Opinion
F084540
02-22-2024
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ROJAS, Defendant and Appellant.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Jamie A. Scheidegger and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF184863B. Judith K. Dulcich, Judge.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Jamie A. Scheidegger and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
A jury convicted Raymond Rojas (appellant) of two counts of possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1); counts 1 and 7); two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 2 and 6), misdemeanor possession of drug paraphernalia (Health &Saf. Code, § 11364; count 3), discharging a firearm at an occupied motor vehicle (§ 246; count 4), second degree robbery (§§ 211, 212.5, subd. (c); count 5), and possession of a stolen vehicle (§ 496d, subd. (a); count 8). As to counts 4 and 5, the jury found true enhancements for discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), discharge of a firearm (§ 12022.53, subd. (c)), and personal infliction of great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found appellant suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction (§ 667, subd. (a)). The trial court sentenced appellant to 25 years to life plus 17 years four months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends the trial court should have granted his pretrial motion to replace appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We conclude the trial court did not err in denying the motion, and that any presumed error was harmless. We affirm.
BACKGROUND
I. During a Probation Search, Officers Discover a Loaded Revolver and Two Methamphetamine Pipes Inside of Appellant's Residence. (Counts 1, 2, and 3.)
During a March 27, 2021, probation search of appellant's residence, officers located a loaded .38-caliber revolver in the bedroom closet and two methamphetamine pipes in the bathroom. After the search, appellant admitted to a probation officer that the revolver and methamphetamine pipes belonged to him.
II. Appellant Robs the Victim at Gunpoint and Shoots Him in the Leg. (Counts 4 and 5.)
On July 17, 2021, Sean Mullins picked up his friend Michael Eldridge. Mullins testified that while they were driving to the mall, he saw his friend's stepfather, a man named Charles, walking down the street. Mullins stopped and spoke to Charles, who said his car had broken down, and asked if Mullins would take him to his house to get his wallet, then to an auto parts store. Mullins told Charles he would take him to the auto parts store and loan him the money for the part he needed. Charles got into the back seat of the car, and they drove to the auto parts store.
Mullins parked in front of the auto parts store and took out his wallet, which contained $1,500. He began counting money to loan to Charles. While he had his money out, he saw a green car had parked behind his car, blocking him in. He looked in his driver's side mirror and saw appellant running toward him with a gun in his hand. He was familiar with appellant because they had both dated the same woman.
Appellant stood by the driver's side door, pointed the gun at Mullins, and demanded money. Mullins described the gun as "two-tone"-black on the top and "black/brown" on the bottom. Mullins refused to give appellant his money, and appellant repeated his demand. After Mullins refused several more times, appellant shot his gun into the car. The bullet traveled through the driver's side window and hit Mullins in the thigh. Appellant then reached into the car and took Mullins's money, got back into the green car, and drove away.
Mullins was taken to the hospital where he remained for several days. He underwent surgery and was unable to walk without assistance for nine months.
Eldridge's testimony and description of the robbery was consistent with Mullins's testimony. He identified appellant as the robber at trial.
An investigating officer recovered an expended .40-caliber cartridge casing from the auto parts store parking lot where Mullins was parked.
III. Appellant is Found in Possession of a Stolen Car at a Motel. During a Search of Appellant's Room at the Motel, Officers Recover the Firearm Used in the Robbery. (Counts 6, 7, and 8.)
On August 4, 2021, officers from the Kern County Auto Theft Task Force located a vehicle parked in a motel parking lot that had been reported stolen. Inside of the car's glove box, officers found a certificate of title with the registered owner's name on it. Attached to the certificate was a notice of transfer form filled out with appellant's name.
The registered owner of the car testified it was stolen on July 26, 2021. She did not fill out the title transfer slip and did not give appellant permission to drive her car. She estimated the value of the vehicle to be $4,500.
A technician processed the car for evidence and discovered a latent fingerprint matching appellant's left thumb on the rearview mirror. An officer located a pouch on the left rear seat of the car containing seven unexpended rounds of ammunition.
Officers contacted the motel clerk and discovered appellant had rented a room with a person known to be his girlfriend. Appellant and the girlfriend were contacted in the motel room and detained. Inside of the room, a technician located a .40-caliber pistol inside of a purse on a nightstand. The top portion of the pistol was black in color, and the bottom half was brown. The magazine inside of the pistol was loaded with six unexpended cartridges. The technician also located a backpack in the motel room containing six boxes of unexpended ammunition.
Mullins was shown a photograph of the .40-caliber pistol and identified it as the same firearm appellant used in the robbery. A firearms identification expert test fired the .40-caliber pistol. She compared the cartridge casing produced by the test firing to the cartridge casing recovered from the scene of the robbery, and opined they were both fired by the same firearm.
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion in Denying Appellant's Marsden Motion. Any Presumed Error was Harmless.
Prior to trial, appellant made Marsden motions on two separate occasions. In each of the ensuing hearings, appellant complained that he was not getting along with defense counsel, and that defense counsel was not making adequate efforts to negotiate with the prosecution to secure a favorable plea bargain. In addition, at the second Marsden hearing, appellant claimed that his mother overheard defense counsel refer to appellant as a "dick" while speaking with the prosecutor. The trial court denied the motions, finding defense counsel had provided appellant with effective representation, and that the insult did not prevent defense counsel from continuing to do so.
Appellant contends the trial court abused its discretion in denying the second Marsden motion. He alleges defense counsel's insult constituted a breach of the duty of loyalty, causing appellant to lose trust and confidence in his attorney, resulting in a total breakdown of communication. We reject this claim. We conclude the trial court's finding that defense counsel was capable of providing appellant with adequate representation was reasonable, and that any presumed error was harmless.
A. Background.
1. The Marsden hearing on February 2, 2022.
Appellant's first Marsden hearing occurred on February 2, 2022, over three months before trial. Appellant complained that he and defense counsel were "not seeing eye to eye." He asserted that he had asked defense counsel to make a counteroffer, but defense counsel refused to do so, telling him the prosecution would not accept it. He also claimed defense counsel had not provided him with copies of discovery.
Defense counsel responded that he had provided appellant with copies of discovery and gone over it with him. He conceded he had not provided appellant with some additional discovery on the robbery case but agreed that he would redact it and provide appellant with copies.
Defense counsel explained that appellant faced a term of 25 years to life due to the section 12022.53, subdivision (d) enhancement, and that the People recently reduced their plea offer from 17 years to 14 years four months. Appellant requested defense counsel make a counteroffer of 10 years. Defense counsel communicated the counteroffer to the People, but the People rejected it. Defense counsel expressed concern that appellant would be convicted at trial because the robbery victim knew appellant and positively identified him. Explaining his opinion that appellant should accept the People's current offer, defense counsel stated: "So if it goes to trial, I don't know what we are going to do. I mean, he is looking at going away for the rest of his life. I know 14 years isn't candy time, but it is a lot better-he is a young man. It is a lot better than going away for the rest of your life." He also noted that appellant's prior strike conviction was from 2020 and did not believe a judge would strike it at sentencing.
Appellant responded that he did not want to accept the People's offer despite defense counsel's recommendation, stating: "You know, I feel like I know people that have got 12 years on a murder, you know. I didn't kill nobody. I mean, I didn't really even shoot nobody, and he is trying to tell me take the 14 years ... Now it's all the way down to 14. They dropped six years already, and they are going to continue to drop, and he just wants me to keep taking it. I feel like I can get a better deal." Appellant then reiterated that he wanted defense counsel to make a 10-year counteroffer. Defense counsel responded that he had already made that counteroffer and the People had rejected it, but that he would make it again.
The trial court denied the Marsden motion and asked to bring the assigned prosecutor into the courtroom. The prosecutor confirmed that the People's current offer was 14 years four months. Defense counsel recounted that he "begged [her], basically, to come down to something else." The prosecutor agreed, but explained she would not lower her offer because appellant had numerous charges and was facing a possible life sentence.
2. The Marsden hearing on May 4, 2022.
The second Marsden hearing occurred on May 4, 2022, approximately one week before the start of trial. Appellant asserted that he had been trying to get assistance from defense counsel for several months and that he "hasn't been real helpful to me." Appellant then claimed his mother overheard defense counsel make a disparaging comment about him to the prosecutor, stating:
"My mom overheard him talking about me being, excuse my language, but a dick to the district attorney, [the prosecutor]. He was just speaking on my name, just telling-you know, saying that I'm a dick, I'm just a-just, you know, saying rude things about me, you know.
"And my mom, you know, brought it to their attention and was like hey, you know, you're speaking about my son right now, and he just kind of like walked off and didn't say anything."
Based on this allegation, appellant stated he did not believe defense counsel wanted to represent him and was not working to get the prosecution to agree to a counteroffer.
In response to questioning by the trial court, appellant confirmed that defense counsel had not refused to do or failed to do anything appellant requested. Appellant agreed he has been able to go over his case, charges, and discovery with defense counsel, but claimed he has been unable to discuss his version of events because he only gets to speak with defense counsel "very briefly." Appellant also stated that he does not understand why defense counsel told him he is facing a possible life sentence, and that he thought his maximum exposure was 14 years.
Defense counsel responded that the People were no longer offering to resolve the case because they discovered the pistol found in his possession matched the cartridge casing found at the scene of the robbery. Defense counsel summarized the strength of the evidence against appellant, then stated: "So I hate to say it, but he kind of blew it. He could have resolved this for something that's determinate. Now there's no offer, and I don't know what to do, really." He explained that he "tried vigorously to resolve [the case], but when [appellant] was willing to take ten or 12 years, the offer was gone."
In response to the trial court's questioning, defense counsel confirmed he had reviewed the investigative reports with appellant relating to all of the pending charges, and explained his maximum possible exposure and any possible defenses. Defense counsel did not address, and the trial court did not inquire about, the allegation that defense counsel made a disparaging comment about appellant to the prosecutor.
At the conclusion of the hearing, the trial court denied the Marsden motion, explaining defense counsel was "intimately familiar" with appellant's case, and was able to "articulate for the record, quite effectively, what he anticipates [the People's] case looking like, which puts [appellant] in a precarious situation." The trial court also reasoned defense counsel appeared to have attempted to negotiate on appellant's behalf but was unable to reach a resolution because the prosecution must also agree to a plea deal. As to the allegation that defense counsel made a disparaging comment about appellant to the prosecutor, the trial court explained:
"To the extent [defense counsel] has perhaps stated an epithet about you to another person, it does not appear to the Court that that is going to affect his ability to effectively represent you at trial.
"There is no law that says an attorney and a client have to like one another in order for the attorney to do what is required by law, and knowing [defense counsel], as well as how he has represented you during this hearing, it is apparent that [defense counsel] can reasonably represent you as required by law and that he is able to represent you by way of his preparation."
B. Standard of Review.
When a defendant makes a Marsden motion the trial court must allow the defendant to "explain the basis of his contention and to relate specific instances of inadequate performance." (People v. Smith (2003) 30 Cal.4th 581, 604.) However, a defendant is only 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." (Ibid.) A defendant "must give specific examples of counsel's inadequacies, and cannot rest upon mere failure to get along with or have confidence in counsel." (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
The denial of a Marsden motion is reviewed for an abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) "Denial is not an abuse of discretion 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.'" (People v. Taylor (2010) 48 Cal.4th 574, 599.)
C. No abuse of discretion occurred.
Based on our review of the record, we conclude the trial court's denial of appellant's second Marsden motion was not an abuse of discretion. During both Marsden hearings, the trial court made efforts to ensure that defense counsel's performance was adequate. In response to the trial court's inquiries, defense counsel explained that he had reviewed the evidence in the case with appellant, discussed possible defenses, and explained the maximum possible exposure if convicted at trial. The trial court found defense counsel was "intimately familiar" with the facts of appellant's case, and appellant confirmed there was nothing that he asked defense counsel to do that was not done, or that defense counsel refused to do. The record also established defense counsel attempted to negotiate a plea bargain and communicated appellant's counteroffers to the People. These efforts were unsuccessful only because the prosecution would not accept appellant's counteroffer. Accordingly, the trial court's finding that defense counsel could provide appellant with effective representation was reasonable.
We also conclude it was reasonable for the trial court to find there was no irreconcilable conflict between appellant and defense counsel. Much of appellant's frustration with defense counsel was based on his failure to procure the plea bargain that appellant wanted. But this failure to was not attributable to defense counsel, as he tried to convince appellant to accept the prosecution's offer of 14 years four months, while it was still on the table. Defense counsel also "begged" the assigned prosecutor to accept appellant's 10-year counteroffer but was unsuccessful.
Despite this, appellant alleges defense counsel's purported insult created an irreconcilable conflict. Initially, we note that the factual record of the interaction between defense counsel and the prosecution is far from clear. The only account of the incident is appellant's second-hand recitation of his mother's observations, with no description of the context in which the comment was made. While defense counsel did not address the comments during the second Marsden hearing, he was not asked to do so by the trial court.
However, even assuming defense counsel did in fact refer to appellant as a "dick," and did so in an insulting manner, we are not persuaded that the trial court was obligated to grant appellant's second Marsden motion. As the trial court observed, an attorney and counsel do not have to like one another for the attorney to provide effective representation. Indeed, a trial court is "not required to appoint an attorney whom defendant might like." (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another ground by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)"' "[I]f 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 ... which is certainly not the law." '" (People v. Memro (1995) 11 Cal.4th 786, 857.) Based on the trial court's inquiry into defense counsel's performance, it was justified in concluding that, regardless of some apparent frustration or animus between the parties, defense counsel was still able to adequately represent appellant. As we explained above, the record demonstrates defense counsel was familiar with appellant's case, communicated with appellant, and made extensive efforts to negotiate a plea bargain on his behalf. While appellant generally asserts the insult resulted in a loss of trust and breakdown in communication, he does not articulate specific instances of how the insult resulted in ineffective representation.
Appellant also contends defense counsel's conduct was a breach of his duty of loyalty, given that the insult was made to the assigned prosecutor. We recognize that a criminal defendant's Sixth Amendment right to counsel "includes the correlative right to representation free from any conflict of interest that undermines counsel's loyalty to his or her client." (People v. Doolin (2009) 45 Cal.4th 390, 417.)" 'Attorneys have a duty to maintain undivided loyalty to their clients to avoid undermining public confidence in the legal profession and the judicial process. [Citation.]'" (King v. Superior Court (2003) 107 Cal.App.4th 929, 950.) However, we reject appellant's assertion that defense counsel's purported insult resulted in a conflict of interest, prevented appellant from obtaining a favorable plea bargain, or otherwise undermined his defense. Thus, the trial court's assessment that defense counsel's purported insult did not result in an irreconcilable conflict was reasonable, particularly in light of defense counsel's otherwise extensive efforts to provide effective representation.
To be clear, we do not approve of an attorney making disparaging comments about his or her client to opposing counsel. However, our task is limited to assessing whether the trial court's denial of appellant's second Marsden motion was an abuse of discretion. As we explained above, the record only includes appellant's allegation, and does not clearly establish whether defense counsel did in fact insult appellant. But even assuming the insult was made, considering the totality of the record, appellant has not shown his right to assistance of counsel was substantially impaired or that an irreconcilable conflict had occurred. (See People v. Taylor, supra, 48 Cal.4th at p. 599.) Accordingly, the trial court did not err, and this claim lacks merit.
D. Any presumed error was harmless.
"The standard for prejudice regarding a denied Marsden motion is under Chapman v. California (1967) 386 U.S. 18. [Citation.] Under that standard, we must ask whether the denial was harmless beyond a reasonable doubt." (People v. Loya (2016) 1 Cal.App.5th 932, 945.)
The record does not establish that the trial court's failure to relieve defense counsel substantially impaired appellant's right to counsel. Defense counsel was familiar with the evidence against appellant, thoroughly cross-examined all prosecution witnesses at trial, and made appropriate arguments to the jury. While appellant suggests there may have been a breakdown in communication between himself and defense counsel, he does not identify any specific examples in the record indicating defense counsel's performance was deficient.
Additionally, the evidence of appellant's guilt was overwhelming. Following the probation search, appellant admitted that the loaded revolver and methamphetamine pipes belonged to him. He was identified as the perpetrator of the robbery by the victim, who knew appellant, and by another witness. The distinctive two-tone pistol appellant used during the robbery was discovered in his motel room inside of his girlfriend's purse. A firearms expert test fired the pistol and determined it matched an expended cartridge casing found at the scene of the robbery. Finally, appellant's fingerprints were located inside of the stolen car parked at the motel, and his name was written on a forged vehicle transfer form inside of the car.
Given the clear evidence of guilt and defense counsel's performance at trial, the guilty verdicts rendered in this trial were surely unattributable to the purported error. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) We therefore conclude beyond a reasonable doubt that trial court's failure to grant appellant's second Marsden motion did not prejudice him, and this claim fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, J. SNAUFFER, J.