Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA349789. Lance A. Ito, Judge.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Anton Tampiza appeals from his conviction of six counts of automobile burglary. He asks for an independent review of materials reviewed by the trial court pursuant to his “Pitchess motion” for discovery of complaints in the arresting officers’ personnel files. Appellant contends that the court erred in denying his “Marsden motion” after conducting an inadequate inquiry into his reasons for requesting the appointment of new counsel. Appellant also contends that his conviction of two counts of automobile burglary––4 and 5––must be reversed, because there was no substantial evidence that the cars had been locked prior to the break-in. We reject appellant’s contentions, and affirm the judgment.
See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045. “‘The statutory scheme carefully balances two directly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to the defense.’ [Citation.] The legislation achieves this balance primarily through a procedure of in camera review, set forth in section 1045, subdivision (b), whereby the trial court can determine whether a police officer’s personnel files contain any material relevant to the defense, with only a minimal breach in the confidentiality of that file.” (People v. Jackson (1996) 13 Cal.4th 1164, 1220.)
See People v. Marsden (1970) 2 Cal.3d 118, 123 through 124 (Marsden).
BACKGROUND
Appellant was charged with one count of first degree burglary (count 1, Pen. Code, § 459) and five counts of second degree burglary (counts 2–6, Pen. Code, § 459). In addition, the information alleged pursuant to Penal Code section 12022.1, that appellant was out of custody, on bail on his own recognizance at the time of the commission of the offenses. The jury returned guilty verdicts on all counts. The trial court struck the sentence-enhancing allegation under Penal Code section 12022.1, and sentenced appellant to seven years, four months in prison: the middle term of four years on count 1, and one third the midterm (eight months) on each of the five counts, to be served consecutively. Appellant filed a timely notice of appeal from the judgment.
The charges against appellant stem from events on November 9, 2008, in the multi-level parking garage of a large apartment building, the Orsini Apartments at Sunset Boulevard and Figueroa Street in Los Angeles. Kathleen Martin, a resident who parked on the third floor of the parking structure, arrived home that evening at approximately midnight, and saw appellant in the garage. Appellant was walking very slowly past a light colored Lexus. He turned and confronted Ms. Martin as she waited for the elevator. At the time he was holding what appeared to be a metal pipe. He spoke to her aggressively in slurred speech with an accent she could not place.
Appellant had been a resident of the Orsini, and his mother still lived there.
After going to her apartment, Martin immediately went to the security office because she felt that she had been harassed and as if she could have been in danger. She was instructed to go to the first floor of the garage. There, she saw several other residents speaking to security guards near their cars, which had been broken into. As she went through the parking structure with a security guard and some of the people who had had their cars broken into, appellant came into view, still holding the metal pipe. When a guard spoke to him, he ran toward a street exit. After a street pursuit, the security guard detained appellant and held him for the police. Appellant was advised of his Miranda rights and questioned. Appellant admitted to the police that he had broken car windows, and told the officers that he had thrown items stolen from the cars over a fence.
(Miranda v. Arizona (1966) 384 U.S. 436.)
Three of the car owners testified at trial. Julie Park, the guest of a resident, testified that she had parked and locked her Honda Civic earlier that evening in the Orsini parking structure. When she returned, the driver’s side window had been broken. Ms. Park identified exhibit 1, which consisted of three photographs of a Honda Civic with California license plate 5RCE567 as depicting her damaged car. Her iPod and Chanel sunglasses were missing. Resident Anthony Glenn Christodoulou testified that he had parked and locked his car when he returned from work at approximately 5:00 p.m. the previous afternoon. When he inspected his car early the next morning, he found the driver’s side window broken and the electric garage opener for the apartment complex garage was missing. Mr. Christodoulou identified exhibit 5, two photographs of a white Ford Focus, New Mexico license plate GBP094 as depicting his car. Orsini resident Crystal Nicole Kincaid testified that she had parked and locked her car sometime in the afternoon of November 8, 2008, in her assigned parking space. When she saw it the next morning, the passenger side window was smashed in and the exterior door panel was split in half and disconnected from the interior panel. There was glass everywhere and the roof of her car was also dented. Ms. Kincaid identified exhibit 4, two photographs of a Subaru with California license plate 4ZDE687 as depicting her car. Her portable GPS device was missing.
Two of the affected residents, Anupami Premjani and Natasha Jaya, did not testify, but on the day of the burglaries, Orsini Customer Service Manager, Miguel Ramirez, prepared an incident report in the normal course of his duties, after speaking to these two residents personally. The trial court sustained appellant’s hearsay objection, and excluded the report. However, Ramirez testified that Premjani and Jaya complained to him that night that items had been taken from their cars.
On the day of the incident, Los Angeles Police Officer Scott Danielson took photographs of the damaged cars while investigating the burglaries. The photographs were admitted into evidence as exhibits 1, 4, 5, 6 and 7. The photographs showed the license plate and the damaged window of five different cars. Exhibit 6 consisted of two pages. The first depicted the back of a BMW, California license number 6BDN061, the subject of count 5. The second photo depicted the passenger side with the front window almost completely smashed out. Pieces of broken glass were visible on the ground next to the broken window.
Exhibit 7 consisted of two pages, the first depicted the back of a black Honda with California license plate 6ALB948, the subject of count 4. The second photograph depicted the vehicle’s driver’s side with the front driver’s window almost completely smashed out. Broken pieces of glass could be seen on the ground next to the broken window.
Officer Danielson testified that he was present when Officer Guerra interviewed appellant on November 9, 2009. When asked where he put the items he had stolen from the cars, appellant said that he had thrown them over a fence, but he refused to show them where he had thrown them. Asked why he smashed the windows of the cars, appellant replied that he only smashed the windows, but no one saw him in the cars. He refused to write out a statement.
Elizabeth Quinteros testified in appellant’s defense that they had been out for the day and evening in Santa Monica and Hollywood, and did not want to drive back to Palmdale so late at night. Appellant wanted to check on his mother, who lived at the Orsini, so they went into the garage, parked behind his mother’s car, and sat in Quinteros’s car talking for an hour or so. She left him there at approximately 1:45 a.m.
Appellant testified that when Kathleen Martin saw him, he did not have a metal pipe, but only his very large watch, which he held in his hand. Appellant claimed that he ran from the security guard, because he was frightened. Appellant explained that it was 2:00 in the morning, the guard was a big man who did not identify himself, and his uniform was not visible under his jacket.
Appellant denied admitting to Officer Guerra that he broke the car windows. Appellant testified that he did not remember saying he threw anything behind the fence, explaining that his tongue was swollen because he had been pepper-sprayed, and he was frightened, confused, and in pain. Appellant denied having said that no one saw him inside any car. He testified that he asked, “Why am I being arrested? What, did anybody see me inside of the car?” Appellant denied that he took anything from the cars. He explained that he was at the Orsini to visit his mother, and planned to wait in the garage until she got up to go to work. He passed the time by cleaning his car, which was parked there.
DISCUSSION
I. Pitchess Motion
Prior to trial, appellant brought a Pitchess motion for discovery of information about Officers Danielson and Guerra contained in their personnel files. He sought complaints about the officers relating to aggressive or violent behavior, group bias, violation of constitutional rights, dishonesty, and any other evidence of moral turpitude.
The trial court granted the motion as to Officer Guerra only insofar as it sought material related to false statements in police reports, and as to Officer Danielson only insofar as it sought material related to false statements in police reports and under oath. The court held an in camera hearing during which it reviewed several hundred pages of material submitted by the Los Angeles Police Department custodian of records. Because the Police Department found no relevant documents relating to Officer Danielson, the court denied discovery of his personnel files. The court ordered the discovery of two items relating to Officer Guerra, including the name, address, and telephone number of witnesses.
On appeal, appellant requests this court to review the trial court’s determination that there were no other discoverable items in the records. The trial court’s determination is reviewed for an abuse of discretion. (People v. Jackson, supra, 13 Cal.4th at pp. 1220–1221.) Because the trial court preserved the documents it reviewed, we find the material in the record sufficient to review the trial court’s exercise of discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228–1229.)
We have reviewed the sealed record of the in camera proceedings including the material produced by the Los Angeles Police Department custodian of records. We are satisfied that the trial court properly exercised its discretion in determining that the documents produced complied with the scope of the Pitchess motion, that no documents or information relating to Officer Danielson should be disclosed to the defense, and that other than two items, there were no discoverable documents or information relating to Officer Guerra.
II. Marsden Motion
Appellant contends the trial court violated his right to the assistance of counsel under the Sixth Amendment to the United States Constitution, by denying his motion for new counsel without a sufficient inquiry into the basis for his request.
When a defendant requests new counsel, the trial court must give him an opportunity to explain his request. (People v. Smith (2003) 30 Cal.4th 581, 604; Marsden, supra, 2 Cal.3d at pp. 123–125.) The defendant must be allowed to state all the reasons for his dissatisfaction with appointed counsel. (People v. Lewis (1978) 20 Cal.3d 496, 498–499.) The court must make a “‘critical factual inquiry [which] ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; [and] whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.’ [Citation.]” (Marsden, supra, at pp. 123–124.)
The purpose of the court’s inquiry is to permit a proper exercise of discretion. (People v. Clark (1992) 3 Cal.4th 41, 104.) “‘[T]he right to the discharge or substitution of court-appointed counsel is not absolute, and is a matter of judicial discretion unless there is a sufficient showing that the defendant’s right to the assistance of counsel would be substantially impaired if his request was denied.’ [Citation.]” (Ibid.) We review the denial of the motion under the deferential abuse of discretion standard. (People v. Cole (2004) 33 Cal.4th 1158, 1190.) “Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 435.)
When appellant requested the appointment of new counsel, the court held a Marsden hearing and asked appellant to state his reasons. Although a Russian interpreter had been assigned to assist him, and the court asked appellant to state his reasons in Russian, appellant explained in English: “Well, because she’s too busy and I asked her to make a few-how do they say?-There is a conflict of interest.”
The court then asked defense counsel, Ms. Butko, to summarize the work that she had done so far on appellant’s behalf. She stated that she had summarized the police report and preliminary hearing transcript, that she had reviewed them with appellant, and that she and other public defenders had held discussions with appellant a number of times. Ms. Butko stated that she had two witnesses, one in court, and the other, Miguel Ramirez, would be subpoenaed that day, along with his logs showing other burglaries in the area. Her investigator had looked into other burglaries at the Orsini, and had taken photographs of the property in appellant’s possession at the time of his arrest. She had conducted a number of investigations.
The court noted that Ms. Butko had filed a Pitchess motion, a supplemental Pitchess motion, and had just told the court that she intended to file another motion. The court concluded that counsel had done ample investigation and work on the case, was “doing quite a fine job” for appellant, and that any conflict was appellant’s fault. Without inquiring further of appellant, the court denied the motion.
Appellant contends that the court should have asked appellant what it was that he had asked counsel to do that was not done, and should have given appellant the opportunity to explain the perceived conflict of interest. The court did, in fact, give appellant the opportunity to explain. The court allowed appellant to state his reasons without interruption, and encouraged him to do so in his native language. However, appellant insisted upon English, and although he could not find the exact words to describe what he had asked counsel to do, the court reasonably construed the words, “to make a few...” as motions. Counsel then gave an extensive account of motions brought and other work done on appellant’s behalf. The court reasonably construed “conflict of interest” as a time conflict, and satisfied itself that counsel had taken the time to provide adequate assistance.
There is no indication in the record that the court misconstrued appellant’s words. As respondent notes, appellant was capable of expressing himself in English, as shown by his statement to the court at sentencing, his interview with officers after his arrest, and the testimony of his girlfriend, Elizabeth Quinteros, that he regularly spoke English with her. Further, a Russian interpreter was standing by, and the court encouraged appellant to speak Russian. Thus, appellant had been invited to express his reasons, and after he was given sufficient opportunity to describe his dissatisfaction with his appointed counsel, he complained only of counsel’s workload and the motions he wanted brought on his behalf.
We find no basis to conclude that the trial court failed to conduct a proper Marsden inquiry or abused its discretion in denying the motion.
III. Substantial Evidence––Counts 4 and 5
Appellant challenges his conviction on counts 4 and 5, the second degree burglary of Anupami Premjani’s Honda Civic and Natasha Jaya’s BMW sedan. Appellant contends that the convictions must be reversed, because substantial evidence did not establish that the doors of the two cars were locked. He contends that it was insufficient simply to show that windows of the two cars had been broken the night of appellant’s arrest.
“Every person who enters any... vehicle as defined by the Vehicle Code, when the doors are locked, ... with intent to commit grand or petit larceny or any felony is guilty of burglary....” (Pen. Code, § 459.) “‘[N]either forced entry in the usual sense of the word nor use of burglar tools are elements of automobile burglary.’ [Citation.] The key element of auto burglary is that the doors be locked.” (In re James B. (2003) 109 Cal.App.4th 862, 868.) “What this means is that where a defendant ‘used no pressure, ’ ‘broke no seal, ’ and ‘disengaged no mechanism that could reasonably be called a lock, ’ he is not guilty of auto burglary. [Citation.]” (In re Young K. (1996) 49 Cal.App.4th 861, 864.)
A defendant might still be convicted of theft and auto tampering. (See People v. Mooney (1983) 145 Cal.App.3d 502, 503–505.)
Appellant relies upon People v. Burns (1952) 114 Cal.App.2d 566 (Burns), where the appellate court reversed a vehicular burglary conviction, after finding the evidence insufficient to support a finding that the car was locked at the time of the crime. (Id. at p. 570.) The court explained: “The fact that the windwing was broken and glass was on the front seat was not proof that the doors of the Buick were locked, and an inference could not be drawn from that fact that the doors were locked. There was no evidence as to the condition of the windwing at the time the Buick was left at the parking place-the broken condition could have been caused in various ways not related to the alleged burglary. The evidence was insufficient to support a finding that the doors of the Buick were locked.” (Ibid.)
Respondent relies upon People v. Rivera (2003) 109 Cal.App.4th 1241 (Rivera), which discussed and rejected the suggestion in Burns that a broken window is not evidence that the car was locked. (Rivera, supra, at pp. 1243–1245.) In Rivera, police officers responding to a report of a vehicle break-in, saw the defendant come out of a car with a broken window, throw down a screwdriver and some papers, and then flee when he saw the officers. (Id. at p. 1243.) A reasonable inference that the car was locked arose from the broken window, particularly when considered along with the evidence of the unbroken condition of the window sometime earlier in the day and the officers’ observations. (Id. at p. 1245.)
We find the circumstances here to be clearly distinguishable from those in Burns as we need not rely on a single factual circumstance to determine whether the cars were locked. Under the substantial evidence test, we must examine the whole record, and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We consider all “evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
We agree with respondent and the Rivera court that “[i]t is not rational to conclude someone would break a car window in the early morning hours in order to enter a car that is unlocked.” (Rivera, supra, 109 Cal.App.4th at p. 1245.)
The inference that the doors were locked is particularly strong when the condition of the windows is considered with other substantial evidence that was presented in this case. The photographs in exhibits 6 and 7 show that the windows of the Honda and BMW were broken out sufficiently to allow a person to reach well into the cars. Appellant admitted that he broke car windows in the Orsini garage during the early morning hours of November 9, 2008, and he was seen fleeing the parking structure with a metal pipe just after several residents had discovered their cars with broken windows. Three of the residents identified photographs of their cars showing windows that had been similarly broken that morning, and they testified that items were missing from them. Ramirez testified without objection that Premjani and Jaya complained to him that night that items had been taken from their cars, as well. The police arrived a short time after the break-ins were discovered, and after taking appellant into custody, Officer Daniels photographed all five cars with broken windows in the Orsini garage that morning, including the Honda and the BMW.
The evidence as a whole makes clear that appellant was determined to steal from the cars, not just to vandalize them. His conduct leads to a reasonable inference that he broke the windows because he could not steal from locked cars. We are satisfied that substantial evidence supports appellant’s conviction of counts 4 and 5.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.