Opinion
H042491
08-18-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY COLLINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1363363)
Defendant Mark Anthony Collins appeals from a judgment of conviction of carjacking (Pen. Code, § 215) and second degree robbery (§§ 211-212.5, subd. (c)) following a jury trial. As to each crime, the jury found true the associated allegation that defendant personally used a firearm in violation of section 12022.53, subdivision (b). The trial court sentenced defendant to a total term of 13 years.
All further statutory references are to the Penal Code unless otherwise stated.
On the second day of jury selection, defendant successfully sought to replace his appointed counsel with retained counsel. On appeal, defendant contends that (1) the trial court erred by denying his new counsel a continuance to prepare for trial, (2) the evidence was insufficient to prove the specific intent element of robbery, and (3) his newly retained counsel rendered ineffective assistance.
We reject each of defendant's contentions. According, we will affirm the judgment.
I
Procedural History
On January 16, 2014, an information was filed against defendant. A first amended information was filed on April 8, 2014. It charged defendant with two offenses occurring on May 9, 2013: carjacking (§ 215) (count 1) and second degree robbery (§§ 211-212.5, subd. (c)) (count 2). As to each offense, the amended information alleged that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c).
On April 7, 2014, the court heard and denied a Marsden motion for appointment of substitute counsel. (See People v. Marsden (1970) 2 Cal.3d 118.) The process of jury selection began on April 8, 2014.
On April 9, 2014, the parties reached a plea agreement. The information was amended to allege that defendant personally used a firearm in the commission of the charged carjacking (count 1) in violation of section 12022.5, subdivision (a), and to add count 3, a violation of section 245, subdivision (a)(4) (assault by any means of force likely to produce great bodily injury). In exchange for a 10-year prison term and the dismissal of count 2 at the time of sentencing, defendant pleaded no contest to count 1, admitted the personal use of a firearm allegation (§ 12022.5, subd. (a)) as to count 1, and pleaded no contest to count 3. The matter was continued to May 30, 2014 for sentencing.
On May 30, 2014, the court heard and denied a Marsden motion. The matter was continued to June 27, 2014.
Defendant moved to withdraw his plea (§ 1018). On September 5, 2014, the trial court granted the motion and vacated its previous order allowing amendment of the first amended information.
On December 16, 2014, Deputy Public Defender (DPD) Heather Harris filed motions in limine on defendant's behalf; the prosecution also filed motions in limine. The court made rulings on the motions. On December 17, 2014, the prosecution filed its proposed witness list. DPD Harris orally provided the name of one potential witness, Michael S.
Jury selection began for the second time on December 29, 2014.
On December 30, 2014, DPD Harris informed the court that defendant's family had retained private counsel, Daniel Everett, to represent defendant. Everett initially told the court that he had the preliminary hearing transcript and the police report and said, "With the holiday, I do not see me taking a large amount of time to be ready for trial." The trial court told Everett that they were concluding jury selection that day and proceeding to trial on the following Monday (January 5, 2015) and that it was not inclined to continue the matter in the event of a substitution of counsel. Defendant made a Marsden motion, and, after a hearing, the court denied the motion.
Everett repeatedly told the trial court that he was prepared to proceed with trial that day. The court stated that defendant's untimely request for substitution of counsel was denied unless Everett was prepared to proceed that day. When the court again asked Everett whether he was ready to proceed, Everett responded, "I understand that you've brought in a jury during the holiday break, but I think that my client's Sixth Amendment right to counsel would dictate a brief continuance. With that said, Your Honor, I am ready to proceed." Defendant confirmed that he wished to relieve his appointed counsel and substitute Everett as his counsel of record. In speaking with defendant, the court reiterated that his untimely request for substitution of counsel would be granted "if your attorney is ready to proceed," given that they were in the middle of trial. The court granted the motion based on Everett's representation that he was ready to proceed with trial.
The "erroneous deprivation of the right to counsel of choice, 'with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as "structural error." ' [Citation.]" (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150.)
After the trial, the jury found defendant guilty of carjacking (§ 215) and second degree robbery (§§ 211-212.5, subd. (c)). As to both counts, the jury found true that defendant personally used a firearm in commission of the offense (§ 12022.53, subd. (b)) and found not true that defendant personally and intentionally discharged a firearm in the commission of the offense (§ 12022.53, subd. (c)).
Following the jury verdicts, the trial court sentenced defendant to a 13-year term of imprisonment, consisting of a lower, three-year term on the carjacking conviction and a consecutive 10-year enhancement term for personal use of a firearm in the commission of that offense. (§§ 215, subd. (b); 12022.53, subd. (b).) The court stayed punishment on the robbery conviction and the associated enhancement for personal use of a firearm in the commission of that offense.
II
Evidence
Prosecution's Case in Chief
On May 9, 2013, sometime before 1:00 a.m., Jeff S. was working on his computer at home, a top-floor unit of a fourplex on Delaware Avenue in the City of San Jose. An alley with speed bumps ran between Delaware Avenue and Blossom Hill Road, and it provided access to the carports located in the rear of the apartments. It was "dead quiet" that night, and, through an open window that overlooked the alley, Jeff heard scuffling outside. Jeff heard muffled grunts and groans that sounded like two people fighting. He went to the front door of his unit, which opened onto a balcony and faced the alley, and looked out.
Jeff saw two people grunting and groaning and rolling around on the concrete next to a car, which was in the middle of the alley with its door open. He could not see the individuals' faces. Jeff did not see anyone else around. The car's taillights and headlights were on, and the car was facing toward the alley's dead end. It was dark outside, but each carport had a "pretty bright light." He went back in and returned to his work. Then Jeff heard two sounds, which sounded like gunshots.
Jeff went out the front door of his unit and looked again; he again saw only two people. At this point, Jeff definitely was wearing his glasses that he used for driving. He saw two males get up and separate. One male walked around the vehicle and got in on the driver's side. As he did so, the car's lights illuminated a silhouette of a gun in his right hand. He drove toward the alley's dead end, made a U-turn, and then drove away at a minimum of 25 to 30 miles per hour. Jeff thought he heard another gunshot. The car turned left at the end of the alley, which ran into Playa Del Rey. At trial, Jeff testified that he did not think the car was a BMW and that he thought the car had two doors.
Jeff observed the remaining male, later identified as Tony, standing there. Tony began to walk in the direction of Jeff's fourplex, but he turned around, walked up the stairs of a fourplex across the alley, and knocked on the door of an upper unit, which faced the alley and had a Blossom Hill Road address. Although Jeff did not know Tony, Jeff had previously seen Tony go into and come out of that unit, and he had seen Tony "stay there for a length of time." When nobody answered, Tony went downstairs and continued walking.
Jeff, who was concerned that Tony might be hurt, went downstairs to make contact with Tony. Tony did not appear drunk to Jeff. Tony appeared upset and scared to Jeff because Tony was talking quickly and was agitated, Tony had bloody knuckles and knees, and he was "scratched up." Jeff asked Tony whether he was okay. Jeff then asked, "Did I hear a gun?" Tony answered yes. Tony told Jeff that his car had been stolen.
Jeff suggested that Tony call the "cops"; Tony indicated that he did not want to because he was concerned for his safety. Tony said, "They'll get me." Jeff urged him to call police. Tony indicated that he could not speak with police in that location because too many people knew him, but he was willing to speak with police somewhere else. Tony suggested a small office complex on the corner of Playa Del Rey and Blossom Hill, which was a short walk away. Tony told Jeff that his name was Tony U. Tony walked off.
At approximately 1:00 a.m. on May 9, 2013, Jeff called 911. Jeff told the 911 operator that he had seen two males arguing and rolling around on the pavement. Jeff said that he heard a gun go off a couple of times, and he indicated that, when he looked out again, he saw an old, little, white foreign car leaving. Jeff told the operator that he had spoken with someone identifying himself as Tony U., who said that his car had just been stolen. Jeff reported that Tony's knuckles were bloody and "all banged up." Jeff reported that Tony was not willing to speak to the police where the incident occurred, but Tony was willing to talk to the police over by the dentists' offices on the corner of Blossom Hill and Playa del Rey.
F.U., who went by the name of Tony, was 24 years old in May 2013. According to Tony, on the evening of May 8, 2013, he was "hanging out" with Audrey, a friend whom Tony had met through her older brother. Audrey lived in a fourplex on Blossom Hill Road with other family members. That evening, Tony picked her up in his car in front of her apartment on Blossom Hill Road.
Tony had a 2000 silver, four-door BMW 328 model, which he had purchased for $2,000 and fixed up. He was very proud of the car, and he "[c]herished it." Tony and his mother were both listed as the car's registered owners while he was paying it off.
Tony and Audrey went grocery shopping that evening. They smoked cigarettes in front of the store, and then Tony drove Audrey to the apartment of Audrey's boyfriend, Ray, who lived in an identical fourplex, two buildings away from Audrey's fourplex. Both Ray's unit and Audrey's unit faced the alley. Tony and Audrey dropped the groceries off at Ray's apartment.
Tony then drove Audrey back to her apartment, using the alley. He parked in the middle of the alley with the car facing toward the alley's dead end. Tony and Audrey went inside her unit, and they watched movies and drank shots of rum and mixed drinks. At trial, he estimated that he drank "not in excess of over eight shots with mixed drinks" afterward. He admitted that his statement to the defense investigator that he had approximately two and a half drinks on the evening of the incident had been untrue. He stated that his preliminary hearing testimony that he had 10 to 12 shots that evening also had been untrue.
At some point on the night of the incident, Tony looked out the window of Audrey's room and noticed that his car's interior light was on. He went downstairs to turn it off. His car was very messy, and he decided to clean the car. He inserted the keys into the ignition, turned on all the lights, listened to music, and began "looking through papers" and "sorting things out." Nobody else was around.
While sitting in the driver's seat with the door slightly ajar, Tony heard "a soft 'hey.' " He saw a black shadowy figure, and he was then struck in the face two to three times with something that felt and looked like the butt of a metal gun. Tony described his assailant as wearing a long, heavy, dark blue pea coat. At trial, Tony identified his assailant as defendant.
Tony knew defendant because defendant was a cousin of a former roommate with whom Tony had lived for six to eight months, and Tony and defendant had previously met on multiple social occasions such as barbecues or parties. Tony had smoked marijuana with defendant, and they had had drinks. Tony and defendant had argued over girls, drinking in the home, and "little guy stuff." Defendant had "very often" worn a pea coat like the one he was wearing at the time of the incident on May 9, 2013. At the time of that incident, Tony did not know defendant's last name.
During the incident, defendant demanded Tony's valuables. Tony grabbed his wallet out of the glove compartment and handed it to defendant; defendant struck Tony "once or twice more." Tony's wallet, which was a gift from his sister, was made from a Twix wrapper. Defendant threw it back at Tony, said, "What is this? What is this? This piece of shit is nothing," and hit Tony again. Tony was able to see that defendant had a gun.
At some point, defendant took a bullet out of the gun and showed it to Tony, saying, "You see this? You see this?" Defendant took that display as a threat.
Defendant demanded that Tony open the vehicle's trunk, and Tony pushed a button inside the vehicle to unlock the trunk. Defendant was referring to Tony as "white boy" or "Tone," which was short for Tony. Defendant's use of the nickname "Tone" was one of the clues that alerted Tony that his assailant was defendant.
Tony exited his vehicle, went to the trunk, and opened it. Defendant rummaged through the trunk with his left hand while holding the gun with his right hand. The trunk contained a work laptop that Tony used in his security job. Tony told defendant that the laptop could be traced, which was not true, and that it was not worth taking. Defendant did not take the laptop.
When defendant took his eyes off Tony and lowered the gun slightly, Tony attacked defendant by grabbing his jacket with one hand and trying to hold down defendant's arm with the other hand. Defendant struck Tony in the face with his left fist. Tony and defendant began fighting.
At trial, Tony testified that the fight started near the trunk. But Tony acknowledged that he had previously stated that he got out of the driver's seat and tackled defendant and that "the engagement began near the driver's side door."
At some point, defendant went to the ground and hit his head. From that position, defendant pointed his gun at Tony, and Tony threw himself at defendant and tried to prevent defendant from pointing the gun in his direction. Tony testified that he never heard a gunshot.
According to Tony, while defendant and he were struggling and rolling around on the ground, his right hand was pinned under defendant, against the concrete. The struggle moved toward the passenger side of the vehicle. They separated and stood up. Defendant pointed the gun at Tony, saying, "I'm taking your car. I'm taking your car." Tony responded, "No, you're not. No you're not." Tony testified that when defendant motioned at him with the gun, he realized that it was not worth resisting.
With the gun pointed at Tony, defendant went to the driver's side of the car and got in. The car keys were inside. Defendant made a three-point turn, accelerated, and quickly drove away toward Playa Del Rey. The car's suspension repeatedly hit the alley's speed bumps. The car turned left onto Playa Del Rey. Tony had not given defendant permission to drive his car away from the scene. Defendant had never been in Tony's car before.
Tony went up to Audrey's apartment and knocked on the door. No one answered, and the door was locked.
At trial, Tony indicated that Ray had been at Audrey's apartment at the beginning of the evening. But Tony did not know whether Ray was still there when he knocked on the door after being attacked and no one answered. Tony acknowledged that he had talked to police three times and testified in court before, but he had never previously mentioned that Ray was in Audrey's apartment that evening. He explained that he did not think that information had been important.
After no one answered his knock, Tony went downstairs and encountered a man, who asked him whether he was okay; Tony responded, "[N]o, no." The man asked whether Tony wanted him to call the police. Tony said that he did not want the police to come to that location. Tony was afraid that, if anyone saw him speaking to police, there might be retribution toward him or his family. Tony was very scared. Tony told the man to call the police, but he said, "[D]on't have them come here. I don't want them here." He indicated that he was willing to meet the police at a nearby dentist office.
Tony was very motivated to retrieve his car. He could still hear the sounds of his car in the vicinity. It was a very quiet night, and he followed the sounds of his car, such as the "rev of the engine," its acceleration and deceleration, and the screeching of its tires. He went through the neighborhood, and, as he got closer to his car, he also heard music. Tony eventually found his car abandoned in the middle of Playa Del Rey. The vehicle's driver-side door was open, its engine was running, its lights were on, and music was playing. He looked around very quickly and saw no one in or around the vehicle. Everything, including his wallet, was there. Tony darted into his car and drove it toward Blossom Hill Road.
Tony encountered "half a dozen squad cars" and "uniformed officers all over the street." Traffic was being waved through the intersection of Playa Del Rey and Blossom Hill Road. Although he tried to get the officers' attention by honking his horn, flashing his lights, and yelling, he was told to move on. He crossed the intersection, drove to the rear parking lot of the dentist office, and parked. After getting out of his car, Tony made contact with, and talked to, police.
As the result of the blows to his mouth, Tony lost half of one tooth and another tooth was cracked. He needed stitches in his gum. The knuckles of Tony's hand, which had been trapped under defendant, were scraped and injured. Tony thought that he had suffered a concussion based upon his prior experience with a concussion, but he did not seek any treatment.
Although Tony could not remember the gun discharging while defendant and he were wrestling on the ground, his car's rear bumper sustained damage, and Tony later realized it was a bullet hole. According to Tony, he never had sole possession of the gun, and he never pulled the gun's trigger.
There were multiple discrepancies between Tony's trial testimony and prior statements that he had made. He explained that he had misstated the facts for his family's and his own safety.
Tony initially described his assailant as a black, male adult who was approximately 5 feet, 7 inches tall with a muscular build and Afro-style hair that was a half-inch long. Tony had told police that the assailant was wearing a gunmetal-gray "muscular shirt" and that he had a black sweater tied around his waist. At trial, Tony testified that this description was completely false except for the fact that his attacker was African-American. He said that he had misled police because he was scared to identify defendant.
At trial, Tony admitted that his later statements to police and to a defense investigator that the assailant was wearing a mask were also untrue. Tony said that he had made those statements because he was worried about his safety and the safety of his grandparents, mother, and sisters. He gave the police a telephone number for Audrey, which turned out to be incorrect.
Tony admitted that he had initially falsely stated that the incident took place when he went down to fetch groceries from his car. He admitted that he had exaggerated when he told police that he had been hit 10 to 15 times.
When Detective Varela indicated that police had fingerprints and showed Tony a picture of defendant during a later interview, Tony finally admitted that he knew defendant. Even after Tony had admitted to police that he knew defendant, Tony falsely stated that he had not seen defendant for two years. Tony had actually seen defendant a couple of months before the incident when he had driven past him on the street. Tony explained that he had lied because he did not want to put himself in danger.
At one point at trial, Tony remembered that he had previously testified at the preliminary hearing that defendant had not gone to the trunk. At trial, Tony testified that to the best of his recollection, defendant had in fact gone to the trunk.
In 2008 Tony was convicted of misdemeanor petty theft (former §§ 484, 488). In 2009, he was convicted of a misdemeanor battery of a correctional officer by "gassing" (§§ 242, 243.9).
Tony apparently had spit on a corrections officer while being booked in an unrelated matter. Section 243.9 makes it a crime to commit "a battery by gassing upon the person of any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or employee of the local detention facility." (§ 243.9, subd. (a).) For purposes of section 243.9, "gassing" is defined "intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes." (§ 243.9, subd. (b).)
Cuahutemoc Mendoza, a San Jose police officer, was on patrol on May 9, 2013, and at approximately 1:00 a.m. on that date, he responded to a call concerning "shots fired." The officer drove to the parking lot of a medical office building; Tony subsequently drove up in a silver BMW sedan. Tony was "very frantic" and got out of the vehicle. After learning that Tony was the alleged victim, Officer Mendoza spoke to Tony. Tony had abrasions on his hands and facial bumps and bruises; he complained of pain in the back of his head.
Officer Mendoza did not see any signs or symptoms that Tony had used alcohol or was intoxicated. Tony was not subjected to preliminary alcohol screening or field sobriety tests. The officers were not concerned that he might be too drunk to drive.
Officer Mendoza obtained a description of the suspect from Tony. A description of the reportedly stolen vehicle, which had been given out by police communications, was cancelled. Tony's car was searched, but no contraband was found. The officer's interview of Tony provided no indication that the fight arose from "some sort of drug buy gone wrong." Blood was found inside the car and on its exterior. There was "a possible gunshot strike to the rear bumper." Tony was one of the two registered owners of the vehicle. After interviewing Tony, Officer Mendoza contacted Jeff, the reporting party, at his residence and interviewed him.
Mathew Brackett, a San Jose police officer, responded to a call regarding shots fired or carjacking at approximately 1:00 a.m. on May 9, 2013. He went to an office building's parking lot off Blossom Hill. He filled out a CHP form used to report stolen vehicles. Officer Brackett did not speak to Tony, and he was not involved in the search of the vehicle. At trial, the officer recalled that the vehicle was released to the registered owner, who was at the scene.
Officer Brackett then went into the neighborhood off Playa Del Rey and looked for evidence. In the area of the alley near Audrey's fourplex, the officer found two unspent bullets with intact casings, including a .9 millimeter Winchester round.
Martin Gonzalez, a San Jose police officer, was on duty at approximately 1:00 a.m. on May 9, 2013. He responded to a dental or business office off Blossom Hill Road near Playa Del Rey, and he assisted with an investigation into an alleged carjacking. He took multiple pictures of Tony and a silver four-door BMW sedan, which were received into evidence at trial.
Officer Gonzalez photographed and swabbed a sample of suspected blood evidence on the BMV's bumper. Photographs of the right corner of the BMW's rear bumper showed a half-inch hole consistent with a "9 millimeter" bullet. The officer photographed and collected samples of apparent blood evidence on the BMW's ceiling. He lifted a latent fingerprint from the driver's side door. The officer collected a blood sample from Tony.
Cesar Verceluz, a latent fingerprint examiner employed by the San Jose Police Department, testified as an expert in the area of latent print identification, examination, and comparison. Verceluz determined that a latent print recovered by Officer Gonzalez matched defendant's right middle finger.
At approximately 12:45 p.m. on June 23, 2013, San Jose Police Officer Patrick Ward made contact with defendant at an address on Warring Drive. During this contact, a firearm was located in the bushes next to the fence line in front of that address. It was a Ruger .9 millimeter handgun, it had a bullet in its chamber, and there were eight bullets in its magazine.
San Jose Police Officer Rafael Varela assisted in the investigation of a suspected carjacking that occurred on May 9, 2013. On June 11, 2013, Officer Varela obtained buccal swabs from Tony for use as sample DNA references.
Officer Varela attempted to locate Audrey, but he was told that she had moved out; he did not make contact with her. Defendant's DNA was found only on the outside of Tony's vehicle. Officer Varela testified that an unspent round or live bullet was found at the back of Tony's vehicle. No shell casings were located.
At some point, Officer Varela told Tony that if he continued lying, he could be charged with filing a false police report. According to the officer, it was very common for people to hold back information because they are afraid of retaliation.
On August 20, 2013, Officer Varela conducted an interview of defendant. At that time, the officer collected buccal swabs from defendant. A video of the interview was played for the jury.
Early in the interview, defendant acknowledged that he had had an encounter with Tony, who had previously lived with his cousin, in the alley near Audrey's home at about midnight or 12:30 a.m. during the previous May. Defendant indicated that they both had been intoxicated.
During the interview with police, defendant indicated that Tony and he had known each other for a number of years and that they had fought on four occasions. Defendant claimed that one of those fights occurred three days before their encounter in the alley, after Tony had walked in on defendant receiving oral sex from Audrey.
Defendant told police that, on the night of the May encounter in the alley, Tony was driving a "Silver Beemer." Although he at first told a different story involving another vehicle and other persons, defendant eventually admitted that he had made up "the whole vehicle showing up" scenario, and he apologized for the "fake ass story." Defendant admitted that Tony and he had had an altercation that night, that it had been "a pretty serious fight," and that it had gotten "a little ugly." He subsequently acknowledged that Tony and he had wrestled over a gun, and he claimed that the gun had gone off when they hit the ground. They had been on the ground fighting for the gun.
During the interview, defendant repeatedly indicated that someone named Mike was also present on the night of the May incident in the alley. According to defendant, Mike's truck, which defendant variously described as black, blue, or white, was also there. But defendant indicated that he did not know whether Mike had watched it all. Defendant did not know Mike's last name or have a cell phone number for him. At various points, defendant indicated that Mike was not a "tweaker," that Mike was "[a] cluck, a dope fiend, [a] tweaker," or that Mike was a "meth addict."
Defendant ultimately admitted during the interview that he had been carrying a "9-millimeter" "P85 Ruger" gun in the left, inside pocket of his coat on the night of the incident. Defendant admitted to punching Tony. During the interview, defendant indicated that he was right handed and that his right hand was his "powerful hand."
During the interview, defendant indicated that he had once driven Tony's car sometime before February 2013, and at one point, he conceded that he had "[m]aybe even sat in the driver's seat" of Tony's car on the night in question. He later denied sitting down in the seat, but he indicated that he had used his left hand to brace himself on the frame of the car and grabbed the steering wheel with his right hand. Defendant maintained, however, that he had not robbed Tony or taken off with Tony's car. Defendant claimed that Tony and he smoked "a blunt" (marijuana) together approximately two weeks after the incident.
During the interview, defendant handwrote a letter "to whom it may concern," which he signed and dated August 20, 2013. In the letter, he stated that he knew what he had done was wrong and that there would be consequences for his actions. He also said that he had begun "as of now to rehabilitate" himself and asked for "the opportunity to make what's wrong to be right."
Craig Lee performed DNA analysis as a criminalist in the forensic biology unit of the Santa Clara County District Attorney's crime laboratory. He testified as an expert in the area of forensic DNA analysis. He analyzed a red brown stained swab collected from the right rear bumper of a 2000 BMW, and his analysis disclosed "a single source profile from an unknown male individual" that did not match Tony's reference sample. Based upon defendant's reference sample, Lee ultimately determined that defendant was the source of that DNA obtained from the rear bumper. He also analyzed a red brown stained swab collected from the vehicle's ceiling between the visors, and the analysis revealed that Tony was source of that profile. Lee found a partial DNA profile on two .9 millimeter rounds, from which he could only conclude that Tony was not a source. He did not find defendant's DNA on any of the tested swabs taken from the BMV's interior.
Megan Shaw worked as a criminalist in the firearms section of the crime laboratory. She testified as an expert in firearm examination and inspection. She inspected and test-fired the .9 millimeter Ruger P-85, which had been seized in this case. The gun functioned normally.
Defense Case
Michael S. lived near Playa Del Rey, and at approximately 1:00 a.m. on May 9, 2013, Michael had parked his 2008 GMC Sierra truck in the alley that runs between Blossom Hill Road and Delaware Avenue near the carport for Audrey's home. Vehicles could enter the alley from Playa Del Rey Avenue; the other end of the alley was a dead end.
On that night, Michael was smoking a cigarette, drinking, and waiting for Audrey, whom he considered a friend, to show up. Tony, another friend of Audrey, pulled up in his BMW and parked near Michael's truck. Michael had previously met Tony at Audrey's home; he had known Tony for nine months to a year. At trial, Michael identified a photograph of a male with facial abrasions as Tony, but Michael indicated that Tony did not have any facial abrasions when they interacted on May 9, 2013.
According to Michael, he had already determined that Audrey was not at home before Tony arrived. According to Michael, when Tony showed up, Tony asked, "Hey, where's Audrey," and Michael had responded, "I don't know. She's supposed to be here, but she's not, so . . ." Tony was "hanging out," drinking, smoking a cigarette, and waiting for Audrey as was he. It appeared to Michael that Tony was intoxicated.
After 15 to 20 minutes at most, defendant and another person walked diagonally across the alleyway toward Michael and Tony. Michael had previously seen defendant around the neighborhood. The second person did not stop, but defendant said something like, "Hey, what's up." Someone said, "Look who it is." Defendant and Tony began bumping, taunting, and circling each other. It was Michael's recollection that Tony was taller than defendant. Michael had never before seen Tony and defendant "go at it." At trial, Michael recalled that after watching for a few minutes, he became bored and left the scene.
At trial, Michael identified Ray as Audrey's boyfriend and stated that Ray was often over at Audrey's home. Michael testified that as he was driving out of the alley, he saw Ray driving into the alley in a little white car, perhaps a Toyota Celica or Honda Accord. Ray was in the car by himself. Michael acknowledged that he had separately spoken to the defense investigator and an investigator from the District Attorney's Office in 2014 and that he had told them that he entered his truck and left the scene before observing any events related to the incident that night. Michael had not told the investigators that he saw a car driving into the alley. He remembered saying that he did not see defendant pull a gun or hear any gunshots.
Michael had been under the influence of methamphetamine at the time of the May 9, 2013 incident, and his memory from that night was cloudy. Michael, who was born in 1970, had been convicted of a felony burglary in 1985, a felony robbery and a burglary in 1991, felony forgery in 1993, and felony possession of stolen property in 2008. Michael denied that he had been convicted of providing false information to a police officer (§ 148.9) in 1999 and 2009, but indicated that it was "possible" that he was convicted of that offense in 2005. Michael denied that he had been convicted of being an accessory to burglary in 2014.
After the May 9, 2013 incident, Michael was told that Audrey had moved to Arizona; he gave that information to the prosecutor's investigator. Michael indicated that he had spoken with Everett the previous Friday, but they did not talk about his upcoming testimony.
Kenton Wong, a senior forensic scientist at Forensic Analytical Sciences, a full-service, independent crime laboratory, testified as an expert in the field of forensic toxicology. He testified that alcohol is a central nervous system depressant and that as an individual's blood alcohol level rises, his or her "brain is only able to capture and encode portions of events and information." The most common type of "blackout" occurs where an individual is awake and conscious, but the individual's brain is retaining only fragmentary memory. It is also called a blackout when an individual is rendered unconscious by alcohol.
Wong testified that, in addition to profoundly affecting both short-term and long-term memory, alcohol slows the functioning of the human brain so information is processed less efficiently and profoundly affects a person's judgment. As an individual's impairment and level of intoxication rise, the individual is more apt to say and do things he or she would not normally do in a sober state. The objective signs and symptoms of alcohol intoxication include unsteady gait, body sway, impairment of fine and large muscle motor groups, and balance. Adrenaline has no effect on a person's "ability to be sober."
According to Wong, some people may be too impaired to drive even when they have a blood alcohol level below the legal limit of 0.08. Alcohol impairs a person's ability to drive in multiple ways, including the person's ability to scan the horizon and identify what is happening, process and understand information, make predictions of things that may happen, determine actions that should be taken, and physically perform those actions.
In Wong's opinion, a 185-pound male who consumed approximately 16 drinks, consisting of 12 shots and two mixed drinks each containing the alcohol equivalent to two shots, between midnight and 1:15 a.m. would have a blood alcohol level of 0.25, more than three times the legal limit of 0.08. If he consumed approximately 14 drinks, he would have a blood alcohol level of 0.22, almost three times the legal limit of 0.08. Alcohol is metabolized or burned off at the rate of approximately 0.02 per hour.
Prosecution's Rebuttal
After the defense rested, the People did not present any further evidence.
III
Discussion
A. No Erroneous Denial of a Defense Request for a Continuance
Defendant argues that once the trial court allowed Everett to substitute in as counsel of record, it abused its discretion by not giving Everett more time to prepare for trial. Defendant claims that his due process rights were violated by requiring a choice "between an attorney he clearly did not trust and an attorney who was not prepared." He maintains that the trial court erred by denying a continuance to defendant's new counsel.
Everett was not yet defendant's counsel of record on December 30, 2014, when he inquired whether the court was inclined to grant a continuance. The court answered no. In fact, the trial court made it abundantly clear that it was willing to permit the substitution of counsel only if Everett was prepared to continue with jury selection and proceed to trial. Everett repeatedly represented that he was prepared to go forward. After substituting in as counsel of record, Everett did not request a continuance to allow additional time to prepare for trial.
Where defense counsel brings no motion for a continuance, there is no ruling and hence no abuse of discretion. Insofar as defendant might be suggesting that the trial court had a sua sponte duty to grant a continuance to allow Everett additional time to prepare for trial after he substituted in as counsel of record, defendant offers no persuasive authority. Moreover, the trial court acted well within its discretion in not further delaying the proceedings since the court had already made pre-trial rulings, jury selection was already underway (for the second time), the trial was scheduled to begin with DPD Harris representing defendant, and the trial court had conditioned the substitution of counsel on Everett's readiness to proceed with jury selection and trial. (See People v. Courts (1985) 37 Cal.3d 784, 790-791 (Courts) ["A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' "]; People v. Haskett (1982) 30 Cal.3d 841, 852 [trial court did not abuse its discretion by denying a continuance for trial preparation by defendant's newly retained attorney who had substituted in for defendant's originally retained attorney at the "eleventh hour"]; cf. People v. Espinoza (2016) 1 Cal.5th 61, 80 (Espinoza) ["A trial court may . . . condition the grant of an untimely Faretta motion [(see Faretta v. California (1975) 422 U.S. 806)] on a defendant's ability to immediately proceed to trial."]; People v. Valdez (2004) 32 Cal.4th 73, 103 [" 'Although a necessary continuance must be granted if a motion for self-representation is granted, it is also established that a midtrial Faretta motion may be denied on the ground that delay or a continuance would be required' "].)
Section 1050, subdivision (b), provides: "To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary and (2) within two court days of learning that he or she has a conflict in the scheduling of any court hearing, including a trial, an attorney shall notify the calendar clerk of each court involved, in writing, indicating which hearing was set first. A party shall not be deemed to have been served within the meaning of this section until that party actually has received a copy of the documents to be served, unless the party, after receiving actual notice of the request for continuance, waives the right to have the documents served in a timely manner. . . ." "[A] party may make a motion for a continuance without complying with the requirements of [section 1050,] subdivision (b)," but "unless the moving party shows good cause for the failure to comply with those requirements, the court may impose sanctions as provided in Section 1050.5." (§ 1050, subd. (c).)
Defendant further claims that Everett asked for more time to prepare on January 5, 2015. On that date, the court confirmed that Everett had reviewed defendant's statement to police and asked whether there were any parts that he wished to have redacted. Everett replied that he could not "cogently discuss the transcript" because he did not have it in his possession. The prosecutor indicated that DPD Harris and he had already agreed to redactions of defendant's statement, including redactions based on the court's in limine rulings. The court lent Everett the court's copy of the transcript of defendant's statement, in which areas of concern had been highlighted, to read over the hour-and-a-half lunch recess. The prosecutor indicated that, over lunchtime, he would make copies of the unredacted transcripts and the transcripts with the final proposed redactions upon which DPD Harris and he had agreed. During the afternoon session of court, the prosecutor called the prosecution's first witness. During a break in the witness's testimony, the court and counsel discussed redaction of defendant's statement to police.
After going through several transcripts of defendant's videotaped statement with counsel, the court indicated that it was going to rule on redactions that day and admonished Everett that this was his opportunity to be heard because People were going to introduce defendant's statement in its case in chief. Everett protested that he had not "had enough time to review the transcripts", but he conceded that he had received them from prior defense counsel and that he had them in his possession over the past weekend. Counsel and the court proceeded to discuss the transcripts of defendant's videotaped statement. Everett requested more time, stating "I don't feel I've been given enough." The court indicated that Everett had sufficient opportunity since substituting in as counsel of record to make any objections to defendant's "Mirandized statement."
Even assuming that counsel's complaints of insufficient time constituted an implicit motion for a continuance, we discern no basis for a reversal. " 'A continuance in a criminal trial may only be granted for good cause. [Citation.]' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181 (Hajek), abrogated on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) " 'A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. [Citations.]' (People v. Jenkins (2000) 22 Cal.4th 900, 1037; see § 1050, subd. (e).)" (People v. Winbush (2017) 2 Cal.5th 402, 469-470.) "The court must consider ' " 'not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.' " ' [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 450 (Doolin).)
" ' "The trial court's denial of a motion for continuance is reviewed for abuse of discretion." [Citation.]' " (Hajek, supra, 58 Cal.4th at p. 1181.) "The trial court has substantial discretion in ruling on midtrial motions to continue the case, and appellate challenges to a trial court's denial of such a motion are rarely successful. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Beeler [(1995)] 9 Cal.4th 953, 1003.)" (People v. Seaton (2001) 26 Cal.4th 598, 660.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]" (People v. Beames (2007) 40 Cal.4th 907, 920.) "Absent a showing of an abuse of discretion and prejudice, the trial court's denial [of a continuance] does not warrant reversal. (People v. Barnett (1998) 17 Cal.4th 1044, 1126.)" (Doolin, supra, 45 Cal.4th at p. 450.)
But "the trial court may not exercise its discretion 'so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.' (People v. Sakarias (2000) 22 Cal.4th 596, 646.)" (Doolin, supra, 45 Cal.4th at p. 450.) " ' "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." [Citations.]' (People v. Mungia (2008) 44 Cal.4th 1101, 1118 (Mungia).)" (Hajek, supra, 58 Cal.4th at p. 1181.) Not every denial of a request for more time violates due process. (Ungar v. Sarafite (1964) 376 U.S. 575, 589.) In addition, " 'only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel.' [Citations.]" (People v. Alexander (2010) 49 Cal.4th 846, 934-935.)
Even assuming that Everett made an implicit request for a continuance to allow additional time for review of defendant's statement to police, defendant has not established any abuse of discretion or any prejudice. Everett knew on December 30, 2014 that the trial court was allowing him to substitute in as defendant's counsel of record based on his representation that he was prepared to proceed with trial. On Monday, January 5, 2015, Everett acknowledged that he had the transcripts of defendant's statements over the previous weekend and he had reviewed them. The court allowed Everett additional time to review the transcripts over the lunch recess. Although Everett claimed that he needed even more time to review defendant's statement to police, he did not demonstrate his own diligence in reviewing the statement or his lack of reasonable time to review it and prepare requests for redaction. Although defendant has referred us to many other examples of Everett's asserted unpreparedness throughout trial, he has not shown that those instances were connected to the court's refusal to give Everett more time to review defendant's statement and request redactions.
"Denial of what is essentially a motion for a continuance, when no good cause is demonstrated, is not an abuse of discretion. (§ 1050; cf. People v. Zapien (1993) 4 Cal.4th 929, 972.)" (People v. Davenport (1995) 11 Cal.4th 1171, 1196.) Further, defendant has not shown that "it is reasonably probable that a result more favorable to [him] would have been reached" if the trial court had granted a continuance to give Everett more time to review his statements to police. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant makes no suggestion that any part of his statement should have been redacted but was not. Defendant has not demonstrated that a failure of the court to grant a request for a continuance violated his constitutional rights.
Defendant suggests that the trial court "could have simply denied the request for substitution of counsel as untimely," pointing out that the trial court had discretion to do so. (See Courts, supra, 37 Cal.3d at pp. 790-791; cf. Espinoza, supra, 1 Cal.5th at p. 80.) But "[a] defendant whose request to substitute counsel is granted cannot complain on appeal that the trial court should have denied that request." (People v. Ramirez (2006) 39 Cal.4th 398, 423.) "The defendant's only contention on appeal in such circumstances can be that he or she was denied effective assistance of counsel. [Citation.]" (Id. at pp. 423-424.)
We conclude, based upon the record before us, that the trial court did not prejudicially abuse its discretion, or deny due process or other constitutional right of defendant, by failing to grant a defense request for a continuance. B. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to prove robbery's specific intent element—i.e., that he took Tony's car with the intent to permanently deprive Tony of his car. Defendant asserts that there was no evidence that he did more than temporarily deprive Tony of the enjoyment of his car. He contends that it was left in a conspicuous place for Tony to find and that "it was not damaged such that that [Tony] could not use it."
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "Theft and robbery have the same felonious taking element, which is the intent to steal, or to feloniously deprive the owner permanently of his or her property. (People v. Montoya (2004) 33 Cal.4th 1031, 1037.) . . . [T]he intent to deprive permanently is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of the value or enjoyment. (People v. Avery (2002) 27 Cal.4th 49, 58.)" (People v. Bacon (2010) 50 Cal.4th 1082, 1117.)
A felonious taking occurs when "the defendant takes property with intent to use it temporarily and then to abandon it in circumstances making it unlikely the owner will recover it. [Citations.]" (People v. Davis (1998) 19 Cal.4th 301, 307, fn. 4.) In State v. Davis (1875) 38 N.J.L. 176, one of the cases cited in People v. Davis, supra, 19 Cal.4th at p. 307, fn. 4, a person took a horse and carriage in the night and, after many miles and hours of reckless driving, abandoned them in the public road only several miles away from where they had been taken. (State v. Davis, supra, 38 N.J.L. at pp. 177-178.) The appellate court observed that the defendant "did not return the horse and wagon to the owner, or make any effort to do so, or apprise any one where they could be found, or to whom or where they belonged" and that the defendant "did not even put them in some secure place, where the owner might find them." (Id. at p. 177.) The court found that his conduct was "perfectly consistent with an intent originally to deprive the owner of his property . . . ." (Ibid.) The court stated that "an article may be taken with intent to steal and afterwards abandoned on pursuit, or from a mere change of purpose, yet the taking will be larceny." (Id. at p. 178.)
Relying on People v. Thompson (1980) 27 Cal.3d 303 (Thompson), defendant nevertheless asserts that, since Tony's car was neither hidden nor rendered inoperable by him, the evidence was sufficient to show only intent to temporarily deprive Tony of his car, which does not prove robbery. In Thompson, both victims, a woman and her fiancé, were shot in her house, the fiancé fatally. (Id. at pp. 310-311.) The woman believed her estranged husband had arranged the shooting. (Id. at p. 311.) Nothing was taken except the fiancé's car keys. (Ibid.) There was an issue whether the defendant had the intent to steal when committing the charged offenses and whether any intent to steal was merely incidental to the intent to kill. (See id. at pp. 313-314, 322-324.)
Thompson was abrogated on a ground unrelated to the issues in this case in People v. Scott (2011) 52 Cal.4th 452, 470-471.
The defendant was convicted of first degree murder of a male victim (§§ 187, 189), attempted first degree murder of a female victim (§§ 664, 187, 189), robberies of both victims (§ 211), and first degree burglary (§§ 459, 460). (Thompson, supra, 27 Cal.3d at p. 310.) In addition, "[t]wo special circumstances were found to be true, i.e., that [the defendant] personally committed a willful, deliberate, and premeditated murder during the commission and attempted commission of both a robbery and a burglary. (Former § 190.2, subds. (c)(3)(i) and (c)(3)(v).)" (Ibid.) The Supreme Court reversed the robbery and burglary convictions and set aside the two findings of special circumstances as to the murder conviction. (Id. at p. 334.)
The trial court in Thompson had allowed the prosecution to introduce evidence of a subsequent robbery that the defendant had committed outside the Breakers Restaurant in San Luis Obispo. (Thompson, supra, 27 Cal.3d at pp. 313-314.) (Thompson, supra, 27 Cal.3d at pp. 314, 318.) Almost two weeks after the shootings, in the early morning hours, the defendant held up the restaurant's supervisor. (Id. at p. 312.) "Wearing a ski mask and pointing a gun, [the defendant] accosted [the man] as he was leaving the restaurant and approaching his car in the parking lot. [The defendant] suggested they 'go back into the restaurant and get the money.' [The man] said he did not have the keys but would help [the defendant] break in. [The man] then heard the click of the pistol's hammer being pulled back, and he quickly offered to give [the defendant] what money he had. [The defendant] instructed [the man] to put his wallet on the floor of the car and to put the keys in the car's ignition. [The defendant] then drove the car out of the lot and down the hill. The police discovered the car the following day." (Id. at p. 312.)
The Supreme Court determined that the "only similarities" between charged crimes and the uncharged offense were that in both situations the perpetrator "demanded an automobile and left the scene with a set of his victim's car keys." (Thompson, supra, 27 Cal.3d at p. 320.) In determining that the trial court had erred in admitting evidence of the uncharged offense, the Supreme Court concluded that evidence of the uncharged offense did not "reasonably show" that the defendant had the specific intent to permanently deprive that victim of the uncharged offense of his car because, when the defendant confessed to that crime, he stated that he had used the car to get back down the hill and parked it and the local police recovered his car shortly after it was taken. (Id. at pp. 320-321.) The court pointed out that "[t]here was no evidence it had been hidden or rendered inoperable by [the defendant]." (Id. at p. 321.) It said that the evidence of the uncharged offense "showed only an intent to temporarily deprive." (Ibid.)
In Thompson, the Supreme Court was extremely concerned with the prejudice that might have resulted from admission of evidence of the uncharged offense, which involved dissimilar facts. (See Thompson, supra, 27 Cal.3d at pp. 314, 317-318, 321.) In considering the admissibility of evidence of the uncharged offense, the court was not evaluating the sufficiency of the evidence to support a robbery conviction involving the taking of a vehicle. "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance. [Citations.]" (Lindberg, supra, 45 Cal.4th at p. 23.) The Supreme Court has "long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [Citations.]" (People v. Robbins (1988) 45 Cal.3d 867, 879.) In Thompson, the Supreme Court concluded that evidence of the uncharged offense, which it concluded did not evidence the defendant's intent to steal a car, did not support a rational inference that the defendant had the specific intent to steal the fiancé's car at the time of the shootings. (Thompson, supra, at pp. 319-321.)
But "[t]he specific intent with which an act is performed is a question of fact[] [citation]" (In re Albert A. (1996) 47 Cal.App.4th 1004, 1008), and a trier of fact may reject a defendant's claim that he did not intend to permanently deprive another of property as not credible. "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.] 'Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
As a well-respected treatise on criminal law states, "one who takes another's property intending at the time of taking to deprive the owner permanently is nevertheless guilty of larceny, though he later (becoming frightened, or his better nature prevailing) decides to return it and does so." (3 Lafave, Substantive Criminal Law (2003 2d. ed.) Intent to Steal, § 19.5, p. 89, fn. omitted.) It also explains that "an intent to abandon, accompanied by a not-too-well founded hope that the property will find its way back to its owner does not negative the intent to steal." (Id. at p. 91, fn. omitted.)
In People v. Deleon (1982) 138 Cal.App.3d 602 (Deleon), the victim's car was found less than mile away from where it was forcibly taken, approximately an hour after the taking. (Id. at p. 605.) The victim's attache case, which contained numerous silver and gold coins and diamonds, was missing from the car. (Ibid.) When the car was found, a camera was missing from the car's dashboard, the CB radio had been ripped out, the car's stereo radio and tape player were damaged, and six tapes were missing from the car. (Ibid.)
In Deleon, the defendants were convicted of robbery among other crimes. (Deleon, supra, 138 Cal.App.3d at p. 604.) On appeal, they attempted to challenge the sentence enhancement imposed pursuant to former section 12022.6 for a taking resulting in a loss exceeding $25,000. (Deleon, supra, at p. 606.) They argued that "there was no robbery of the car because the evidence [was] insufficient to show that they intended to deprive the owner permanently of the car." (Ibid.) The appellate court rejected that contention, stating: "The fact that the car was subsequently abandoned does not compel the conclusion that [the defendants] intended to deprive the owner of the car only temporarily. [The defendants'] intent was to be inferred from circumstances and was a question of fact for the jury to decide. [Citation.] The jury might [have] reasonably conclude[d], for example, that [the defendants] intended to deprive the owner permanently of the car, but after discovering the valuable coins inside [the defendants] concluded that they had better abandon the car as quickly as possible because the police would not treat this as a routine car theft. Giving all reasonable inferences in favor of the judgment, substantial evidence supports a conviction of robbery for taking the car by force." (Ibid.)
In this case, the evidence that defendant abandoned Tony's car in the street shortly after taking it does not, as a matter of law, compel the conclusion that he lacked the requisite specific intent. The jury could reasonably infer from all the surrounding circumstances that in forcibly taking Tony's car, defendant acted with the intent to permanently deprive Tony of the car. There was no evidence that when the car was abandoned in the street, defendant was attempting to return the car to Tony or seeking to put it in a safe place where Tony would be likely to find it. Presuming in support of the judgment the existence of every fact that could be reasonably inferred from the evidence, we conclude that the evidence was sufficient to support the robbery conviction. C. Alleged Ineffective Assistance of Counsel
1. Contentions on Appeal
Defendant asserts that the record reflects that Everett provided ineffective assistance, principally because he was unprepared for trial. Defendant further asserts that Everett provided ineffective assistance by (1) failing to introduce an allegedly prior inconsistent statement made by Jeff S. and (2) failing to make a motion for a judgment of acquittal of the robbery charge under section 1118.1.
Section 1118.1 provides in part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
Defendant asserts that he was prejudiced by Everett's lack of preparedness and deficient performance. Defendant maintains that the outcome of the trial "would have been more favorable" "[h]ad counsel secured witnesses to support [his] description of his relationship with [Tony], secured witnesses that could speak to [Tony's] reputation for dishonesty, properly placed before the jury [evidence] that [Jeff S.] wasn't sure what he saw that night, secured an emergency room doctor to talk about what happens when someone is 'pistol whipped' to show that [Tony] likely wasn't, secured an expert to describe how concussions can make a person unreasonably fearful or paranoid to explain [Tony's] asserted fear [of him], [and] secured an expert to explain an expert to explain how police tactics can direct a witness's statement to a desired outcome to explain the final statement by [Tony] . . . ."
2. Governing Law
The standard for evaluating a claim of ineffective assistance of counsel is well established. It requires a two-pronged showing of deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.)
As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "[E]very effort" must "be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)
The prejudice prong requires a defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 111-112 (Harrington).)
A reviewing court is not necessarily required to address both components of an ineffective assistance claim. (Strickland, supra, 466 U.S. at p. 697.) If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed. (Ibid.)
3. Analysis of Everett's Alleged Lack of Preparedness for Trial
a. Everett's Performance as Defense Counsel
On Friday January 2, 2015, after the jurors had been sworn, the court went over its prior rulings on the parties' motions in limine. Everett did not always agree with the approach taken by his predecessor.
At one point, Everett asked for a ruling permitting him to cross-examine Tony regarding "racially charged statements" that Tony made about defendant when speaking to police to show both Tony's state of mind at the time of the incident and witness bias. But Everett had not brought a copy of the transcript of the police interview, which prior defense counsel had electronically sent to him, and Everett did not have a laptop. The court temporarily tabled Everett's cross-examination request.
Everett disclosed that he had received the proposed redacted version of defendant's interview with police but he had not had the chance to extensively review the transcript. Everett indicated that some of the redacted police statements to defendant were relevant because the officers had acted in "manipulative manner" and threatened or used "sticks and carrots" to elicit information from defendant. Everett stated that he "could put it in a formal motion with specific recitations of the transcript on Monday."
Everett indicated that he had a theory explaining why Audrey did not come out of her apartment after the incident, and it "involve[d] [Tony's] victimization of her and his attitude toward women." The trial court found that Everett had not shown that Audrey's failure to come out of her apartment after the incident was a relevant fact. Everett posited that evidence that Tony had previously spit on a female correction officer while being booked for a violation of section 647, subdivision (f) (being under the influence in public) constituted "character evidence" of Tony's attitude or conduct toward women when he was drunk. The trial court ruled that evidence of the spitting incident would not be admitted as character evidence, but that Everett could renew the motion with a specific evidentiary proffer.
Everett sought a ruling admitting out-of-court statements of Michael S. for the allegedly nonhearsay purpose of showing "why [Michael] stuck around to see the fight" (racial bias), but he did not have the transcript of the statements. Everett indicated that he could file a formal motion on Monday. The court confirmed its prior ruling excluding certain statements of Michael, but it indicated that a new motion would be considered.
Everett represented that defendant had grown up in a home with pervasive domestic violence and that defendant had acted as his mother's protector. He suggested the possibility that defendant had been trying to protect Audrey from abuse at the time of the incident. Everett indicated that he wished to call a domestic violence expert.
The trial court admonished Everett: "I'm not going to let you figure out your defense while we're on the record. I asked if you were prepared to go to trial. You said 'yes.' We are not going to have a trial where we're throwing things at the wall and see what sticks. So I really need to hear from you specifically what witnesses that you are seeking to call and a proffer for those witnesses."
Although he had some difficulty identifying the relevant character trait, Everett eventually indicated that he also wished to call the following character witnesses: defendant's grandmother and mother to testify to defendant's character traits for peacefulness and protectiveness and Hewitt Joyner, III, identified as defendant's mentor, to testify to his character trait for protectiveness. Everett suggested that the fight between defendant and Tony three days before the charged offenses involved defendant coming to Audrey's defense and that Tony was stalking Audrey outside her apartment and defendant had gone there to defend her against Tony on the night of the charged offenses.
The trial court indicated that Everett had not made an adequate evidentiary proffer to support the proposed defense-of-others theory or establish the relevancy of a domestic violence expert's testimony. It deferred ruling on the proffered character witnesses. The trial court gave Everett time to prepare a motion and submit it to the court by e-mail over the weekend for consideration on Monday January 5, 2015.
When the trial court asked Everett whether he was planning to call any experts on cross-racial identification, police interview tactics, or any other issue, Everett responded, "It's possible, Your Honor." The trial court admonished Everett that he was required to disclose potential expert witnesses to the People and that it could not rule on the relevancy of evidence without an evidentiary proffer.
On January 5, 2015, the first day of trial testimony, the court indicated that it had not received any "actual motions" over the weekend, but it had received "an overview of what counsel would be arguing." It allowed Everett to orally make any motions.
The trial court ruled that Everett would be allowed to cross-examine Tony regarding the nature of defendant's and his relationship. The court ruled that if Everett introduced evidence of racial remarks made by Tony, then similar racial statements made by defendant would be admissible. Everett informed the court that he was removing defendant's grandmother and mother from the defense witness list. The trial court confirmed its ruling that a domestic violence expert's testimony would be excluded because Everett had not shown that it would be relevant.
The trial court stated its understanding that neither party had been able to subpoena Audrey, and it asked Everett whether he was intending to call Audrey's father as a witness. Everett responded, "Potentially." Everett indicated that he was also considering calling the sister of Audrey's father and that sister's boyfriend. The court indicated that the testimony of persons who may have lived with Audrey would be excluded until there was an evidentiary proffer showing relevance.
Everett indicated that he would be calling Richard Leo, whom the court understood to be an expert on coerced confessions, to provide expert testimony regarding how police may obtain incorrect information from someone, such as Tony, "by applying . . . longstanding police tactics in an incorrect way" and "how the pressure is used to guide an individual in a particular direction . . . ." Everett did not have case law at hand to support calling a police coercion expert regarding a witness's statement to police, but he asked to brief the issue. The court found that Everett had not shown the need for such expert testimony, but it indicated that Everett could renew a motion prior to presenting the defense case.
Everett also wanted to present expert testimony regarding the effects of alcohol on a person's mental state and possibly regarding concussions, but he did not yet have the witnesses. The court responded that it would make a ruling when he disclosed the proposed experts.
Defendant again indicated that defendant's mentor would be testifying as a character witness regarding's defendant's character trait for peacefulness. The prosecutor indicated that, if this character witness testified, he would seek to impeach that testimony with evidence of defendant's domestic violence conduct (specifically, exhibiting a gun at the mother of his child), which the trial court had previous ruled would be excluded. The court indicated that would be permitted.
As discussed, the trial court and counsel engaged in an extensive discussion regarding the proposed redaction of defendant's videotaped statement to police. Everett did not have a copy of the transcript with him, and the trial court lent its copy of defendant's statement to Everett over the lunch recess. Later that day, after direct examination of Jeff S., the court and counsel continued discussion of redactions of defendant's statement. Everett informed the court that he had not had enough time to review the transcript, and he asked for more time.
At the end of the day, the trial court instructed Everett to provide the names and CV's of the experts that Everett wished to call to testify regarding the effects of alcohol and concussions, and any statements or reports issued by them, no later than Wednesday morning.
Without any citation, Everett asserted that he was entitled, under a court rule, to access the prosecutor's laptop computer for the purposes of publishing exhibits to the jury. The trial court instructed Everett to bring the citation to court.
On Tuesday, January 6, 2015, immediately before cross-examination of Jeff S., Everett requested permission to, if necessary, impeach him with a recording of his prior statement to police. The court informed Everett that a court rule required him to provide a transcript of the recording before playing it for the jury. Everett then asked to use the recording to refresh Jeff's recollection, but Everett had no way to play it and wanted to use the prosecutor's computer. Ultimately, Everett did not use the recording in his cross-examination of Jeff.
At the end of the day, defendant asked to have an extension until Friday to turn in the "previously requested brief" regarding an expert witness. The court denied the request.
On Wednesday, January 7, 2015, Everett proposed calling two expert witnesses. The court ruled that the defense's proposed forensic toxicologist, Miss Stewart, would be allowed to testify regarding the general effects of alcohol. Everett wanted to call a second expert, Dr. Steven Levine, to explain that a concussion could cause bad judgment, memory loss, and paranoia. The court said, "[T]o some degree, it appears to the court that you are trying to determine what you're going to use this expert for as we speak." The trial court admonished Everett that he needed to show that the expert's testimony was relevant to specific issues in the case. Defendant had not yet spoken to either proposed witness, and the court warned that it did not intend to delay trial to allow the experts to testify.
The trial court discussed the lineup of other defense witnesses. Everett indicated that his potential witnesses included Mr. Joyner and a sister of defendant, who would be called to testify regarding defendant's character. The court again asked Everett to specify defendant's character trait that was relevant to the charges.
On Thursday, January 8, 2015, after completing the testimony for the day, the jury was excused with directions to return the following Monday morning. In speaking with counsel out of the jury's presence, the court admonished Everett to have his witnesses available on Monday. The trial court noted that the defendant's potential character witnesses had not been finalized because Everett had failed to identify the specific character trait at issue. The court also indicated that the testimony of defendant's sister would be excluded because Everett could not confirm that she had complied with its pretrial ruling excluding witnesses from the courtroom.
On Monday, January 12, 2015, Everett again indicated that he wished to call a sister of defendant. He again mentioned defendant's mother. Everett then announced that he was seeking to have both Hewitt Joyner, Sr., and Hewitt Joyner, Jr., testify as character witnesses. The court refused to make a ruling without an adequate evidentiary proffer.
Everett moved to exclude as unduly prejudicial DNA evidence that was inconclusive as to defendant. The motion was denied.
After the prosecution rested on January 12, 2015, Everett variously proposed calling Hewitt Joyner, III, and Hewitt Joyner, II, and defendant's former guardian to testify regarding defendant's character traits for honesty, friendship and loyalty, being a peacemaker, and being a leader within the black community. Everett confirmed that he was not calling defendant's mother as a witness.
The trial court ruled that Everett could call Joyner, III, and defendant's sister, both of whom had been previously disclosed, to testify as to defendant's character traits for honesty, friendship, loyalty, or peacefulness. The court indicated that, if they testified to defendant's character trait for honesty, it would permit cross-examination regarding defendant's offenses of carrying a concealed firearm and concealing stolen property. If they testified regarding defendant's character trait for friendship, loyalty, or peacefulness, the court indicated that it would permit cross-examination regarding defendant's offenses of domestic violence battery (§ 243, subd. (e)) and exhibiting a firearm.
Moments before attorney Everett was to call the first defense witness, Michael S., Everett requested permission to question "Mr. Joyner," who he indicated was a gang intervention task force member, "on the effects of pistol whipping." The trial court denied the request due to the late designation and also found that the matter was "within the common experience of the jury." Then Everett asked the court's permission to examine Mr. Joyner as an expert on "at-risk teens' interactions with law enforcement." The court refused to rule on the latter request before giving the prosecutor an opportunity to respond.
Attorney Everett subsequently informed the court that he had decided not to call any character witnesses in light of the court's ruling. He again requested permission "to call someone about the pistol whipping" and the injuries that would be consistent with pistol whipping. The court reiterated that the matter was within the common knowledge of the jurors, who could see Tony's injuries.
Attorney Everett then indicated that he would be calling Kenton Wong instead of his previously disclosed forensic expert, who was unavailable, to testify regarding the effects of alcohol. He would also be calling Steven R. Levine to testify regarding concussions.
Attorney Everett then sought a ruling to allow Hewitt Joyner, III, to testify about the tactics used by law enforcement to elicit statements. Everett indicated that the proposed witness would testify that the police "tactics used in [defendant's] interview were more geared towards getting a conviction, essentially checking off the X, Y, Z than actually getting to the truth of what occurred." The trial court denied the request, finding that the proffered testimony was essentially argument and the proposed witness was not qualified as an expert. The court also refused to allow Hewitt Joyner, III, to testify as an expert regarding the state of trust between the community and police and the related reasons why a community member would make deceitful statements to police.
On January 13, 2015, the final day of evidence, Everett requested permission to call Hewitt Joyner, III, as an expert to testify to "false admissions of guilt in relationship to coercive police tactics, especially where at risk youth and young men from disadvantaged communities are implicated." The court placed on the record the "array of witnesses" proposed by Everett over the course of the trial, and stated that it was "extremely difficult to manage a case when it is ever shifting" and that it was counsel's "obligation to identify witnesses" and to "identify experts 30 days in advance" of trial. Later in the day, the court denied the request based on the lack of expert qualification and under Evidence Code section 352.
Shortly before the defense rested, attorney Everett asked, "Your Honor, the Court wouldn't be inclined to allow a brief recess or whatnot so that I may obtain a substitute specialist in concussions?" The court replied, "No. Are you going to rest?" Everett answered, "Appears so." b. Analysis
Defendant attacks Everett's performance on the grounds that Everett developed no clear defense theory and his theory of the case was "continually evolving" and "shifting," Everett offered a "parade of names on a continually changing witness list," Everett had "no time in which he could have conducted any investigation," and Everett failed to "research necessary areas of law." He maintains that Everett's performance reflected "a serious lack of preparation." Defendant also argues that "it was important for the defense that [Jeff] told Officer Mendoza that he couldn't really make out what was going on," but Jeff's prior statement to police was not introduced because Everett failed to provide a transcript of Jeff's recorded statement and bring a device on which to play it for the jury.
Even if we accept that attorney Everett's performance fell below professional norms, defendant must still establish prejudice in order for his ineffective assistance of counsel claims to prevail. (Strickland, supra, 466 U.S. at pp. 687, 700; see People v. Hart (1999) 20 Cal.4th 546, 624 ["prejudice must be affirmatively proved"].) Defendant's admissions, Tony's testimony, Jeff's eyewitness observations, the evidence of the gun and the bullets found at the scene or in the car, and the forensic DNA and fingerprint evidence established a strong case against defendant.
When defendant was interviewed by police, he ultimately admitted a number of critical facts with respect to the May 9, 2013 incident, including that Tony had been driving a silver "Beemer," that he had had a "a pretty serious fight" with Tony, that he had punched Tony, that he had been carrying a Ruger P85 gun in his coat pocket, and that the gun had fired. Defendant's fingerprint was found on the exterior of Tony's car, and a Ruger P85 was located in the bushes at the address where police subsequently made contact with defendant. Defendant admitted in writing that he knew what he did was wrong and there would be consequences for his actions.
A disinterested eyewitness, Jeff S., saw part of the physical altercation between two males, heard gunshots, saw a male carrying a gun drive off in the car, and saw someone, whom he identified as Tony, left behind. After personally speaking with Tony, Jeff called 911. There is abundant evidence that defendant took Tony's car while holding a gun after fighting with Tony.
Even if Everett had presented evidence of Jeff's alleged statement that he could not really make out what was going on, it would not have put his trial testimony in a significantly different light. There was no dispute that the incident occurred at night. At trial, Jeff acknowledged on cross-examination that he wore glasses, that he could not see the faces of the two individuals scuffling, and that there could have been other people out of sight. The jury heard the recording of the 911 call in which Jeff said that he simply saw "the shadow with a gun" of the suspect who got in the car and drove away, and he could not describe that person.
Everett asked Officer Mendoza on cross-examination, "And [Jeff] told you [that] he couldn't really make out what was going on; correct?" The court sustained a hearsay objection. --------
In assessing Tony's testimony that defendant had struck him in the face with a gun the jury was able to consider the photographs of Tony's face that were admitted into evidence. Further, defendant admitted to police that he had a gun and that he punched Tony. Defendant has not shown that there is a reasonable probability that, but for counsel's unprofessional errors, the jury would not have found the elements of force or fear.
Further, even assuming that defendant's counsel could have secured a witness to testify to Tony's general reputation for dishonesty, any such evidence would have been cumulative. Tony admitted that he had lied multiple times, to police, to investigators, and at the preliminary hearing. Tony also admitted on direct examination, without objection, that he had been convicted of misdemeanor crimes, and this evidence may have been considered by the jury in evaluating his credibility.
Everett's failures to file motions or provide legal authority or briefing to support a request, as he had indicated he would, do not in and of themselves establish ineffective assistance. Defendant has not demonstrated that any particular motion or request had legal merit and that there was some likelihood that the court would have granted it if he had followed through. (See People v. Smithey (1999) 20 Cal.4th 936, 1012.)
In addition, defendant's ineffective assistance claims depend in large part upon matters not reflected in the record on appeal, i.e. the existence, specific nature, relevance, and weight of potential testimony and the availability of witnesses. Insofar as defendant's ineffective assistance claims require us to assume that evidence exists outside the appellate record that could have and should have been presented at trial in order to find prejudice, the claims are more appropriately presented in a petition for habeas corpus. (See People v. Williams (2013) 56 Cal.4th 630, 691 [defendant's ineffective assistance claims could "be fully addressed only in a habeas corpus petition because they require[d] investigation of evidence outside the record in order to potentially establish prejudice"]; People v. Lewis (2001) 25 Cal.4th 610, 675 ["appellate record does not disclose the existence, availability, or relative weight" evidence that defense counsel failed to present]; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 ["claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding"].)
"Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice . . . ." (People v. Anderson (2001) 25 Cal.4th 543, 569.) In light of the evidence, defendant has not demonstrated the requisite prejudice based on Everett's lack of preparedness for, and performance at, trial, and therefore we must reject the claim. (See Strickland, supra, 466 U.S. at pp. 694, 700; Harrington, supra, 562 U.S. at pp. 111-112.)
4. Failure to Bring Motion for Judgment of Acquittal
Defendant maintains that Everett should have brought a motion for a judgment of acquittal because the evidence was insufficient to show that he took Tony's car with the specific intent to permanently deprive Tony of the car. As is clear from our resolution of defendant's insufficiency of the evidence claim, the evidence, together with the reasonable inferences therefrom, was sufficient to prove that defendant had the requisite specific intent for robbery.
"In determining whether the evidence was sufficient either to sustain a conviction or to support the denial of a section 1118.1 motion, the standard of review is essentially the same. [Citation.] ' "[W]e do not determine the facts ourselves. Rather, we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] '[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.] We do not reweigh evidence or reevaluate a witness's credibility." ' [Citations.] Notably, however, '[r]eview of the denial of a section 1118.1 motion made at the close of a prosecutor's case-in-chief focuses on the state of the evidence as it stood at that point.' [Citations.]" (Hajek, supra, 58 Cal.4th at pp. 1182-1183.)
Failure to make meritless, frivolous, or futile motions does not constitute ineffective assistance of counsel. (People v. Thompson (2010) 49 Cal.4th 79, 122; People v. Kipp (1998) 18 Cal.4th 349, 373.) There is no reasonable probability that the outcome of the trial would have been more favorable if Everett had made a motion for a judgment of acquittal as to robbery under section 1118.1. (See Strickland, supra, 466 U.S. at p. 694; Harrington, supra, 562 U.S. at pp. 111-112.)
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.