removal from a peace officer in violation of section 148, subdivision (d)-a felony; and in count 9 with evading an officer in violation of Vehicle Code section 2800.2, subdivision (a)-a felony. In counts 3 through 9, the District Attorney alleged the defendant committed the crimes while out of custody on bail, within the meaning of section 12022.1. As to all counts, the District Attorney alleged that defendant had served four prior prison terms, within the meaning of section 667.5, subdivision (b). Defendant pleaded not guilty and denied the special allegations.
All further statutory references are to the Penal Code, unless otherwise indicated.
Following trial, the jury found defendant guilty on counts 1 through 4, and 7 through 9. The jury acquitted defendant on counts 5 and 6. Following a bifurcated court trial on the prior conviction and bail violation allegations, the trial court found the allegations to be true.
The trial court sentenced defendant to an aggregate term of 11 years comprised of the following terms: On count 3, the trial court sentenced defendant to the upper term of five years, plus two years for the section 12022.1 allegation, plus two years for the prior prison term allegations. On count 1, the trial court sentenced defendant to one-third the middle term or eight months. On count 2, the trial court sentenced defendant to one-third the middle term or two years, which was stayed pursuant to section 654. On count 4, the trial court sentenced defendant to the upper term of four years, which was also stayed pursuant to section 654. On count 7, the trial court sentenced defendant to one-third the middle term or eight months. On count 8, the trial court sentenced defendant to one-third the midde term or two years, which was stayed pursuant to section 654. On count 9, the trial court sentenced defendant to one-third the midde term or eight months. Defendant filed a timely notice of appeal.
DISCUSSION
A. Substantial Evidence
Defendant asserts that the evidence in support of his convictions on the charges of assault with a deadly weapon and assault with a deadly weapon on a peace officer was insufficient. According to defendant, there was no evidence from which a reasonable trier of fact could have concluded that defendant had the requisite intent to commit the assault underlying both of those charges.
In People v. Williams (2001) 26 Cal.4th 779, the Supreme Court defined the general intent necessary for the commission of an assault. “[W]e hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.)
In this case, defendant does not challenge the evidence showing that he committed the requisite intentional act for assault by backing up the 4Runner in the parking lot. He argues, however, that under the circumstances of this case, the evidence was insufficient to support a finding that he had actual knowledge of facts sufficient to establish that his act, by its nature, would probably and directly result in the application of physical force against Sergeant Ponce.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [99 S.Ct. 2781, 2789-2790, 61 L.Ed.2d 560].) Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321].)” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Based on the testimony of Sergeant Ponce, we conclude that there was sufficient evidence that defendant had actual knowledge of facts sufficient to establish that his act of backing up the 4Runner would probably and directly cause injury to Sergeant Ponce. The evidence showed that, while defendant sat in the driver’s seat, Sergeant Ponce broke the driver’s window of the 4Runner with his flashlight, unlocked the driver’s door, opened it, and, while standing between the open door and the vehicle, prepared to pull defendant from the driver’s seat. At that moment, Sergeant Ponce heard the 4Runner’s engine “revving, ” causing him to move toward the rear of the vehicle. As the Sergeant was moving, defendant backed up the vehicle rapidly with the door still open. The 4Runner passed so close to Sergeant Ponce that he felt “displaced air” and was aware of the vehicle moving by him.
From that uncontradicted evidence, a reasonable trier of fact could have found that, prior to backing up the 4Runner, defendant was aware of Sergeant Ponce’s proximity to the driver’s side of the 4Runner, “within the swing portion of the door, ” and that the driver’s door was open. That same trier of fact could also have reasonably concluded that those facts were sufficient to establish that the act of backing up the 4Runner under those circumstances would probably and directly result in the door striking Sergeant Ponce. Thus, there was sufficient evidence supporting the conviction on the charges of assault with a deadly weapon and assault with a deadly weapon on a peace officer.
B. CALCRIM No. 220
Defendant contends that the jury instruction on reasonable doubt-CALCRIM No. 220-was constitutionally defective because, although it instructed the jury to consider the evidence received throughout the entire trial, it failed to inform the jurors that they should also consider the lack of evidence. Specifically, defendant argues that “[w]hile it is not strictly incorrect to instruct the jury to review all the evidence received at trial to determine proof beyond a reasonable doubt, such an instruction is incomplete and risks leaving the impression that reasonable doubt can only be found in that way. The jury should have been told that a reasonable doubt may also be based on a lack of evidence.”
The Attorney General responds that defendant forfeited his claim of instructional error by failing to object to the instruction at trial. Defendant concedes his failure to object, but argues that he may nevertheless raise the issue on appeal because it involves his “substantive rights, ” citing, inter alia, People v. Flood (1998) 18 Cal.4th 470, 482, footnote 7.
Citing section 1259, the court in People v. Flood, supra, 18 Cal.4th at page 482, footnote 7 stated, “Defendant’s failure to object to the [challenged] instruction does not preclude our review for constitutional error. (Pen. Code, § 1259 [‘The appellate court may... review any instruction given, ... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby’].)”
As defendant concedes, CALCRIM No. 220 is a correct statement of the law, albeit, according to defendant, an incomplete statement. Thus, even assuming, arguendo, that the unmodified instruction had the potential to leave the jury with a misimpression on the issue of reasonable doubt, it was incumbent upon defendant to request clarifying instructions that addressed any such potential misimpression. As the court in People v. Guerra (2006) 37 Cal.4th 1067, 1134 explained, although an appellate court may review an unobjected-to instruction that allegedly implicates a defendant’s substantial rights, a claim that an instruction, correct in law, should have been modified “is not cognizable [on appeal]... because defendant was obligated to request clarification and failed to do so.” Thus, defendant’s failure to request a clarifying instruction from the trial court precludes us from considering his claim of instructional error on appeal. Moreover, defendant’s argument has been rejected. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238.)
C. Change of Plea
1. Background
At the close of the prosecution’s case-in-chief on May 28, 2009, defendant’s counsel informed the trial court that defendant would “rest without putting on a defense” and that defendant was “requesting that [defense counsel] inform the court that [defendant] would like to enter a plea of not guilty based on insanity.” Following the trial court’s colloquy with counsel about other matters, defense counsel asked the court to hear “the motion, ” apparently referring to defendant’s motion to change his plea to not guilty by reason of insanity. When the trial court agreed to hear the motion, defense counsel informed the trial court that defendant’s motion was untimely and had no factual basis. The trial court then asked defendant if he wanted to make a motion on his own behalf and defendant responded affirmatively. As defendant began to explain his motion, he was interrupted by the prosecutor who raised a concern that there “might [be an] overlap between the Marsden motion and this motion.” In response, the trial court asked defendant whether his motion had anything to do with his attorney, and defendant responded affirmatively, prompting the court to hold another Marsden hearing.
“When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden [(1970)] 2 Cal.3d 118, ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ (People v. Smith (2003) 30 Cal.4th 581, 604 [134 Cal.Rptr.2d 1, 68 P.3d 302]; see also People v. Hart (1999) 20 Cal.4th 546, 603 [85 Cal.Rptr.2d 132, 976 P.2d 683].)” (People v. Taylor (2010) 48 Cal.4th 574, 599.) In this case, the trial court had held two prior Marsden hearings on October 9, 2008, and May 26, 2009.
During the Marsden hearing on May 28, 2009, defendant complained that information and documents about his mental condition “had never been brought to the attention of any court.” Defendant concluded by stating, “I just want to know-I just want to inform the court about those documents and those facts. That I really need the court[’s] help. I do not have any single relative living here in America. I’m all by myself. I was in an orphanage that was called Boys Town. In that location, they did give me medication. And I met with therapists every week when I was 18, I became homeless, and I had no relatives. [¶] I asked my attorney to help me get the files from the mental institutions and the hospitals. [¶] I was on the street, I got shot. Those things and those facts and so many things that happened that made my mental condition. I just want to inform the court about that.”
The trial court responded by clarifying that defendant was raising an issue about his mental competence at the time of the charged crimes, as opposed to his competence to stand trial, and told defendant that “an insanity defense has legal standards that I suspect are not met in your case. And if those legal standards are not met, then there is no insanity defense. [¶] I suspect, but I’m going to inquire, that your attorney, having reviewed all of this evidence, has concluded that as a matter of law, there isn’t an insanity defense. And bringing the doctor in to testify about your past problems, as you indicated them here, will serve not to address an insanity defense, but instead will put all of these matters before the jury.... [¶] And, so that is why your attorney has concluded that. And based on what you have indicated, the court is also inclined to conclude, but does not have access to the information that your attorney has access to, that the witness is not being called to testify because he isn’t supporting-because of the facts that he is basing an opinion on don’t support an insanity defense; and that, as I said before, to bring those facts before the jury is not in your best interests. [¶] And I’m not going to deal with the timeliness issue because, substantively, I don’t believe an insanity defense will be successful and certainly would not be in your best interests to have all of that other information before the jury.”
Following a colloquy with defense counsel about prior plea negotiations, the trial court asked defendant if he was seeking leave to plead not guilty by reason of insanity, and defendant answered “No.” In response to the trial court’s inquiry about the type of relief defendant was seeking, defendant explained, “My idea today is that he should have mentioned that a long time ago, not just bring it to the attention of the court today. I, myself-I know it is not timely as well. I, myself, know it because it is too late.”
At that point, the trial court advised defendant as follows: “I told you I wasn’t considering the timeliness issue. That is not what we’re talking about. [¶] With respect to bringing it to the attention of the court and the prosecutors, [defense counsel] just finished detailing how he did do that. Whether it is today, whether it is back then, whether it is tomorrow, an insanity defense is not possible in this case. [¶] And [defense counsel] is not going to call a witness who is going to, by virtue of the fact that witness is testifying, have to discuss everything about which or upon which his opinion is based-his or her-which will be all of this mental history that is not in your best interests to come before the jury and does not substantiate an insanity defense. [¶] So, ... there is no basis for that. To the extent that you’re seeking to plead insanity either now or retroactively, there is no basis for that. The motion is denied.” (Italics added.)
The next day, at the beginning of jury deliberations, the trial court again addressed the change of plea issue: “There was discussion yesterday with respect to a possible motion for a change of plea or to enter a different plea in this case. I want to make it clear on the record that such a motion actually was not made. There was further discussion of the Marsden issue. Had such a motion been made, it would have been untimely and denied on that basis. It would have been supported by absolutely no evidence, as became clear in the discussion between the court and [defendant]. I wanted to clear that up. [¶] I need to clarify something with [defendant] with respect to the Marsden motion.”
The trial court then held another in camera Marsden hearing during which the court further clarified the issue: “We have had several discussions with respect to the requests made. In the course of the discussion yesterday of mental history and issues to that effect, I understand that you weren’t making a motion to change your plea to a not guilty by reason of insanity, but I also want to make sure that I tell you, as I know [defense counsel] has told you, that the effect of such a plea would be in the event that not guilty by reason of insanity was found, would be incarceration or detention in a mental facility. I want to make sure that you understand that, all right. And you know that.”
In response, defendant seemed to agree with the trial court that he had not made a change of plea motion the day before. But he insisted that he had wanted to make such a motion “a long time ago, not yesterday.”
2. Contentions
Defendant contends that the trial court committed reversible error when it denied his motion to change his plea. According to defendant, a motion to change a plea at that stage of the proceeding required a determination of whether there was good cause to allow the plea and, under People v. Lutman (1980) 104 Cal.App.3d 64 (Lutman), the good cause determination was limited to the issue of whether defendant demonstrated due diligence in bringing the motion. Defendant argues that, in ruling on the motion, the trial court ignored the issue of defendant’s due diligence and instead improperly focused on the evidence in support of defendant’s proposed insanity defense. Defendant maintains that, by focusing on the merits of the defense, the trial court violated the standard for determining good cause articulated by the Court of Appeal in Lutman.
The Attorney General claims that defendant did not make a motion to change his plea, but rather made a Marsden motion based on his trial counsel’s failure to bring to the attention of the trial court information concerning defendant’s mental history. The Attorney General further contends that even if defendant made a motion to change his plea, the trial court did not commit reversible error in denying it because any such motion would have been untimely and baseless.
We note at the outset the parties’ disagreement over whether the record supports defendant’s contention that he made a motion to change his plea and that the trial court denied it. Although the record is unclear on this issue, we will assume for purposes of this appeal that defendant moved to change his plea, as he asserts, and that the trial court denied that motion. Therefore, we will review whether that denial constituted legal error, applying an abuse of discretion standard of review. (People v. Montiel (1985) 39 Cal.3d 910, 923 (Montiel).)
3. Legal Standards
In Montiel, supra, 39 Cal.3d 910, the Supreme Court addressed the legal standard by which motions to change a plea after commencement of trial are determined. “Section 1016 provides in relevant part that ‘A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged; provided, that the court may for good cause shown allow a change of plea at any time before the commencement of the trial.’ As the court observed in People v. Boyd (1971) 16 Cal.App.3d 901, 908 [94 Cal.Rptr. 575], changes of plea tendered after commencement of trial have long been given consideration to determine whether ‘good cause’ exists to permit entry of the new plea. (See, e.g., People v. Egan (1933) 218 Cal. 408 [23 P.2d 755]; In re Kubler (1975) 53 Cal.App.3d 799, 806 [126 Cal.Rptr. 25].)” (Montiel, supra, 39 Cal.3d at p. 921.)
The court in Montiel, supra, 39 Cal.3d 910 then acknowledged that the standard for determining good cause to change a plea after commencement of trial was subject to conflicting opinions in the Courts of Appeal. “At the time of trial the established standard for reviewing requests to change pleas once trial had begun included an inquiry into whether ‘there were reasonable grounds to believe that at the time of the commission of the crime [the defendant] was legally insane....’ (People v. Morgan (1935) 9 Cal.App.2d 612, 615 [50 P.2d 1061].) Defendant asserts that the more restrictive standard enunciated in People v. Lutman, supra, 104 Cal.App.3d 64 [163 Cal.Rptr. 399], precluding inquiry into the merits of the proposed defense, should be retroactively applied.” (Montiel, supra, 39 Cal.3d at p. 921.) After noting the more restrictive good cause standard in Lutman, however, the court in Montiel further noted that “[o]n the day after Lutman was decided, another Court of Appeal district reapplied the historical test, considering both diligence in bringing the motion and reiterating the requirement that the defendant make some showing on the merits. (People v. Herrera (1980) 104 Cal.App.3d 167, 173 [163 Cal.Rptr. 453] [(Herrera)].)” (Montiel, supra, 39 Cal.3d at p. 921, fn. 1.) Notwithstanding the apparent conflict in the Courts of Appeal concerning the good cause standard for changes in plea after commencement of trial, the court in Montiel, supra, 39 Cal.3d 910 was able to determine the appeal before it without resolving that conflict because, in that case, the defendant had failed to show good cause under either the Lutman or Herrera standard. (Id. at p. 923.)
For similar reasons, we need not resolve whether the standard in Lutman, supra, 104 Cal.App.3d 64or Herrera, supra, 104 Cal.App.3d 167 controlled the determination of defendant’s motion to change plea because, under either standard, defendant failed to show good cause. Contrary to defendant’s assertion, the trial court did address the timeliness issue the day after defendant originally raised the change of plea issue with the trial court. After stating its view that defendant had made a motion under Marsden, and not a motion to change his plea, the trial court stated, “Had such a motion [to change plea] been made, it would have been untimely and denied on that basis.” It thus appears the trial court carefully considered the timeliness issue in the context of its ruling that no change of plea motion had been made, and expressly found that a motion to change plea at that juncture of the proceedings would have been untimely. Therefore, the trial court did not, as defendant contends, commit legal error by ignoring the more restrictive good cause standard in Lutman, and did not abuse its discretion in refusing to entertain a motion for change of plea at that stage of the proceedings.
Moreover, even assuming arguendo, as defendant suggests, that the trial court was bound by its initial ruling on defendant’s motion to change plea, as well as its initial merits-based rationale for that ruling, any asserted failure to address the timeliness issue in connection with the initial ruling was harmless. Based on the record before us, there was no showing of due diligence excusing defendant’s delay in making his motion, much less an adequate showing. Although defendant complained to the trial court that he had been asking his attorney to raise his mental condition with the trial court during the 18-month period prior to trial (presumably in connection with the merits of his defense), he stopped short of asserting that he had made repeated but unsuccessful demands upon his attorney to move to change his plea. And, although defendant informed the trial court that he wanted to change his plea “a long time ago, ” he provided no detail as to whether he made that fact known to his trial counsel and, if so, when. Given the record on this issue, there is no merit to defendant’s assertion that he satisfied the due diligence requirement in Lutman, supra, 104 Cal.App.3d 64. Therefore, even assuming, arguendo, the trial court failed to address the due diligence requirement, and instead denied the motion because the insanity defense lacked merit, defendant suffered no prejudice from that denial because he failed to establish the necessary due diligence.
DISPOSITION
The judgment of conviction is affirmed.
We concur: TURNER, P. J.KRIEGLER, J.