Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA035871, Charles Horan, Judge.
H. Russell Halpern for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
We affirm appellant Reginald Eugene Ware’s conviction for three counts of robbery and one count of felony evasion. Appellant committed the crimes in 1997 but was not sentenced until 2009 because he absconded. After review, we conclude appellant fails to show any prejudicial error.
FACTS
On April 7, 1997, an armed assailant robbed a Chuck E. Cheese restaurant. The assailant had followed employee Eddie into the restaurant before it opened to the public. Christine and Ben, other employees, were inside the restaurant when the assailant entered. The assailant held Christine, Ben and Eddie at gunpoint and demanded that Christine remove money from a safe and place it in a bag he had given Christine. Christine opened the safe and put approximately $1,200 in the assailant’s bag. Then, the assailant ordered the three employees to lie down in the front of the restaurant and left the restaurant.
After the assailant left the restaurant, Ben and Eddie ran to the window to obtain a better view of the assailant. They saw the assailant enter a car; they also saw the driver and wrote down the license plate number of the vehicle—3RQX651. Both Ben and Eddie identified appellant as the driver.
Los Angeles County sheriff deputies traced the vehicle with license plate number 3RQX651 to appellant’s mother, who had rented it, listing appellant as a second driver. After the robbery, on the same day, appellant attempted to switch the vehicle for a different one, but left the rental agency when he encountered a delay. Shortly thereafter, appellant was pursued by sheriff deputies, whom he attempted to evade by weaving in and out of traffic, darting quickly without using signals, and ignoring traffic lights.
Appellant’s mother and sister testified that he was with them at the time of the robbery.
PROCEDURE
Appellant’s first trial ended in a mistrial after one of the jurors wrote a note to the prosecutor requesting career advice over dinner. Following a second trial in 1998, a jury convicted appellant of three robberies and felony evasion and found that, on each count, a principal was armed with a firearm. The court found appellant had suffered two prior robbery convictions within the meaning of the “Three Strikes” law.
Appellant, who had been released on bail, did not appear for the jury verdict and was not located until November 2008. His sentencing hearing occurred in 2009. Prior to sentencing, the court denied appellant’s motion for a new trial, both because it was untimely and on its merits. The court then sentenced appellant to prison for 108 years to life. This appeal followed.
DISCUSSION
Appellant argues (1) the court erred in denying his new trial motion because it was untimely; (2) the court should have granted his new trial motion on the grounds that he was not permitted the counsel of his choice; (3) the court applied the incorrect burden of proof in finding appellant committed the prior robberies; (4) the prosecutor committed misconduct when he elicited testimony about appellant’s refusal to give a statement to officers; and (5) hearsay evidence was improperly admitted. We discuss appellant’s arguments seriatim and find no prejudicial error.
1. New Trial Motion
The trial court denied appellant’s new trial motion procedurally because it was untimely and substantively on the merits. The court found “[o]ne can’t run and play hide-and-go-seek with the authorities” and hope that if he is caught he can “‘bring my motions then, and maybe they can reconstruct the trial. And maybe the court reporters won’t have retired. And maybe the judge won’t be dead.’ [¶]... [¶] [D]ue to the defendant’s actions, the court has been unable to render a judgment in his case.... I suggest that by waiting for over a decade to raise points that he was aware of, according to him, at the outset he has forfeited his right to complain.” The court continued: “Now assuming that the court is incorrect on that.... [¶]... [¶]... we’re going to go forward, and I’m going to give you additional rulings on the balance of your arguments.”
As appellant points out, in People v. Braxton (2004) 34 Cal.4th 798, the California Supreme Court held that a motion for a new trial made before judgment was timely. That case did not involve a defendant who avoided judgment for 10 years by absconding. But we need not decide if Braxton is applicable in this context. Even if the court erred in finding it untimely, the error could not have prejudiced appellant because the court considered each ground on its merits and concluded that none of the issues raised by appellant had merit.
2. Appellant’s Request to Change Counsel
Prior to his second trial, appellant expressed dissatisfaction with his attorneys. The court permitted appellant to substitute another attorney but refused to grant a continuance. A sealed reporter’s transcript memorializing the conversation is not available because the court reporter destroyed her notes after 10 years. A notation in the clerk’s transcript states that the court denied appellant’s “Marsden motion.” (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) Appellant argues that the hearing should have been pursuant to People v. Ortiz (1990) 51 Cal.3d 975, not Marsden because he had privately retained counsel. Appellant raised the same claim of error in his new trial motion, which was heard at the sentencing hearing.
At the sentencing hearing, the trial court found the notation “Marsden motion” in the clerk’s transcript was insufficient to show that the trial court applied an incorrect standard. The court indicated that “sometimes a motion may be denominated by an erroneous title, yet the ruling on that motion might be absolutely correct.” The court further noted that the reason no transcript was available was that appellant absconded. Appellant does not challenge the findings that the People v. Ortiz standard may have been applied, and we agree with that conclusion.
Appellant is correct insofar as the trial court should have considered his motion under the standard announced in People v. Ortiz. Appellant, however, cannot show the trial court failed to apply that standard. The label “Marsden motion” describes appellant’s motion, not the standard applied by the trial court in evaluating his motion. No transcript is available of the hearing, and its absence is the result solely of appellant’s conduct. No error is shown on this record.
Under the People v. Ortiz standard: “The right to discharge retained counsel is based on ‘“necessity in view both of the delicate and confidential nature of the relation between [attorney and client], and of the evil engendered by friction or distrust.”’ [Citation.] In order to ensure effective assistance of counsel, a nonindigent defendant is accorded the right to discharge his retained attorney.” (People v. Ortiz, supra, 51 Cal.3d at p. 983.) However, the court may deny a motion if it results in “significant prejudice” to the defendant or will disrupt the orderly process of justice. (Ibid.)
3. Burden of Proof
Appellant argues that the trial court applied an incorrect burden of proof when it found his prior robbery offenses true. In his brief, appellant purports to quote a colloquy between the court and the attorneys, which according to appellant demonstrates the trial court applied an incorrect standard. Appellant provides no citation to the record, and the colloquy he purports to quote is not included in our record. Therefore, appellant demonstrates no error.
During the first trial, appellant testified and admitted three prior convictions. In the current trial, the court determined that if appellant testified, his robbery convictions would be sanitized, but his grand theft and possession of illegal substance offenses would be admissible. Therefore, the record indicates that appellant was actually convicted of the alleged priors.
4. Prosecutorial Misconduct
Appellant argues the prosecutor engaged in misconduct by violating his Fifth Amendment right to not testify against himself. We first provide additional background and then explain why appellant’s argument lacks merit.
As the Attorney General argues, this contention is technically forfeited because appellant failed to raise it in the trial court. (People v. Hill (1998) 17 Cal.4th 800, 820 [“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety’”].)
A. Background
Detective Mario Estrada testified that appellant told officers he “was asleep” the morning of the robbery. On cross-examination, defense counsel asked Estrada whether he asked any followup questions such as when appellant was sleeping or whether he had driven his grandmother (meaning great-grandmother) to the hospital. Then on redirect, Estrada clarified that he could not ask questions because appellant had invoked his right to an attorney. It is the latter testimony that forms the basis of appellant’s claim of error on appeal.
B. Analysis
Generally, Griffin v. California (1965) 380 U.S. 609, 615, prohibits comment by the prosecution on an accused’s silence at trial. Additionally, Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) prohibits a prosecutor from using a defendant’s invocation of his right to remain silent following an arrest as evidence of guilt. (People v. Champion (2005) 134 Cal.App.4th 1440, 1147-1448.) However, “[a] violation of due process does not occur where the prosecutor’s reference to defendant’s postarrest silence constitutes a fair response to defendant’s claim or a fair comment on the evidence.” (Id. at p.1448.) Griffin’s and Doyle’s “‘protection of the right to remain silent is a “shield,” not a “sword” that can be used to “cut off the prosecution’s ‘fair response’ to the evidence or argument of the defendant.” [Citation.] Questions or argument suggesting that the defendant did not have a fair opportunity to explain his innocence can open the door to evidence and comment on his silence. [Citation.]’” (People v. Champion, at p. 1448, quoting People v. Lewis (2004) 117 Cal.App.4th 246, 257.)
Here, the prosecutor’s question was a fair response to defense counsel’s suggestion that Detective Estrada had not properly asked appellant additional questions. The prosecutor was not improperly commenting on appellant’s invocation of his right to remain silent, and appellant has not demonstrated any misconduct. Even assuming misconduct occurred, appellant does not claim any prejudice resulted from it and therefore does not show reversal would be warranted. (See People v. Earp (1999) 20 Cal.4th 826, 857-858 [declining to reverse conviction when Doyle error found nonprejudicial under federal beyond a reasonable doubt standard].) In any event, the brief reference to appellant’s request for an attorney could not have affected the jury verdict as the evidence against appellant, including his possession of the getaway vehicle, was overwhelming.
5. Hearsay
Appellant argues that the court erred in allowing the prosecutor to impeach appellant’s mother with testimony given by appellant’s great-grandmother in the first trial. We agree. Specifically, appellant’s great-grandmother testified in the first trial that appellant did not drive her to the hospital as testified to by appellant’s mother and sister. The evidence was hearsay and was not admissible under any exception to the hearsay rule.
Appellant did not suffer prejudice from the erroneous admission of the evidence and he does not contend otherwise. Although appellant’s alibi was important to the defense, appellant’s counsel substantially discredited appellant’s great-grandmother’s hearsay statements by pointing out that she had Alzheimer’s disease and could not even remember the name of her granddaughter. Moreover, as mentioned above, the evidence linking appellant to the driver was overwhelming. In addition to the eyewitness identifications, appellant was in possession of the car used to get away from the scene. The license plate number that Ben and Eddie wrote down was identical to the one on the car appellant brought to the rental agency. Appellant does not show it was reasonably probable that he would have obtained a more favorable outcome had the evidence been excluded. (People v. Fudge (1994) 7 Cal.4th 1075, 1103 [evidentiary error under state rules of evidence is evaluated under “standard of review... announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension”].)
DISPOSITION
The judgment is affirmed.
We concur: BIGELOW, P.J., RUBIN, J.