Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF011740, Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Karl T. Terp, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendant was charged in an amended information with one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 1); two counts of felony endangerment of a child (Pen. Code, § 273a, subd. (a); counts 2 (K.G.) & 3 (M.L.)); one count of failing to register as a sex offender (Pen. Code, § 290; count 4); and one count of possession of marijuana for sale (Health & Saf. Code, § 11359; count 5). It was further alleged that defendant had one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and three prison priors (Pen. Code, § 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Count 4 was severed for purposes of trial. A jury found defendant guilty of the lesser included offenses of possessing cocaine base in count 1 (Health & Saf. Code, § 11350) and of misdemeanor endangering a child, K.G., in count 2 (Pen. Code, § 273a, subd. (b)). The jury found defendant not guilty in count 3 and guilty as charged in count 5. The trial court found the three prison prior allegations and prior strike allegation true.
In a separate trial following the trial on counts 1, 2, 3, and 5, defendant was convicted of one count of failing to register as a sex offender (§ 290), and was sentenced to 180 days in jail on that count.
It was also alleged in count 1 that defendant had two prior felony convictions for violating Health and Safety Code section 11351.5, within the meaning of Health and Safety Code section 11370.2, subdivision (a). In view of the jury’s finding that defendant was guilty of the lesser offense of possessing cocaine base in count 1, no finding was made on these allegations.
The prior strike conviction was for forcible rape, with the use of a firearm, in 1987 when defendant was 17 years old. (Former §§ 261.2, 12022.3, subd. (a).) The trial court denied defendant’s motion to strike the prior strike conviction.
Defendant was sentenced to nine years in prison, consisting of the upper term of three years on count 1, doubled to six years based on the prior strike conviction, plus one year for each of the three prison priors. Defendant received a concurrent term of 180 days on count 2 and a concurrent upper term of three years on count 5.
Defendant raises various claims of error on this appeal. He first claims that the trial court erroneously denied his Batson/Wheeler motion regarding the prosecutor’s peremptory dismissal of a single prospective juror, Ms. F., who, like defendant, was African-American. Defendant specifically argues that the trial court erroneously concluded he did not make a prima facie showing that Ms. F. was excused on the basis of race. Second, defendant claims the trial court erroneously failed to hold a Marsden hearing on February 8, 2006, during the middle of trial on counts 1, 2, 3, and 5.
Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
People v. Marsden (1970) 2 Cal.3d 118, 124 (Marsden).
Third, defendant raises three claims of error concerning the testimony of prosecution witness C. Smith. He first claims the trial court prejudicially erred in failing to instruct the jury sua sponte that Smith was an accomplice whose testimony should have been viewed with suspicion. In a related argument, he claims the trial court gave an erroneous version of CALJIC No. 2.27, which excluded the bracketed phrases requiring corroboration of an accomplice witness’s testimony. He also claims that insufficient evidence supports each of his convictions because Smith’s testimony was uncorroborated.
Fourth and finally, defendant claims the trial court’s imposition of the upper term sentences on counts 1 and 5 violated his right to a jury trial. We find each of defendant’s claims without merit, and affirm the judgment in its entirety.
II. EVIDENCE PRESENTED AT TRIAL
On May 5, 2005, at approximately 8:00 p.m., Riverside County sheriff’s deputies searched a Perris apartment pursuant to a search warrant. Since late April, deputies had been conducting a surveillance of the apartment for drug sales. Defendant was observed going in and out of the apartment while briefly meeting with people at a gate near the back of the apartment complex. Deputy Theodore Peterson testified that this type of activity is consistent with drug sales. Inside the apartment, deputies found marijuana and rock cocaine. Deputies had also observed defendant’s car parked at the apartment complex during late night and early morning hours, which led them to believe he lived there.
Defendant’s girlfriend, C. Smith, testified that defendant lived in the apartment with her, her two children, K.G. (then age two) and M.L. (then age nine), and her nephew, J.D. (then age 17). Smith and J.D. testified that defendant had been living in the apartment for approximately two months prior to the search. Defendant slept in the master bedroom with Smith and K.G. He occasionally cooked for the family and watched the younger children when Smith was out of the apartment. Deputies found men’s and women’s clothing in the master bedroom and closet. J.D. said the clothing did not belong to him, but belonged to defendant.
When the deputies served the search warrant and demanded entry, defendant came to the front door of the apartment but refused to open the door. He said he did not live there and asked what the officers were doing there. To gain entry, the deputies broke in through a locked metal security door. Once inside, they handcuffed defendant. Smith was taking a shower at the time. After being allowed to dress, Smith was moved into the living room. Smith’s two children were inside the apartment when the search was conducted. Her nephew, J.D., was not at home.
During the search, Deputy Petersen asked Smith whether there were any drugs in the apartment, and Smith directed him to a plate in the kitchen which had shards of rock cocaine on it. Smith testified she did not know what the substance on the plate was and that it was not hers, but she had seen it earlier during the day. In addition to the shards of rock cocaine on the plate, deputies found a baggy containing six pieces of rock cocaine on a shelf in the master bedroom closet under some clothing. Deputy Petersen estimated that the six pieces of rock cocaine were worth $120.
Deputies also found marijuana in three places in the apartment. On top of the refrigerator, deputies found a large chunk of “brick” marijuana. The brick marijuana was in clumps and buds, and was consistent with a type of marijuana from Mexico known as “brick weed.” In the kitchen on a water filter box, deputies found an envelope with marijuana on it and a cigar. This marijuana was arranged as though it was going to be stuffed into the cigar. A cigar stuffed with marijuana is known as a “blunt,” and a cigar stuffed with marijuana and rock cocaine is known as a “cocoa puff.” In a locked nightstand in the master bedroom, deputies found a shoe box containing several portions of marijuana individually wrapped in smaller baggies, and a larger quantity of marijuana. The shoe box also contained several unused baggies consistent with those used for packaging and selling marijuana. The estimated value of all of the marijuana found in the apartment was $250.
Smith told the deputies that defendant had the marijuana that was found on top of the refrigerator. She also admitted she smoked marijuana with defendant, but not in the presence of the children. She said she never saw defendant use any cocaine, or sell any cocaine or marijuana. J.D. testified that he had never seen any drugs in the apartment, and had never seen defendant use or sell any drugs.
All of the drugs found in the apartment were tested at the laboratory. The net amount of cocaine base found was 1.9 grams. The net amount of marijuana was 43.48 grams. During the search, deputies did not find any pipes or other paraphernalia that could be used to ingest the marijuana or rock cocaine, and neither defendant nor Smith showed any signs of being under the influence of rock cocaine. Also during the search, defendant was telling Smith’s older child, M.L., to help out with the younger child, K.G., who was running around and putting things into his mouth.
Defendant was upset at the time of the search. When Deputy Peterson explained what he and the other deputies were doing there, defendant said he was only there to visit and do his laundry, and that he lived in a residence on Blackstone. An envelope found in the master bedroom was addressed to defendant at an address on Blackstone in Riverside. However, a relative of defendant’s who lived at the Blackstone address testified that defendant did not live there, had never lived there, and had never spent the night there. The relative recalled defendant coming by to pick up the envelope and staying long enough for her to “cuss him out about the mail.”
The deputies were in the apartment for approximately 90 minutes. During that time, defendant’s cell phone rang between 10 and 12 times. Smith’s cell phone rang only once during the search, and the call was from a relative who was concerned about what was happening at the apartment.
Deputy Peterson testified that, in his opinion, drugs were being sold out of the apartment. He based his opinion on defendant’s frequent brief encounters with individuals during the officers’ surveillance of the apartment, the fact that defendant’s cell phone rang constantly during the search, the lack of paraphernalia to ingest the drugs, the amounts of drugs and packing material found, and the fact that defendant had no paycheck stubs or anything to show income from working.
Deputy Petersen also testified that selling drugs out of the apartment presented dangers to the children. Violent crime was associated with people who sold drugs, and the children and spouses of drug dealers were typically targeted because of their vulnerability. The children were also subjected to harm simply by being around the drugs. The drugs were easily accessible to the children and there was a potential for accidental ingestion. The youngest child, K.G., was observed putting things into his mouth.
The jury also heard that, on September 1, 2001, defendant was standing next to his car when he was stopped by a deputy sheriff on patrol and searched. Defendant had a cell phone, a pager, rolling papers, and $226 on his person. In the trunk of defendant’s car, the deputy found 11 one-inch baggies containing 1.5 grams of marijuana in each baggie, and four other baggies containing a total of approximately 22.5 grams of marijuana. Defendant was arrested, taken to jail, and strip searched at the jail. Officers found two small baggies of marijuana in defendant’s shorts. A second baggie in defendant’s buttocks contained approximately 20 individually wrapped pieces of rock cocaine.
Defendant did not testify, and did not present any other affirmative evidence.
III. DISCUSSION
A. Defendant’s Batson/Wheeler Claim is Without Merit
Defendant, who is African-American, claims the prosecutor improperly used a peremptory challenge to excuse Ms. F., an African-American prospective juror, on the basis of her race. Specifically, defendant claims the trial court erroneously found he did not state a prima facie case of racial discrimination.
We reject this claim. Defendant did not make a prima facie showing that Ms. F. was excused on the basis of race. And even if he did, the record clearly shows that Ms. F. was excused on legitimate, race-neutral grounds.
1. Overview of Applicable Law
The applicable law is well settled. “A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. [Citations.]
“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009, quoting Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 162 L.Ed. 2d 129] (Johnson).)
On appeal, we review the trial court’s ruling on purposeful racial discrimination for substantial evidence. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009.) It is presumed that the parties used peremptory challenges in a constitutional manner. (People v. Roldan (2005) 35 Cal.4th 646, 701.) Thus, “the ultimate burden of persuasion regarding racial motivation [or group bias] rests with, and never shifts from, the opponent of the strike.” (Purkett v. Elem (1995) 514 U.S. 765, 768 [115 S.Ct. 1769, 131 L.Ed.2d 834].) However, “[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
2. Relevant Background
(a) Voir Dire of Ms. F.
Ms. F. was one of the group of 12 prospective jurors who were first seated in the jury box. On the jury questionnaire, she stated she was a self-employed gospel singer, her husband was a pastor, and her two adult children worked in the church.
Early during voir dire, the court asked the prospective jurors whether any of them had a close friend or family member who had been treated for a drug problem. In response, Ms. F. volunteered that her brother had almost been killed by a drug dealer. In response to further questions, she explained that her brother suffered brain damage and the loss of one eye from a beating, and the person who beat him was never caught. When the court asked “how” that experience affected her ability to be fair and impartial when defendant was alleged to be a drug dealer, Ms. F. responded, “I don’t have any opinion.”
When the court later asked each of the prospective jurors whether they believed they could be fair and impartial, Ms. F. responded, “[A]s far as can I be fair and impartial, I’ve been pondering that in my heart, if I could or not, based on the subject matter and pondering over the questions that were asked earlier, I can only say that I hope I can.” Defense counsel later asked Ms. F. how she knew of the circumstances surrounding the beating of her brother. She explained that her brother was in a “drug-infested area” “where he didn’t have any business being, trying to make a purchase himself,” and her brother told her what had happened to him.
When the court asked the prospective jurors whether any of them had relatives in law enforcement, Ms. F. said her mother-in-law had a police badge and her daughter-in-law was an officer in Ohio. She said that would not affect her ability to be fair and impartial. Later, defense counsel asked Ms. F. whether she would “tend” to give “extra points” to law enforcement officers just because they were in law enforcement.
At that point, Ms. F. volunteered that she had a “bad experience” with police in a matter involving her son. Her son had witnessed a murder, and the police promised him that he and his family would be safe. After he identified the suspect, however, Ms. F. said the police “just left us like we got what we wanted out of you, and now you’re on your own.” Defense counsel asked Ms. F. whether that experience made her distrustful of law enforcement and would affect her ability to fairly and impartially judge the credibility of law enforcement witnesses.
In response, Ms. F. said, “I believe I’m fair. I believe that I could listen to the case. But I just needed to—you asked the question, so I was trying to answer honestly. And then, after I did, and I went out to ponder over it, to see if I could really do what you’re asking of me, and my final answer was I hope I can.” Defense counsel said, “What the judge wants to hear, what we’d all like to hear, I suppose, is you think in your heart you could put those things aside and simply be fair and impartial to both sides.” In response to that, Ms. F. said, “Yeah. I don’t sound sure to you.”
Later, the prosecutor asked Ms. F. whether her religious background would affect her ability to be fair and impartial. He specifically asked her whether she could set aside any tendency she had to be merciful and extend sympathy. Ms. F. responded, “I know I can do that.”
The prosecutor then asked Ms. F. whether the incident involving her son and the police triggered her to say she was unsure she could be fair and impartial. Ms. F. responded it was “more my brother’s incident than my son’s incident that struck a nerve.” The prosecutor then asked Ms. F. whether, after having answered questions from both sides, her “feeling” was still she “hoped” she could be impartial. Ms. F. responded, “My feeling still is I hope I can.” She said she was “not saying that to get out” of jury service.
(b) The Defense Motion
After the court and counsel completed voir dire of the initial panel and before either side exercised any peremptory challenges, the court called counsel into chambers to address challenges for cause. Neither side made any challenges for cause.
The court then asked the prosecutor whether he was going to use any of his peremptory challenges to excuse either Ms. F. or the only other prospective juror who was African-American and who was later seated as Juror No. 3. The prosecutor said he was not going to excuse Juror No. 3, but he was uncertain whether he would excuse Ms. F.
The prosecutor explained he was concerned about Ms. F.’s negative experience with law enforcement based on the incident involving her son. In addition, he said she was “real vague” in her answers. The court told the prosecutor, “This is the time to decide,” because they were in chambers. The prosecutor then said he would probably challenge Ms. F., “just based on the whole church background, the negative experience with law enforcement, the hope, and being unable to say[] she could be fair and impartial.”
Defense counsel said he would “just state for the record,” “that it’s not abundantly clear that Mr. Powell, the defendant, is African-American, [B]lack. [¶] [Ms. F.] is obviously [B]lack. She’s one of two African-Americans that are currently on the 17 in the box.” The court observed that Juror No. 3 was the only other African-American on the panel.
The court said it did not see any other African-Americans in the venire; however, there was at least one more African-American in the venire because an African-American served as an alternate.
Defense counsel said it was important for defendant to have “some diversity, individuals of his own race on the panel,” and on that basis made a Batson/Wheeler motion regarding the prosecutor’s excusal of Ms. F. In response, the court told defense counsel that the prosecutor just said he was not going to challenge Juror No. 3.
Defense counsel argued that the incident involving Ms. F.’s son was “far less important to her than the incident with her brother,” and the incident involving her brother was favorable to the prosecution. He maintained that the incident involving Ms. F.’s son did not “really factor in to her belief” whether she could be fair.
The court said it had to make an “initial finding” that the prosecutor was excusing Ms. F. based on her race, before the prosecutor had to explain his reasons for excusing her. The court said it was not going to ask the prosecutor to explain his reasons for excusing Ms. F. because he was not going to excuse Juror No. 3.
(c) The Petit Jury and Alternates
The prosecutor exercised a total of five peremptory challenges. He used three when choosing the petit jury and two when selecting alternates. He used his second peremptory challenge to excuse Ms. F. The petit jury included one African-American, Juror No. 3. Another African-American served as an alternate.
3. Analysis
Defendant claims the trial court erroneously concluded that he failed to make a prima facie showing that the prosecutor excused Ms. F. on the basis of her race. He argues that, because both he and Ms. F. were African-American, this was “sufficient to draw an inference that discrimination served as a basis for this peremptory challenge.” We disagree.
A defendant makes a prima facie showing of racial discrimination “‘“by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.”’” (People v. Cornwell (2005) 37 Cal.4th 50, 66, quoting Johnson, supra, 545 U.S. at p. 168.) In other words, “‘a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’” (Johnson, supra, at p. 170; People v. Gray (2005) 37 Cal.4th 168, 186.) Thus, on Batson’s first step, the trial court must determine whether “the totality of the relevant facts” gives rise to a “reasonable inference” of bias. (Johnson, supra, at p. 168; People v. Gray, supra, at pp. 186-187.)
When, as here, the trial court denies a Batson/Wheeler motion on the ground the opponent of the strike failed to make a prima facie showing of bias, the reviewing court must “resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.” (People v. Cornwell, supra, 37 Cal.4th at p. 73, citing Johnson, supra, 545 U.S. at p. 167.) In resolving this legal question, the reviewing court must consider the entire record of voir dire. (People v. Gray, supra, 37 Cal.4th at pp. 186-187.)
The trial court’s ruling is affirmed “if the record ‘suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1172-1173.) And, “[i]f the reviewing court concludes the trial court properly determined no prima facie case was made, it need not review the adequacy of the prosecutor’s justifications, if any, for the peremptory challenges.” (Id. at p. 1173.) If, however, the prosecutor offers reasons for his peremptory challenges, the reviewing court may proceed to the second and third steps of the Batson/Wheeler analysis. (People v. Zambrano (2007) 41 Cal.4th 1082, 1106.)
Here, the trial court began the Batson/Wheeler inquiry by considering the second step before it considered the first. While the court and counsel were in chambers to discuss challenges for cause, and before the defense made its Batson/Wheeler motion, the court asked the prosecutor whether he intended to excuse Ms. F. or Juror No. 3, and, if so, to explain his reasons for doing so. The prosecutor said he had no intention of excusing Juror No. 3, and was undecided whether he would excuse Ms. F. Then, when pressed for an answer, the prosecutor said he would excuse Ms. F. and explained his reasons for doing so. Without determining whether the prosecutor’s reasons were genuine and race-neutral, the court denied the motion on the ground the defense had not made a prima facie showing that Ms. F. was being excused on the basis of her race.
Nevertheless, the trial court correctly concluded that the defense did not present a prima facie showing that Ms. F. was being excused on the basis of her race. The entire record of voir dire simply does not support a reasonable inference that Ms. F. was excused on the basis of her race. When the prosecutor excused Ms. F., he knew that Juror No. 3, also an African-American, was seated in the jury box. Yet the prosecutor did not challenge Juror No. 3. Nor did he challenge the African-American who served as an alternate juror, and who was apparently the only other African-American in the venire.
Defendant asserts he made a prima facie showing simply because both he and Ms. F. were African-American. He is wrong. It is unreasonable to infer that Ms. F. may have been excused on the basis of her race when the prosecutor declined to challenge either Juror No. 3 or the alternate juror, both of whom were African-American. (See, e.g., People v. Roldan, supra, 35 Cal.4th at p. 702 [showing that two of eight peremptory challenges were used against African-Americans insufficient to constitute prima facie case that excusals were based on race].)
Moreover, the record demonstrates that the prosecutor’s race-neutral reasons for excusing Ms. F. were genuine. Ms. F. consistently said she could only “hope” she could be fair and impartial. She strongly indicated that she might not be able to be fair and impartial in view of the incident involving her brother being beaten by a drug dealer and the incident involving her son’s negative treatment by the police. And despite their best efforts, both defense counsel and the prosecutor were unable to rehabilitate Ms. F. or get her to say she could be fair and impartial notwithstanding either incident. Indeed, although Ms. F. said the incident involving her brother “struck a nerve” and was of greater concern to her than the incident involving her son, she never said that either incident would not affect her ability to be fair and impartial. In contrast to Ms. F., Juror No. 3 did not equivocate on his ability to be fair and impartial, despite a negative experience with an Oceanside police officer.
In contrast, Ms. F. was much more certain that her religious convictions would not affect her ability to be fair and impartial. But her certainty she could set aside her religious convictions only served to emphasize that she might be unable to set aside the incidents involving her brother and her son, and judge the case based solely on the facts and the law.
Thus here, the trial court properly found that the defense did not meet its burden of demonstrating a reasonable inference that Ms. F. was being excused on the basis of race—the first step of the Batson inquiry. On this ground, the motion was properly denied. Furthermore, the record amply demonstrates that Ms. F. was not, in fact, excused on the basis of race, but on genuine, race-neutral grounds.
B. The Trial Court Did in Fact Conduct a Marsden Hearing on February 8, 2006, and Properly Denied the Motion
Defendant next claims the trial court committed structural error in failing to hold a Marsden hearing on the third day of trial, February 8, 2006, and thereby deprived him of his right to state his reasons for wanting substitute counsel. We reject this claim because it is based on a misreading of the record. Contrary to defendant’s contention, the trial court conducted a Marsden hearing on February 8, 2006, in chambers and outside the presence of the prosecutor. And at that hearing, defendant had ample opportunity to explain, and did explain, his reasons for wanting to substitute counsel. The motion was also properly denied.
1. Relevant Background
On February 8, 2006, the third day of trial, Deputy Petersen testified that the presence of the drugs in the apartment placed Smith’s two young children at risk. Defendant interrupted the testimony, saying, “Hey, I’m looking at 20 years. He’s lying. . . .” Despite the trial court’s admonitions, defendant refused to be quiet and kept insisting that Deputy Peterson was lying. The trial court excused the jury for the noon recess, and admonished the jury to disregard defendant’s statements about punishment.
During the recess, and in the presence of defense counsel and the prosecutor, defendant insisted he was “not being represented” and that he wanted a different attorney. Defense counsel, Brian Cosgrove, was defendant’s fourth attorney from the public defender’s office.
Several months before trial, on October 13 and 17, 2005, defendant made two successive Marsden motions to replace another deputy public defender, Attorney Coleen Lawler, who was then assigned to his case. These motions were denied. Then, on November 3, 2005, defendant told the court he was still having “difficulty” with Attorney Lawler and requested a 30-day continuance of the trial in order to hire private counsel. The court granted the continuance, and set December 15 as the last day of trial. As of January 20, 2006, defendant had not hired private counsel and Attorney Cosgrove appeared on his behalf. Trial commenced on February 6, 2006.
Defendant also explained, in open court and in the presence of the prosecutor, why he wanted new counsel. He said he was not in possession of any drugs, that Deputy Petersen did not see him selling any drugs, and he was not living at Smith’s apartment at the time of the search. On this basis, he questioned why Deputy Petersen was being allowed to testify that the drugs found in Smith’s apartment were possessed for sale and were endangering Smith’s children. He also questioned why Smith had been given immunity, why Attorney Cosgrove was not calling defendant’s employer to testify that defendant was not selling drugs, and why his parole officer was not being called to testify that defendant was not living in Smith’s apartment. He said he would like to hire private counsel.
At this point, the court held a Marsden hearing in chambers, in the presence of defendant and Attorney Cosgrove and outside the presence of the prosecutor. Thus, contrary to defendant’s argument, the court did, in fact, conduct a Marsden hearing on February 8, 2006. Indeed, the record on appeal includes a sealed transcript of the February 8 Marsden hearing. During the in-chambers Marsden hearing, defendant reiterated the points he made in open court and, in effect, insisted he wanted to run his own defense. He also questioned why evidence of his prior conviction for possessing marijuana and cocaine was being admitted against him when he was not testifying. The court explained to defendant that the evidence of the prior conviction was being admitted under Evidence Code section 1101, subdivision (b), and the court was going to allow that evidence to be admitted no matter who was representing defendant.
Based on the parties’ briefs, it appears that neither appellant’s counsel nor the People received copies of the sealed transcripts of the Marsden hearing held on February 8, 2006. This transcript was filed with this court on September 22, 2006. The clerk of this court mailed a copy of the transcript to the People on September 27, 2006, and to appellant’s counsel on October 11, 2006, long before the parties filed their respective briefs in 2007.
The court also addressed defendant’s other concerns about the evidence and the witnesses during the Marsden hearing. The court told defendant that Attorney Cosgrove was doing a good job, that he was pursuing the best trial strategy available, and that defendant’s complaints about the evidence and witnesses had nothing to do with Attorney Cosgrove’s representation of defendant. At the close of the hearing, defendant said he understood what the court was explaining to him, and the trial court denied the motion.
The following day, February 9, defendant voluntarily absented himself from trial. That morning, he again told the court he did not want Attorney Cosgrove to represent him and he continued to complain about evidence and testimony that was not being presented. In short, defendant continued to express frustration with his inability to present the defense he wanted to present.
2. Applicable Law
Under the Sixth Amendment right to effective assistance of counsel, an indigent criminal defendant is entitled to substitute another appointed attorney “‘“‘if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’”’” (People v. Welch (1999) 20 Cal.4th 701, 728.) And, when a defendant seeks to discharge his appointed counsel on grounds of inadequate representation and obtain substitute counsel, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of [his first appointed counsel’s allegedly] inadequate performance.” (Ibid.; Marsden, supra, 2 Cal.3d at pp. 123-124.)
A defendant’s request to substitute appointed counsel is commonly referred to as a Marsden motion. (See People v. Dickey (2005) 35 Cal.4th 884, 920.) The trial court may conduct a Marsden hearing at any stage of the proceedings. (People v. Smith (1993) 6 Cal.4th 684, 694-695.) No formal motion is necessary to trigger the trial court’s duty to allow the defendant to explain his reasons for wanting substitute counsel, but there must be “‘at least some clear indication by defendant that he wants a substitute attorney.’” (People v. Mendoza (2000) 24 Cal.4th 130, 157.)
A trial court’s ruling on a Marsden motion is reviewed for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 857.) In this regard, it is settled that “[a] defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.” (People v. Welch, supra, 20 Cal.4th at p. 728; People v. Cole (2004) 33 Cal.4th 1158, 1192.) “‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’” (People v. Welch, supra, at p. 729.)
Furthermore, “[t]actical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’” (People v. Welch, supra, 20 Cal.4th at pp. 728-729.) “[T]he trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (People v. Smith (2003) 30 Cal.4th 581, 606.) Nor may a defendant force the substitution of counsel by his own conduct that manufactures a conflict. (Ibid.) “If a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment . . . .” (People v. Jones (2003) 29 Cal.4th 1229, 1246.)
3. Analysis
Here, and contrary to defendant’s argument, the trial court conducted a Marsden hearing on February 8, 2006, in chambers and outside the presence of the prosecutor. The hearing was appropriately conducted in response to defendant’s expressed wish to discharge Attorney Cosgrove and obtain substitute counsel.
Furthermore, the trial court did not abuse its discretion in denying defendant’s February 8 Marsden motion. During the in-chambers hearing, defendant had ample opportunity to explain, and did explain, his reasons for wanting to discharge Attorney Cosgrove. And none of defendant’s complaints indicated that Attorney Cosgrove was providing ineffective representation, or that defendant and Attorney Cosgrove had an irreconcilable conflict which made it likely that Attorney Cosgrove would provide ineffective representation. Defendant’s February 8 Marsden motion was therefore properly denied.
C. Defendant’s Claims Regarding the Testimony of C. Smith Are Without Merit
Defendant raises three claims of error regarding the testimony of prosecution witness Smith. These are: (1) the trial court erroneously failed to instruct the jury sua sponte that Smith was an accomplice and that her testimony therefore required corroboration and should have been viewed with suspicion (former CALJIC No. 3.10 et seq.); (2) the trial court erroneously failed to modify CALJIC No. 2.27 (Sufficiency of Testimony of One Witness) sua sponte, to indicate that Smith’s testimony required corroboration; and (3) insufficient evidence supports his convictions on all counts because there was insufficient evidence to corroborate Smith’s testimony. We find each of these claims without merit.
1. The Failure to Give Accomplice Instructions Was Not Prejudicial
Defendant first claims the trial court erroneously failed to instruct the jury, sua sponte, that Smith was an accomplice to each of the crimes defendant was charged with committing, and that her testimony therefore required corroboration and should have been viewed with suspicion. At the time of trial, these principles were reflected in CALJIC Nos. 3.10 (Accomplice—Defined), 3.11 (Testimony of Accomplice Must Be Corroborated), 3.12 (Sufficiency of Evidence to Corroborate an Accomplice), 3.13 (One Accomplice May Not Corroborate Another), and 3.18 (Testimony of Accomplice to Be Viewed With Care and Caution). None of these instructions, or any other instructions concerning accomplice testimony, were given, however.
(a) Applicable Law
Section 1111 provides that the testimony of an accomplice cannot support a conviction, “unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . .” An accomplice is defined as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Ibid., italics added.) In order to be charged with the identical offense, the witness must be a principal in the crime the defendant is charged with committing. (People v. Horton (1995)11 Cal.4th 1068, 1113-1114; People v. Snyder (2003) 112 Cal.App.4th 1200, 1217.) Principals include “[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission. (§ 31.)
The trial court has a duty to instruct the jury, sua sponte, to determine whether a witness was an accomplice in the charged offense, “‘“[w]henever the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice.”’” (People v. Snyder, supra, 112 Cal.App.4th at p. 1218.) Alternatively, if the evidence establishes as a matter of law that a witness was an accomplice, the jury must be so instructed. (People v. Zapien (1993) 4 Cal.4th 929, 982.) In either event, the trial court must also instruct the jury, sua sponte, “‘(1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplice’s testimony unless it is corroborated . . . .’” (Ibid., citing People v. Gordon (1973) 10 Cal.3d 460, 466, fn. 3.)
“Nonetheless, ‘the failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record. [Citations.] The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence “may be slight and entitled to little consideration when standing alone. [Citations.]”’ [Citation.] ‘Corroborating evidence “must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.” [Citation.]’ [Citation.]” (People v. Zapien, supra, 4 Cal.4th at p. 982.) The corroborating evidence must also be independent of the accomplice’s testimony. (People v. Avila (2006) 38 Cal.4th 491, 562.)
(b) Analysis
Defendant maintains that the trial court had a duty to give accomplice instructions, sua sponte, regarding Smith’s testimony because there was substantial evidence that Smith was an accomplice to the “underlying crime[s]” of child endangerment in counts 2 and 3, and to possession of cocaine base and possession of marijuana for sale of which defendant was convicted in counts 1 and 5, respectively. Defendant further asserts that, without Smith’s testimony that defendant lived with her in her apartment, there was no evidence that he had any care or custody over K.G. to support his conviction for endangering K.G. (count 2), and no evidence that he possessed the rock cocaine or possessed the marijuana for sale that the deputies found in the apartment (counts 1 & 5).
As defendant points out, Smith testified that defendant lived with her, her two children, and her nephew, J.D., in the apartment where deputies found the rock cocaine and marijuana. In contrast, defendant told Deputy Peterson he did not live with Smith but lived with a relative in a residence on Blackstone. Based on Smith’s testimony that defendant lived with Smith and defendant’s contrary statement that he did not live with Smith, defendant argues that, without Smith’s testimony, the evidence showed he was “merely a guest” in the apartment. This argument fails because it disregards the independent evidence that corroborated Smith’s testimony and connected him to the crimes for which he was convicted in counts 1, 2, and 5.
Simple possession of cocaine base, for which defendant was convicted in count 1, requires proof of physical or constructive possession of the drugs coupled with knowledge of the presence and narcotic character of the drug. (People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Possession of marijuana for sale, for which defendant was convicted in count 5, requires proof of possession with intent to sell, and intent to sell may be established by circumstantial evidence. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) Misdemeanor child endangerment, for which defendant was convicted in count 2, may be established upon proof that the defendant had care and custody over the child he allowed to be endangered. (§ 273a, subd. (b).)
Smith testified that defendant lived with her in her apartment, and indicated he possessed the marijuana found in the apartment. Smith also testified, however, that she had never seen defendant sell any drugs. She also did not direct deputies to the cocaine base or the marijuana that was found in the master bedroom. She only directed them to the shards of cocaine base found on the plate in the kitchen, and to the brick of marijuana found on top of the refrigerator in the kitchen. To the extent Smith’s testimony implicated defendant in the crimes, it was corroborated by ample, independent evidence.
Regarding defendant’s possession of the drugs, J.D. testified that defendant had lived in the apartment for two months prior to the May 5, 2005, search, and that he slept in the master bedroom with Smith and her youngest child, K.G. This directly corroborated Smith’s testimony that defendant lived in the apartment, and independently indicated that he possessed the drugs that were found in the apartment. Most of the rock cocaine and marijuana was found in the master bedroom. Men’s clothing belonging to defendant, not J.D., was also found in the master bedroom. As noted, Smith did not direct deputies to any of the drugs found in the master bedroom.
Regarding defendant’s care, custody and endangerment of Smith’s youngest child, K.G., Smith testified that defendant occasionally watched her children while she was not at home. J.D. corroborated Smith’s testimony on this point when he testified that defendant lived in the apartment and occasionally cooked for the family. And Deputy Peterson observed defendant telling M.L. to watch K.G. during the search. Deputy Peterson also testified about the dangers to children that are associated with being in close proximity to drugs and sales of drugs.
Regarding defendant’s possession of the marijuana for sale, Deputy Peterson testified that defendant had been observed meeting various people briefly in the alley behind the apartment, and that these activities, in combination with the quantities and packaging of the marijuana found in the apartment, was consistent with defendant selling the drugs. In addition, defendant’s cell phone rang repeatedly during the search, indicating he was selling drugs. The jury also heard that defendant was arrested in 2001 with salable quantities of rock cocaine and marijuana on his person.
All of this evidence was independent of Smith’s testimony, corroborated Smith’s testimony, and independently implicated defendant in the commission of the crimes for which he was convicted in counts 1, 2, and 5. Accordingly, the trial court’s failure to give accomplice instructions regarding Smith’s testimony, if erroneous, did not prejudice any of defendant’s convictions.
2. The Failure to Modify CALJIC No. 2.27 Was Not Prejudicial
The trial court gave CALJIC No. 2.27 (Sufficiency of Testimony of One Witness) without the bracketed paragraphs referring to corroboration. The instruction read: “You should give the testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that facts depends.”
Defendant claims the trial court had a duty to modify the instruction, sua sponte, to include the bracketed paragraphs of the standard form instruction that refer to corroboration. Specifically, defendant claims the instruction should have stated: “You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that facts depends.” (CALJIC No. 2.27, italics added.)
The bracketed paragraphs of CALJIC No. 2.27 are required to be given by the trial court, sua sponte, whenever an accomplice witness testifies. (See People v. Chavez (1985) 39 Cal.3d 823, 832-833.) Defendant argues that giving CALJIC No. 2.27 without the bracketed paragraphs was prejudicial, because it allowed the jury to convict him based solely on Smith’s accomplice testimony. As defendant points out, no accomplice instructions were given and the jury was not instructed to determine whether Smith was an accomplice.
Nevertheless, any error in failing to include the bracketed paragraphs in CALJIC No. 2.27 did not prejudice any of defendant’s convictions. In view of the instructions and the evidence as a whole, it is not reasonably probable that the jury convicted defendant in counts 1, 2, or 5 based solely on Smith’s testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
First, and as discussed, independent evidence corroborated Smith’s testimony and linked defendant to the crimes for which he was convicted in counts 1, 2, and 5. In addition, the last sentence of CALJIC No. 2.27 told the jury that it “should carefully review all the evidence upon which the proof of that fact depends.” (Italics added.) In relation to Smith’s testimony, “all of the evidence” included the independent evidence that corroborated Smith’s testimony and linked defendant to the crimes.
Furthermore, the jury was instructed to consider the instructions as a whole, and not to single out any particular sentence and ignore the others. (CALJIC No. 1.01.) The last sentence of CALJIC No. 2.27 qualified the first two sentences by telling the jury it should consider all of the evidence on a given point, and effectively told the jury it should consider the independent evidence linking defendant to the crimes. Absent evidence to the contrary, the jury is presumed to have followed the instructions. (People v. Mendoza (2007) 42 Cal.4th 686, 699.) And here, there is no evidence that the jury did not follow the instructions.
3. Substantial Evidence Supports Defendant’s Convictions
Lastly, defendant claims insufficient evidence supports each of his convictions because Smith’s testimony was not sufficiently corroborated. For the reasons discussed, we disagree.
The standard of review for determining the sufficiency of evidence to support a conviction is well settled. We view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The same standard of review applies when the prosecution relies primarily on circumstantial evidence. (People v. Sanchez (1995) 12 Cal.4th 1, 32.)
Furthermore, and as noted, a conviction cannot be had upon the testimony of an accomplice unless it is sufficiently corroborated. (§ 1111.) The corroborating evidence must tend to connect the defendant to the commission of the offense, and must be independent of the accomplice’s testimony. (People v. Avila, supra, 38 Cal.4th at pp. 562-563.) The elements of the crimes for which defendant was convicted in counts 1, 2, and 5 are set forth above.
For the reasons discussed, evidence wholly independent of Smith’s testimony showed that defendant possessed the rock cocaine found in the apartment (count 1), possessed the marijuana for sale (count 5), and had care and custody over K.G. and subjected K.G. to danger by possessing and selling the drugs found in the apartment (count 2). Contrary to defendant’s argument, none of this evidence required interpretation or direction from Smith’s testimony. (Cf. People v. Reingold (1948) 87 Cal.App.2d 382, 393 [“[C]orroboration is not sufficient if it requires interpretation and direction to be furnished by the accomplice’s testimony to give it value”].)
D. Defendant’s Upper Term Sentences Did Not Violate His Right to a Jury Trial
Lastly, defendant contends that the trial court’s imposition of upper term sentences of three years on counts 1 and 5 violated his right to a jury trial under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), because both upper terms were imposed based on facts neither found true by a jury beyond a reasonable doubt nor admitted by defendant. We reject this claim, because both upper terms were properly imposed based on defendant’s recidivism.
In Cunningham, the high court held that the imposition of an upper term sentence under California’s determinate sentencing law (DSL), based on a judge’s finding by a preponderance of the evidence that circumstances in aggravation outweighed circumstances in mitigation, violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 871.) The court reasoned that any fact that exposes a defendant to a greater potential sentence than the statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at pp. 863-864.) The court also held that the middle term sentence (here, two years on counts 1 & 5) is the maximum sentence a judge may impose under the DSL without the benefit of facts reflected in the jury’s verdict—that is, facts found true by a jury beyond a reasonable doubt—or admitted by the defendant. (Id. at p. 868.)
In response to Cunningham, the California Legislature amended the DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).) Our references to section 1170 or other provisions of the DSL are to the statutes as they read prior to these amendments.
Following Cunningham, the United States Supreme Court remanded People v. Black (2005) 35 Cal.4th 1238 to the state Supreme Court for reconsideration in light of Cunningham. Thereafter, the state Supreme Court issued companion decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. The court in Black II held that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (Black II, supra, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728; see § 1170, subd. (b).) Accordingly, the court in Black II also held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, supra, at p. 812; People v. Sandoval, supra, at pp. 838-839.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in California Rules of Court, rule 4.421, but also “[a]ny other factors statutorily declared to be circumstances in aggravation” (Cal. Rules of Court, rule 4.421(c)), and any other facts “reasonably related to the decision being made” (Cal. Rules of Court, rule 4.408(a)).
Here, in imposing the upper terms of three years on counts 1 and 5, the trial court found, among other aggravating factors, that: (1) defendant’s prior convictions as an adult or sustained petitions in juvenile proceedings were numerous and of increasing seriousness; (2) defendant served a prior prison term; (3) defendant was on probation or parole when he committed the current offenses; and (4) defendant’s prior performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(2), (3), (4) & (5).) The first and third of these findings were sufficient to render defendant eligible for the upper term sentences on counts 1 and 5. (Black II, supra, 41 Cal.4th at pp. 818-820.)
The second finding, that defendant served a prior prison term, is insufficient to uphold either of the upper term sentences, because the trial court imposed three 1-year terms for each of defendant’s three prison priors. Thus, the use of this finding as a basis for imposing either of the upper term sentences would violate the statutory prohibition against dual use of circumstances in aggravation. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) And, in view of our conclusion that the first and third findings were sufficient to render defendant eligible for the upper terms, we need not consider whether the fourth finding—that defendant’s prior performance on probation or parole was unsatisfactory—was sufficient to render him eligible for either upper term under the circumstances of this case.
Regarding the first finding, the court in Black II explained that the determination that a defendant has suffered prior convictions, and whether those convictions are “numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)), “require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820, citing People v. McGee (2006) 38 Cal.4th 682, 706, fn. omitted.) Similarly, the third finding—that defendant was on probation or parole when he committed his current offenses—may be determined by reference to his prior convictions and probation report.
The trial court’s first and third findings in aggravation are supported by defendant’s probation report, which the trial court read and considered before sentencing defendant. The report showed that in 1986, when defendant was 16 years old, he incurred juvenile adjudications for bringing a weapon onto school grounds (§ 626.10, subd. (a)) and unlawfully fighting or challenging another to fight in a public place (§ 415, cl. (1)). In 1987, when defendant was 17 years old, he admitted committing forcible rape, with the use of a firearm (former §§ 261.2, 12022.3, subd. (a)), and was sentenced to the California Youth Authority for three years. He was parolled from the California Youth Authority in 1990.
Defendant’s history of drug offenses began when he was an adult. In 1991, when he was 21 years old, he suffered his first conviction for felony possession of a controlled substance. (Health & Saf. Code, § 11350.) For this crime, he was sentenced to 16 months in prison. He violated parole in 1994 and 1995. Also in 1995, he was convicted of misdemeanor possession of marijuana. (Health & Saf. Code, § 11357, subd. (b).) In 1997, he was convicted of felony possession of a controlled substance for sale (Health & Saf. Code, § 11351) and was sentenced to two years in prison. He violated parole again in 1998 and 2000.
In 2000, defendant was again convicted of misdemeanor possession of marijuana. In 2001, he was again convicted of felony possession of a controlled substance for sale and sentenced to five years in prison. Defendant admitted he was on parole at the time of his current offenses in May 2005.
Although the precise scope of the recidivism exception to the Apprendi rule has not been comprehensively defined, it clearly encompasses the trial court’s findings that defendant’s prior convictions were numerous or of increasing seriousness, and that he was on parole when he committed his current offenses in 2005. We therefore uphold defendant’s upper term sentences on counts 1 and 5.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J. Miller J.