Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. O6HF0273 Richard M. King, Judge.
John L. Dodd, 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, Assistant Attorney General, Lilia E. Garcia, Arlene A. Sevidal and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Craig C. Stevens challenges his convictions for one count of stalking and three counts of criminal threats. He contends the court inadequately inquired into his counsel’s purported conflict of interest, requiring automatic reversal. He further contends insufficient evidence supported one of the criminal threat convictions, and the court wrongly failed to stay sentencing on all of those convictions.
We affirm. The court made an adequate inquiry of retained defense counsel into the purported conflict; it had no duty to inquire of defendant. Moreover, defendant fails to show that any actual conflict existed or that the court abused its discretion by finding a motion to withdraw as counsel would be untimely.
In addition, substantial evidence showed the criminal threat in question reasonably caused the victim to be in actual fear, even though she received the threat months after it was sent. Finally, the court properly imposed sentence on the criminal threat convictions because they arose from criminal objectives separate from the objective underlying his stalking.
FACTS
Defendant’s Harassment and Threats
Defendant dated the victim from 2004 until September 2005, when they returned separately from an acrimonious overseas vacation. When the victim returned to work on September 29, 2005, she found flowers had been sent to her from “Ed” — defendant knew that Ed was the victim’s former boyfriend who had stalked her years before. Defendant had left a voicemail for the victim, in which he stated he wanted to talk to the victim about Ed. Defendant sent emails to the victim asking her to return gifts and reimburse him for vacation expenses.
The victim showed a picture of defendant to the florist, and then contacted the Orange County Sheriff’s Department. A deputy sheriff told defendant the victim was concerned about his contact with her. Defendant stated he would stop contacting the victim.
Over the next two months, the victim suffered through a series of unsettling events. Someone sent anonymous letters to the victim’s employer containing baseless accusations of corporate wrongdoing, made up to 20 hang-up calls a day to the victim, left her screaming and yelling voicemail messages, and posted dozens of flyers with the victim’s personal information (name, date of birth, telephone number, social security number) along her street and at a shopping mall.
The victim also received dozens of text messages making unnerving statements. These included “You just don’t get it,” “[I] am following you now,” “911,” “Look outside,” “I’m on [a nearby street],” “[that] Wonder Bra helps,” “Expect me tonight,” “I have pictures of you sucking dick,” and “Tell stupid cunt that I distributed flyers around the county with her social security number on it and phone number.”
On December 9, 2005, the victim received a text message stating, “I’m coming over to fuck you.” On December 17, she received a text message stating, “If you leave you’ll get fucked up.” Each message terrified the victim. She felt the sender would harm her “at any time,” whether she left her house or stayed inside. The victim obtained a temporary restraining order against defendant.
At a February 2006 deposition, the victim learned defendant had sent her a text message on December 19, 2005, which stated, “Your ass is mine. My moment is upon you.” Reading the message at the deposition caused her to be in fear “all the time.” She felt as though she “couldn’t get away from him. That it was still going to continue no matter what happened, whether [she] had a restraining order or not. Some way he was going to continue to threaten [her].”
The People filed an information that, as later amended, charged defendant with one count of stalking between September and December 2005 (Pen. Code, § 646.9, subd. (a)) and three counts of issuing criminal threats on or about December 9, 17, and 20, 2005, respectively. (§ 422.) At trial, the prosecution offered evidence showing defendant had ordered the flowers sent by “Ed,” sent the accusatory letters and text messages, and made the flyers. The jury found defendant guilty on all counts.
All further statutory references are to the Penal Code.
The Conflict of Interest
At the sentencing hearing, retained defense counsel “declare[d] a conflict of interest.” The court stated it would research whether it could inquire into the conflict. It asked defense counsel whether defendant had retained new counsel to replace him or wanted appointed counsel. Defense counsel stated defendant “has been seeking independent counsel but has yet to retain independent counsel.” The court clarified, “So we don’t have the situation where the defendant is substituting counsel at this time.” Defense counsel replied, “That’s correct.”
After a recess to perform legal research, the court stated “it has a duty to inquire into the conflict.” It stated, “[W]hat we are really dealing with is a petition basically to withdraw as counsel. I mean, that’s — we call it a conflict, but it’s basically you’re moving the court to withdraw as retained counsel.... The court has a duty to inquire, and it — it cannot be just a blanket statement by counsel that, ‘I have a conflict.’ I have a duty to explore the conflict. Counsel has a duty to respond and to describe the general nature of the conflict, but obviously within the confines of the attorney-client privilege.”
Defense counsel replied defendant had not paid his attorney fees. He further stated “the other two items that I believe create a conflict would go into privileged information.”
The court found lack of payment did not constitute good cause to withdraw as counsel. It further noted, “[T]he granting of this motion would be a severe disruption to the orderly administration of justice as it relates to this case for the reasons I’ve set forth: the victim being here, the prosecutor being here, the case has been fully litigated, and the only act that is left is to impose sentence.”
Defense counsel requested an in camera hearing to disclose the other purported conflicts to the court. The prosecutor stated no objection. The court took defense counsel, the reporter, and the clerk into chambers. Defense counsel stated defendant became unsatisfied with his representation after his conviction and desired new counsel. Defense counsel also stated defendant was threatening to file a malpractice suit against him. The court noted, “There are no specifics that the court has been provided with other than the defendant’s opinion that counsel has done an inadequate job.” “Based on the record that the court has, the court does not find that from the facts before me that there is a conflict.” The court repeated its ruling in open court.
Defendant discloses the substance of counsel’s statements in his opening appellate brief, which was not filed under seal.
The court sentenced defendant to a total term of two years, eight months in state prison. It imposed a two-year middle term on the stalking count (count 1). It imposed a consecutive eight-month term (one-third of the two-year middle term) on one of the criminal threat counts (count 2). It imposed concurrent two-year middle terms on the remaining two criminal threat counts (counts 3 and 4).
DISCUSSION
The Purported Conflict of Interest Does Not Require Reversal
Defendant contends the court violated its duty to inquire of defendant himself about his retained counsel’s purported conflict of interest and wrongly prevented him from substituting retained counsel.
The Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15, of the California Constitution guarantee the right to effective assistance of counsel. “That entitlement includes the right to representation that is free from conflicts of interest.” (People v. Jones (1991) 53 Cal.3d 1115, 1134 (Jones).)
“In Mickens v. Taylor (2002) 535 U.S. 162... (Mickens), the high court confirmed that claims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that... generally require a defendant to show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the result of the proceeding would have been different. [Citations.] In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest ‘that affected counsel’s performance — as opposed to a mere theoretical division of loyalties.’ [Citations.] ‘[I]nquiry into actual conflict [does not require] something separate and apart from adverse effect.’ [Citation.] ‘An “actual conflict,” for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.’” (People v. Doolin (2009) 45 Cal.4th 390, 417-418 (Doolin).)
Defendant fails to meet his burden of showing an actual conflict of interest that adversely affected counsel’s performance. At the sentencing hearing, defense counsel noted only that defendant was dissatisfied with his representation. On appeal, defendant adds no substance to flesh out his vague sense of ennui. He does not assert retained counsel performed deficiently in any way. He does not even purport to show the adverse effect that is required to raise mere dissatisfaction from the level of “‘theoretical’” to an actual conflict. (Doolin, supra, 45 Cal.4th at p. 417.)
Instead, defendant contends the court committed reversible error per se by failing to inquire of him personally regarding the conflict of interest. Not so. The United States Supreme Court addressed “what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” (Mickens, supra, 535 U.S. at p. 164.) It held the defendant must “establish that the conflict of interest adversely affected his counsel’s performance.” (Id. at p. 174.) It rejected the claim “that outright reversal is mandated when the trial court neglects a duty to inquire into a potential conflict of interest.” (Id. at p. 170, fn. 3.) If the trial court’s failure to make any inquiry at all is not reversible without a showing that an actual conflict exists — i.e., “a conflict that affected counsel’s performance —” (Id. at p. 171) surely no automatic reversal is required where the court made a thorough inquiry of defense counsel, as the court did here, and declined only to inquire of defendant himself.
The California Supreme Court expressly adopted Mickens as the framework for reviewing conflict of interest claims under the California Constitution this year in Doolin, supra, 45 Cal.4th at pp. 417-418, 421. But the standard is not entirely new. In 1991, the California Supreme Court held, “A trial court’s failure to inquire into the possibility of a conflict of interest or to adequately respond to its inquiry is reversible error only if the defendant shows ‘that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance.’” (Jones, supra,53 Cal.3d at p. 1137.)
To be sure, a defendant who wishes to replace his appointed counsel is entitled under California law to explain his reasons to the court and relate specific instances of purportedly inadequate performance. (People v. Marsden (1970) 2 Cal.3d 118, 124-125 (Marsden); see People v. Kelley (1997) 52 Cal.App.4th 568, 580 [defendant’s new trial motion asserting counsel’s incompetence triggered Marsden inquiry].) But defense counsel in this case was retained, not appointed. The court need not entertain a Marsden hearing when defense counsel has been retained. (People v. Ortiz (1990) 51 Cal.3d 975, 986 (Ortiz).) This is because a defendant’s “‘right to retain counsel of one’s own choosing’” (People v. Courts (1985) 37 Cal.3d 784, 789) includes “[t]he right... to discharge his retained attorney, with or without cause” (Ortiz, supra, 51 Cal.3d at p. 983).
Even so, reversal is not required if defense counsel’s statements are taken — as the trial court did — as a motion to substitute retained counsel. “A nonindigent defendant’s right to discharge his retained counsel, however, is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice.’” (Ortiz, supra, 51 Cal.3d at p. 983.) A “defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial.” (People v. Blake (1980) 105 Cal.App.3d 619, 623-624.) No “mechanical test” is employed; “each case must be decided on its own facts.” (Id. at p. 624.) “[T]he burden is on the defendant to establish an abuse of discretion.” (Ibid.)
Here, defendant shows no such abuse. The court expressly found a motion to withdraw as counsel would be untimely: “the granting of this motion would be a severe disruption to the orderly administration of justice as it relates to this case for the reasons I’ve set forth: the victim being here, the prosecutor being here, the case has been fully litigated, and the only act that is left is to impose sentence.” Moreover, the record does not show defendant had retained new counsel or gave any indication when he would be prepared to proceed with sentencing. The last-second timing of the motion, the uncertainty of when (if ever) new counsel would be retained, and the disruption of an orderly sentencing hearing (that the victim had taken the time to attend) support the court’s exercise of discretion. (See Ortiz, supra, 51 Cal.3d at p. 983; People v. Blake, supra, 105 Cal.App.3d at pp. 623-624; cf. People v. Turner (1992) 7 Cal.App.4th 913, 919 [on first day of trial, no abuse to deny motion asserting vague dissatisfaction].) As the California Supreme Court observed in denying a Marsden motion at a posttrial hearing, “The court was not required to stop the nearly completed proceeding in its tracks in order to allow another attorney to completely familiarize himself with the case.” (People v. Whitt (1990) 51 Cal.3d 620, 659.)
Sufficient Evidence Supports the Challenged Criminal Threat Conviction
Defendant contends insufficient evidence supports the criminal threat conviction on count 4, which arose from the December 19, 2005 text message stating “Your ass is mine. My moment is upon you.” Defendant asserts no substantial evidence showed the message caused the victim “to be in sustained fear for... her own safety....” (§ 422.) Rather, he insists the victim’s testimony showed only that she was in fear of receiving further messages from defendant. He also asserts no substantial evidence showed any alleged fear was reasonable. (§ 422.) He contends any “moment” had already passed by the time she read the text message in February 2006.
Section 422 provides in relevant part: “Any person who willfully threatens to commit a crime which will result in... great bodily injury to another person, with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety...,” is guilty of a crime punishable alternatively as a misdemeanor or a felony.
“‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) We “‘view the evidence in the light most favorable’” to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Substantial evidence shows the December 19, 2005 text message caused the victim “to be in sustained fear for... her own safety....” (§ 422.) The victim testified the message caused her to be in fear “all the time.” She felt as though she “couldn’t get away from him. That it was still going to continue no matter what happened, whether [she] had a restraining order or not. Some way he was going to continue to threaten [her].” Defendant too narrowly construes the victim’s use of the word “it” as referring only to defendant’s text messages — these were “still going to continue....” The jury could have reasonably understood the victim to be referring specifically to the threat that “Your ass is mine” — this threatened attack was still going to happen. The jury also could have reasonably understood the victim to be referring generally to defendant’s threats of violence — defendant might still “com[e] over to fuck [her]” or that she could still “get fucked up.” Either way, the victim’s testimony sufficiently established the text message made her afraid “for... her own safety....” (§ 422.)
The victim’s testimony also shows her fear was reasonable. Defendant again indulges a narrow construction, reading the word “moment” as necessarily referring to the instant the message was sent — a moment that had passed. That is one possible interpretation of the word. But it is not the only one. The jury could have reasonably understood “moment” as referring to any particular point in time — in this case, the time at which defendant would harm the victim consistent with his threat, “Your ass is mine.” (See Webster’s 3d New Internat. Dict. (2002) p. 1456 [defining “moment” as “a point of time” or “a particular period”].)
The Court Did Not Err by Failing to Stay Sentencing on the Criminal Threat Counts
Defendant contends the court should have stayed sentencing on the criminal threat convictions because they arise from the same criminal objective underlying the stalking conviction: to frighten the victim.
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether defendant harbored multiple criminal objectives is a question of fact. (People v. Coleman (1989) 48 Cal.3d 112, 162.) If “no express findings [are made] on the issue” — there are none here — “a finding that defendant’s crimes were divisible inheres in the judgment. If that implied finding is supported by the evidence, it must be upheld.” (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
The record supports the implied finding that the criminal threat convictions arose from criminal objectives distinct from that underlying the stalking conviction. Stalking requires repeated following or harassment consisting of a series of acts that amount to a course of conduct. (§ 646.9, subds. (a), (e); see People v. McCray (1997) 58 Cal.App.4th 159, 169-170.) Thus, the criminal objective of defendant’s stalking conduct was the repeated harassment of the victim, intended to create prolonged intimidation and fear. But each criminal threat for which defendant was convicted was a singular act intended to create fear in the victim at the time of its receipt. Each criminal threat thus had its own separate objective that permits the imposition of separate sentences.
Moreover, the jury did not necessarily base the stalking conviction on the alleged criminal threats. The stalking count alleged a pattern of harassment between September and December 2005. The prosecution offered evidence of numerous harassing incidents over that time — hundreds of hang-up calls, dozens of intimidating text messages, flyers disclosing personal information, several screaming voicemails, accusatory letters, and the flower delivery in the name of a former stalker. No reason exists to conclude defendant was being multiply punished for the same conduct.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.