Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County Nos. BA343075, BA290020 & BA288833, Charlaine F. Olmedo, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Joshua Jamal Hooper appeals from the judgments entered following his convictions by jury on two counts of resisting an executive officer (Pen. Code, § 69; counts 1 & 2) and count 3 – battery against a peace officer (Pen. Code, § 243, subd. (c)(2)) with a court finding that he suffered two prior felony convictions (Pen. Code, § 667, subd. (d)). The court sentenced appellant to prison for eight years eight months. We affirm the judgments.
The court calculated the term of eight years eight months as follows. Having found that the present offenses violated appellant’s previous grants of probation in case numbers BA290020 and BA288833, the court lifted the suspension of execution of sentence in those two cases, resulting in prison terms of five years plus one year, respectively. The court imposed in the present case a term of 16 months on each of counts 1 and 2 (each as a consecutive subordinate term of eight months, doubled pursuant to the “Three Strikes” law) with a concurrent term on count 3. Case numbers BA290020 and BA288833 are not otherwise pertinent to this appeal.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is not in dispute, established that about 5:30 p.m. on July 6, 2008, uniformed Los Angeles Police Officers Juan Hernandez and Gabriel Medina were patrolling in the Wilshire division in a marked patrol car when they received a call about a burglary suspect near Citrus and Willoughby. As the officers looked for the described suspect, a citizen flagged them down and pointed towards an alley. The officers went there, exited their car, and saw appellant, who matched the suspect description, crouching between vehicles in a nearby carport.
Appellant made eye contact with Medina, and Hernandez said, “Stop, police.” Hernandez tried to contact appellant for the purpose of conducting a burglary investigation, and Hernandez was acting within the performance of his duties as a peace officer. Appellant fled past the officers. Medina tried to grab appellant’s shirt, but appellant continued fleeing with the officers in pursuit in their car.
At one point, appellant ran towards a stopped vehicle and tried to open its driver’s door. Medina exited his patrol car and told appellant to stop, put his hands on his head, and get on his knees. Appellant did not comply but, instead, continued to try to open the driver’s door. Medina grabbed appellant’s left arm, and appellant turned around and began swinging his arms towards Medina. The two struggled and fell. Medina tried to put appellant on his stomach to take him into custody, but appellant continued resisting.
Medina sprayed appellant in his eyes with pepper spray, and continued to tell him to stop resisting. Hernandez ran to appellant, told him to stop resisting, and hit him about three times. Appellant continued resisting, the officers continued hitting him, and appellant did not stop resisting until Medina threatened to spray him again. The officers handcuffed appellant and put him in the back seat of the patrol car. Appellant injured Medina during the above incident. (Count 3.) Moreover, appellant, while in the back seat of the patrol car, kicked out its left back passenger side window, and the officers then tied his legs. Appellant presented no defense witnesses.
CONTENTIONS
Appellant claims (1) the trial court erred by failing to adequately question appellant’s counsel during appellant’s Marsden hearing and by conducting a portion of the hearing in appellant’s absence, (2) this Court should review the in camera proceedings on his Pitchess motion, and (3) the trial court erroneously failed to give a unanimity instruction as to counts 1 and 2.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
DISCUSSION
1. The Trial Court Did Not Commit Marsden Error or Violate Appellant’s Right to Be Present at His Marsden Hearing.
a. Pertinent Facts.
On December 12, 2008, the court called the case for a pretrial conference. Appellant’s counsel, an alternate public defender, indicated he was engaged in trial and anticipated being in trial until January 15, 2009. Appellant’s counsel also indicated appellant was adamantly refusing to waive time. Appellant personally asked to address the court, and his counsel later advised the court that counsel thought that appellant wanted to indicate that if appellant’s counsel was engaged in another trial, appellant wanted to go to trial in appellant’s case. Appellant personally then stated that he would get a new lawyer. Appellant added, “[i]f he’s in trial, I need somebody that’s going to, ... focus on just my case[.]”
The court explained to appellant that any lawyer he obtained would have several cases, appellant’s counsel was “making a lot of good moves” for appellant, and if appellant was asking the court to appoint new counsel for appellant, the court would not do so. The court continued the case to January 8, 2009, ordered appellant to appear on that date for a status determination, but also found there was good cause to continue the case to January 15, 2009, because appellant’s counsel was engaged in trial.
On September 26, 2008, appellant filed a Pitchess motion and a motion for an order, and order, shortening time on the filing of the Pitchess motion. On October 8, 2008, the court partially granted the Pitchess motion. On December 3, 2008, appellant asked the court to grant probation in his case and the court indicated it would consider it. Appellant was represented by his previously mentioned counsel during the above matters.
After a recess, appellant’s counsel advised the court that he did not know whether appellant wanted to raise a Marsden issue or a Faretta issue, but appellant wanted to personally address the court. The court asked if appellant wanted the court to consider the issue of appointing new counsel for appellant, and appellant personally indicated yes.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
The following then occurred outside the presence of the prosecutor. “[The Court:] Mr. Hooper has indicated he would like to have a Marsden motion and ask to have a new lawyer appointed. [¶] Mr. Hooper, can you tell me the reason for that, why you would like a new lawyer, sir. [¶] The Defendant: Basically..., this guy right here is not representing me, ... to... his full ability. I feel like he’s trying to get me prosecuted, ... trying to get me to take a deal or something, not trying to help me out, ... this case is real felonious or whatever. They’re trying to say a probation violation or whatever is going on. He withholding like evidence, not letting me know the whole story, working with the D.A., ... just to try to get a conviction or something knowing that, ... I ain’t done nothing wrong. I’m sitting here like an innocent man.” (Sic.)
The following then occurred: “The Court: [appellant’s counsel], can you tell me briefly the status of the work that you’ve done on Mr. Hooper’s case so far. [¶] [Appellant’s Counsel]: Of course. I would note that Mr. Hooper is facing charges which have two prior strike allegations against him. This is a Three Strikes filing of information against Mr. Hooper. [¶] Mr. Hooper is upset because he has two grants of probation and he has a six-year suspended sentence on those, which we discussed in open court. [¶] I can tell the court that when I initially obtained Mr. Hooper’s case, I initially interviewed him -- [.]”
The court then stated, “All right. Stop right now. Dean, take out Mr. Hooper. Take him out of the courtroom. [¶] I’m going to indicate for the record that Mr. Hooper is being disruptive here in court while he is having his own Marsden motion. So I am going to have him removed.” The reporter’s transcript of the proceedings reflects appellant was removed from the courtroom.
The reporter’s transcript then reflects that the court stated, “[w]e’re back on the record in the matter of Joshua Hooper. The record will reflect that Mr. Hooper during the pendency of his own Marsden motion could not find it within himself to be quiet and was disruptive during the actual court proceedings. I do not find anything to indicate that [appellant’s counsel] has done nothing [sic] but a fine job for Mr. Hooper. If there is any breakdown in the relationship, clearly in my view it’s due to Mr. Hooper himself. In light of that, the Marsden motion is now denied.”
b. Analysis.
(1) Appellant Waived His Right to Be Present.
Appellant argues the trial court violated his federal due process right to be present at all critical stages of proceedings by ordering appellant’s removal from the courtroom during the Marsden hearing.
As a matter of federal constitutional law, a defendant may validly waive his or her presence at critical stages of trial. (Cf. People v. Welch (1999) 20 Cal.4th 701, 773.) Such waiver may occur when a defendant is disruptive at trial, and appellate courts give considerable deference to the trial court’s judgment as to when disruption has occurred or may reasonably be anticipated. (Ibid.)
In the present case, the court had inquired of appellant’s counsel what work he had done, and appellant’s counsel was in the process of responding to that inquiry when the court ordered appellant removed from the courtroom because he was disruptive. Assuming appellant’s presence in the courtroom during his counsel’s response was a critical stage of the proceedings, we see no reason not to apply the principles articulated in Welch to these facts.
The court stated appellant was being disruptive. The court later expanded on the matter, stating appellant could not find it within himself to be quiet. Neither of the parties’ counsel disputed the court’s statements. Giving the required considerable deference to the trial court’s judgment as to when disruption occurred, we conclude appellant was disruptive during the Marsden hearing and therefore waived his due process right to be present during the hearing.
Appellant also argues the trial court “failed to make a specific record of what appellant had done, and the reporter’s transcript does not include any independent reference to statements or outbursts made by appellant.” Appellant cites no authority for the proposition that the trial court was required to provide any more of a record than the court did, or that the reporter’s transcript had to include independent references to statements or outbursts by appellant. He therefore waived this issue. (Cf. People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9; People v. Morse (1993) 21 Cal.App.4th 259, 275.)
(2) The Trial Court Properly Denied Appellant’s Marsden Motion.
Appellant argues the trial court “abused its discretion by denying appellant’s Marsden motion without adequately questioning defense counsel about appellant’s allegations, and by continuing the hearing and ruling on the motion after it had removed appellant from the courtroom.”
“ ‘A defendant “may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.” [Citation.] The law governing a Marsden motion “is well settled. ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]” [Citation.]’ [Citations.]” (People v. Jackson (2009) 45 Cal.4th 662, 682.) We review the denial of a Marsden motion under an abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
First, we give considerable deference to the trial court’s judgment as to when disruption occurred and may reasonably have been anticipated. We believe it was appellant’s disruptive conduct which caused the trial court to cease further questioning of appellant’s counsel, and to continue to conduct the hearing, and rule on appellant’s motion, after appellant was removed from the courtroom. We conclude appellant is estopped from asserting the alleged trial court error, because his own conduct induced the commission of any such error. (See People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.)
Even if the doctrine of invited error does not apply, appellant concedes he “had set forth his complaints about his counsel, ” appellant “had informed the court the reasons why he wanted new counsel, ” and the court “listen[ed] to appellant’s grievances.” Appellant also concedes that, after listening to appellant’s grievances, the court “properly began” the alleged “necessary inquiry” of appellant’s counsel.
In People v. Turner (1992) 7 Cal.App.4th 1214, the court stated, “[w]hen a defendant requests a substitution of appointed counsel, the trial court is required to allow the defendant an opportunity to relate specific instances of his attorney’s asserted inadequacy. Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. [Citation.] For example, in People v. [Groce] (1971) 18 Cal.App.3d 292..., at page 297, the court held when a defendant asserts ‘specific important instances of alleged inadequacy of [counsel’s] representation’ such as failure to secure potentially exonerating evidence, the court cannot deny a Marsden motion without inquiry into counsel’s reason for not introducing the evidence. But, this court held in People v. Penrod (1980) 112 Cal.App.3d 738, 747..., inquiry into the attorney’s state of mind is required only in those situations in which a satisfactory explanation for counsel’s conduct toward his client is necessary to determine whether counsel can provide adequate representation. Further, that a defendant disagrees with the trial preparation and strategy adopted by his appointed counsel does not trigger any duty of inquiry by the trial court. (Id. at p. 748.)” (People v. Turner, supra, at pp. 1218-1219, italics added.)
Prior to the Marsden hearing, appellant made no complaint in open court about his counsel until the case was continued for good cause, despite appellant’s personal refusal to waive the statutory time. Appellant did not then assert any deficiency in his counsel’s representation other than the fact that appellant wanted an attorney who was “going to, ... focus on just my case[.]” Appellant’s later Marsden hearing fell on the heels of this complaint. Not surprisingly, appellant’s later complaint during his Marsden hearing was subjective, conclusory, and/or insubstantial (People v. Hill (1983) 148 Cal.App.3d 744, 754), which suggests that he was not concerned about ineffectiveness of his counsel, but was upset that he had two pending probation cases exposing him to six years in prison, plus the present case, and he wanted to go to trial without a further continuance.
We conclude appellant did not assert specific important instances of alleged inadequacy of his counsel’s representation, and a satisfactory explanation from appellant’s counsel for his conduct toward appellant was not necessary to determine whether counsel could provide adequate representation. As the court stated in People v. Young (1981) 118 Cal.App.3d 959, “[t]he transcript of the hearing on defendant’s motion to discharge counsel shows that the trial court made inquiry and listened to defendant’s reasons. Marsden requires no more” (People v. Young, supra, at p. 965) and “[i]n the case at bench, defendant’s complaints about his attorney did not require the court to inquire into counsel’s reasons or state of mind.” (Id. at p. 966.) No further inquiry by the trial court was required.
Moreover, “[w]hile a trial court must permit a defendant a reasonable opportunity to relate specific instances of misconduct, the court is not required to permit a defendant to disrupt courtroom proceedings.” (People v. Jackson, supra, 45 Cal.4th at p. 688.) There is no dispute appellant was given an ample opportunity to express to the court his concerns about his counsel before the court inquired of appellant’s counsel and appellant was removed from the courtroom for being disruptive. No Marsden error occurred. (Cf. People v. Jackson, supra, at p. 688.) The trial court did not abuse its discretion by denying appellant’s Marsden motion, and no violation of his right to counsel, due process right, or other constitutional right occurred.
2. The Trial Court Fulfilled Its Responsibilities Under Pitchess.
a. Pertinent Facts.
On September 26, 2008, appellant filed a pretrial discovery motion pursuant to Pitchess, supra, 11 Cal.3d 531, seeking from the Los Angeles Police Department various information in the personnel files of Medina and Hernandez. At the October 8, 2008 hearing on the motion, the court granted the motion to the extent appellant sought “false statements in police reports, arrests with fabricated probable cause, and allegations of excessive force, ” and the court scheduled an in camera hearing. On October 17, 2008, the court conducted the in camera hearing. The reporter’s transcript of the proceedings held in open court on that date reflects that a separate sealed transcript of the in camera hearing was prepared and filed with the trial court. Said reporter’s transcript also reflects that the court ruled that there were items to be disclosed pursuant to Pitchess.
b. Analysis.
Appellant asks this court to review the sealed transcript of the October 17, 2008 in camera hearing to determine whether the trial court properly ordered disclosure of all relevant documents.
Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832.) We have reviewed the contents of the sealed transcript of the October 17, 2008 in camera hearing. The transcript constitutes an adequate record of the trial court’s review of any document(s) provided to the trial court during the in camera hearing, and said transcript fails to demonstrate that the trial court abused its discretion by ruling there were no further items to be disclosed from the personnel files of Medina and Hernandez. (People v. Samayoa, supra, at p. 827; see People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, 1232.) The trial court fulfilled its responsibilities under Pitchess.
3. The Trial Court Did Not Err by Failing to Give a Unanimity Instruction.
a. Pertinent Facts.
During jury argument, the People argued that appellant committed an attempt violation and a resisting violation of Penal Code section 69, against each officer. Appellant argued the “real issues” in the case were whether the officers were “justified in taking their actions out on Mr. Hooper, ” whether the officers were justified in detaining him, whether they had probable cause to arrest him, whether their actions were excessive, and whether appellant acted in self-defense. Appellant also suggested appellant committed no attempt violation of Penal Code section 69 because such a violation applied to third parties, as when a third party interfered with police efforts to arrest someone. Appellant suggested no resisting violation occurred because appellant did not hit the officers.
Penal Code section 69, states in relevant part, “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable....” Penal Code section 69 “sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 814.) We refer to the first way as an “attempt violation” and the second way as a “resisting violation.” An attempt violation appears to be a specific intent crime, while a resisting violation appears to be a general intent crime. (Cf. People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 8-9.)
b. Analysis.
Appellant claims the trial court erroneously failed to give a unanimity instruction as to counts 1 and 2, pertaining to Medina and Hernandez, respectively. We disagree. “[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed... that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (People v. Gordon (1985) 165 Cal.App.3d 839, 853.)
A “unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Moreover, it is not error to fail to give a unanimity instruction where there is no substantial evidence based on which reasonable jurors could disagree as to which act the defendant committed. (People v. Schultz (1987) 192 Cal.App.3d 535, 539-540.)
In People v. Jones (1990) 51 Cal.3d 294, our Supreme Court stated, “[s]ome cases found harmless any error in failing either to select specific offenses or give a unanimity instruction, if the record indicated the jury resolved the basic credibility dispute against the defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed. [Citations.]” (Id. at p. 307.)
Our Factual Summary reflects the officers’ testimony concerning appellant’s offenses. Based on the officer’s testimony, we conclude the trial court did not err by failing to give a unanimity instruction, because appellant’s acts were so closely connected as to form part of one transaction. Moreover, there was no substantial evidence based on which reasonable jurors could have disagreed as to which act appellant committed. Further, there was overwhelming evidence of appellant’s guilt, and a reasonable jury would have convicted appellant of anyof the offenses shown by the evidence to have been committed; therefore, any trial court error in failing to give a unanimity instruction was harmless under any conceivable standard. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) The above is true even though Penal Code section 69 proscribes an attempt violation and a resisting violation, and even if the attempt violation and resisting violation are specific intent and general intent crimes, respectively.
DISPOSITION
The judgments are affirmed.
We concur: KLEIN, P. J., ALDRICH, J.