Opinion
F040619
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. ELBERT RAY HOUSTON, Defendant and Appellant.
Katherine Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, David A. Rhodes and Matthew L. Cate, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On October 1, 2001, the Tulare County District Attorney filed an information in superior court charging appellant Elbert Ray Houston and codefendant Brandon Bayilynn Howard with substantive offenses and special allegations. The district attorney charged appellant as follows: count I-shooting at an occupied motor vehicle (Pen. Code, § 246), a serious felony (§ 1192.7, subd. (c)), with two prior felony strikes ( § 1170.12, subd. (c)(2)(A)), two prior serious felonies ( § 667, subd. (a)(1)), and served two prior prison terms ( § 667.5, subd. (b)).
On October 3, 2001, appellant was arraigned, pleaded not guilty to the substantive charge, and denied the special allegations.
On December 7, 2001, the court denied appellants motion for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (Marsden). On February 20, 2002, the court denied appellants second motion under Marsden.
On February 26, 2002, jury trial commenced in superior court.
On March 1, 2002, the district attorney filed an amended information in superior court charging appellant as follows: count I-shooting at an occupied motor vehicle ( § 246) and count II-permitting another to shoot from a vehicle ( § 12034, subd. (b)). As to each count, the district attorney alleged appellant had sustained two prior felony convictions ( § 1170.12, subd (c)(2)(A)) and two prior prison terms ( § 667.5, subd. (b)). As to count I, the district attorney also alleged appellant had suffered two prior serious felony convictions ( § 667, subd. (a)). That same day, appellant was arraigned on the amended information, pleading not guilty to the substantive counts, and denied the special allegations.
On the same date, the jury returned verdicts finding appellant not guilty of count I and guilty of count II. The court subsequently conducted a separate proceeding as to the special allegations and the jury found the two strike allegations and one prior prison term allegation to be true.
On March 28, 2002, the court denied appellant probation and sentenced him to a total term of 26 years to life in state prison. The court imposed the indeterminate term of 25 years to life on the substantive count and a consecutive term of one year for the prior prison term. The court imposed a $ 5,000 restitution fine ( § 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole ( § 1202.45). The also ordered appellant to pay $ 444.86 in restitution to Enterprise Rent-A-Car and awarded 315 days of custody credits.
On May 20, 2002, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At 10:00 a.m. on June 22, 2001, Willie DeHoward and Dennis Mayo, Jr. were traveling through the City of Tulare in a rented Ford Focus automobile. DeHoward was driving the vehicle and Mayo was sitting in the front passenger seat. As they were traveling, DeHoward noticed two persons in a tan car. Appellant Elbert Houston was driving the tan vehicle and one Brandon Howard was sitting in the front passenger seat. When DeHoward asked whether he could talk to the individuals in the tan car, the latter vehicle took off. DeHoward had known appellant for two or three years but never had any problems with him.
DeHoward then went to get gas for his rental car. After obtaining the fuel, DeHoward encountered the tan car proceeding in the opposite direction as he was driving down Kern Street. Thinking the appellant and Howard wanted to talk to him, DeHoward turned around and came to a stop. Appellant pulled the tan car in front of DeHowards Ford Focus. At the intersection of California and Kern Streets, Brandon Howard stuck a gun out of the window of the tan car and pointed it at Dennis Mayo. Howard pulled the trigger but the gun would not discharge.
DeHoward turned left on Kern Street and the tan car followed him. DeHoward noticed the tan car, accelerated the Focus, and tried to get away. DeHoward and appellant ran a couple of stop signs and DeHoward eventually heard a shot come from his left side. The tan car was behind the Focus at the time of the shot. DeHoward continued driving and the tan car eventually turned off. DeHoward telephoned 911 and reported the incident to police. The police later asked him to view some individuals. DeHoward went to Kern Street and saw the same tan car. The two individuals he had previously seen - appellant Houston and Brandon Howard-were the ones present at the Kern Street show up.
At a later time, someone detected damage to the left rear tire of the renal car and pointed it out to DeHoward. DeHoward said there appeared to be a bullet hole in the hubcap of the tire. DeHoward said he never had any problem with appellant nor had he ever seen appellant with a firearm. During the time appellants vehicle was behind the DeHowards rental car, appellant never tried to pass him. During the 911 emergency call, DeHoward reported to the dispatcher he could not see any damage to his vehicle. When DeHoward went home after the shooting, he still did not find any damage to the car. He noticed the bullet hole within a day but was uncertain whether the hole was pre-existing. DeHoward admitted he had four prior felony convictions.
Dennis Mayo testified he had encountered appellant and Brandon Howard the night before the instant altercation. Mayo had seen both of them before but did not know them. Mayo was walking and appellant and Howard were riding in a car with appellant at the wheel. Howard asked Mayo if he wanted to die. The next morning, Mayo and DeHoward were traveling down the road in the rented Ford Focus. They saw appellant and Howard in the same car they were driving the night before and appellant was again driving. Mayo said DeHowards rental car and appellants tan car both came to a complete stop at F or G Street. DeHoward followed them to ask why Brandon Howard had questioned Mayo about wanting to die. DeHoward pulled along side of the tan vehicle and began questioning them, but appellant and Howard laughed and drove off. DeHoward followed and hollered at the tan car. Mayo thought DeHoward was being "very aggressive" toward appellant.
Appellant turned into an alley. DeHoward then made a U-turn and appellant turned around in the alley and got behind him. DeHoward went to make a left turn and appellant pulled up along his left side to partially block the turn. At some point, the tan car made a large circle in the intersection at California Avenue or Sacramento Avenue. The passenger leaned out of the window, displayed a chrome automatic pistol, and started squeezing the trigger but nothing happened. DeHoward completed a left turn and appellant followed. A few blocks later, Mayo looked in the passenger side-view mirror and saw appellants car approximately one block behind. Howard was again leaning out the window with the gun. About 20 to 30 seconds later, Mayo heard a single shot coming from behind him. Mayo "got down lower" in his seat as a result. Mayo and DeHoward were two to three blocks distant from appellant when Mayo heard the shot. Appellant eventually stopped his pursuit, and DeHoward stopped the rental vehicle and called police. Mayo said he did not know appellant at the time of the shooting incident.
Tulare Police Officer Cory Lenz received a dispatch at about 10:13 a.m. on June 22, 2001. Lenz responded to the area of Meadow and E Streets and made contact with DeHoward and Mayo. Lenz examined DeHowards rental car, but his brief examination did not disclose any damage. Lenz asked DeHoward to identify some individuals at Kern and B Streets, where Police Officers Barnes and Hinojosa had detained two subjects. DeHoward and Mayo went to that location and identified appellant as the driver of the tan vehicle.
Officer Greg Barnes received a dispatch concerning the shooting at 10:13 a.m. on June 22, 2001. According to the dispatcher, the suspect vehicle was a beige Toyota Camry carrying two Black adults whose names were familiar to Barnes. Barnes went to the area of the reported shooting and observed a beige Toyota Corolla with two Black occupants. He observed another patrol car in the vicinity of Kern and A Streets. Police Officer Hinojosa was driving that car and Barnes advised him of the situation. The two officers made a traffic stop of the Toyota and the driver identified himself as appellant Elbert Houston.
Officer Barnes was primarily concerned with the passenger in the suspect vehicle. Upon completion of the field identification, officers transported the driver and passenger of the suspect vehicle to the police department. Barnes placed paper bags on the suspects hands and put tape around the bags to preserve evidence for gunshot residue (GSR) testing. Barnes also searched the Toyota Corolla but did not locate any evidence of a crime.
Charles Taylor, City of Tulare evidence technician, used GSR collection kits to take physical evidence from appellant and Brandon Howard on June 22, 2001. After he administered each kit, he placed both kits in an evidence refrigerator. The kits went to a GSR laboratory, were returned to Taylor, and he again stored them in the refrigerator.
Criminalist Steven Dowell testified he had worked for the County of Los Angeles Department of the Coroner for 21 years and had analyzed over 7,000 cases of gunshot residue during his tenure. On August 7, 2001, he analyzed the GSR kit administered on Brandon Howard and on August 8, 2001, he analyzed the GSR kit administered on appellant Elbert Houston. To perform the analysis, Dowell used a scanning electron microscope and an energy dispersive spectrometer. On the Howard samples, Dowell found one highly specific particle of gunshot residue on one sample and many highly specific particles of residue on another sample. Dowell concluded Howard either discharged a firearm or had his hands in an environment where there was gunshot residue.
On appellants sample, Dowell found two highly specific particles of gunshot residue and one consistent particle of gunshot residue. Dowell concluded that appellant may have discharged a firearm or otherwise had his hands in an environment of gunshot residue. In sum, there were many particles for Howard and a few particles for appellant. Dowell was unable to distinguish between someone who may have discharged a firearm and someone who may have been present when the firearm was discharged. According to Dowell, any hobby or occupation that puts an individual in contact with lead particles can generate particles consistent with gunshot residue. In Dowells opinion, the driver of a moving vehicle could have gunshot residue land on his hands if his passenger were to fire a gun out of the front passenger window of the vehicle. He also said it is possible to absorb gunshot residue by touching someone who has fired a gun or has been in an environment where a gun was discharged.
On June 22, 2001, Tulare Police Detective Dave Frost was assigned to conduct follow-up work in this case. On June 28, 2001, Dennis Mayo called Frost about an apparent bullet hole in the left rear hubcap of the Ford Focus. DeHowards girlfriend returned the Focus to Enterprise Rent-A-Car which, in turn, had rented it out over the weekend. On July 3, 2001, Frost actually saw the vehicle. Frost confirmed a bullet struck the wheel below the hubcap.
Defense
Gerald Terry was an acquaintance of appellant and Brandon Howard. At 10:00 a.m. on June 22, 2001, Terry saw appellant driving a Toyota in the alley of an apartment building on Inyo and Santa Clara Streets. According to Terry, Willie DeHoward and Dennis Mayo were traveling in a burgundy car and were pursuing appellants vehicle. Terry did not hear any gunshots and did not notice anyone in either car with a firearm.
Annette Lott was not acquainted with appellant, DeHoward, Howard, or Mayo. At 10:00 a.m. on June 22, 2001, she was at work at a location on B and Kern Streets. Lott noticed a cream-colored car at the corner and a burgundy car trying to catch up with it. She saw both cars going down Kern. Less than one minute later, she saw the cars come "flying back." The same burgundy car was following the cream-colored car. Lott did not see anyone with a gun and did not hear any gunshots.
However, on cross-examination, Lott admitted knowing appellants mother.
Appellant took the stand on his own behalf and testified that Brandon Howard called him for a ride at 8:00 a.m. on June 22, 2001. Appellant was in a tan Toyota that had battery problems. These problems required him to touch the battery with both hands. On the way to his sisters home, he looked in the rear view mirror and saw Willie DeHoward at F and Inyo Streets. DeHoward was driving a burgundy Ford. Because of street construction, appellant made a U-turn at the intersection of Inyo and F Streets. DeHoward came up behind him and started hollering something. Appellant pulled away and DeHoward made a U-turn and tried to pull up beside him.
Appellant then drove west on Kern Street to Brandon Howards house. DeHoward and Mayo followed appellant for six or seven blocks. Appellant and Howard pulled up in an alley on West Inyo Street. After proceeding through the alley, they went into a parking stall and saw DeHoward at the end of the alley. Appellant drove in the direction of his sisters house and police officers pulled him over. DeHoward ultimately backed out of the alley. Appellant never saw a handgun during the time he was with Brandon Howard. Howard never showed him a handgun. Appellant admitted two prior felony convictions.
DISCUSSION
I.
APPELLANTS MARSDEN MOTIONS
Appellant contends his multiple motions for new counsel under Marsden, supra, 2 Cal.3d 118 should have been granted.
Appellant moved for substitution of counsel on December 7, 2001. The following exchange occurred in chambers:
"THE DEFENDANT: I just feel he aint working for me. I got conflict. I aint getting my paperwork. I aint getting nothing.
"THE COURT: What have you asked for that you havent gotten?
"THE [DEFENDANT]: My transcripts. I havent - I need to talk to him and try to see whats going on, filing motions all that. I aint getting none of that. I aint getting nothing.
"THE COURT: Anything else?
"THE DEFENDANT: I just feel he aint working for me. I need a new one, someone thats gonna work for me. This is my life. I got kids out there. I need somebody to work for me.
"MR. OLMOS [defense counsel]: A copy of his preliminary transcript, which he has requested, I did provide to him on Wednesday. We did
"THE COURT: So you do have the preliminary hearing transcript now?
"THE DEFENDANT: I aint asked for the transcript. He brung something way different. I need pictures. I aint got none of that. My other crimey his lawyer bring him everything. He got to showed it to me before I can read and find out whats going on. Every time I call and see whats up, the answering machine keep coming on.
"THE COURT: What other transcript is there that you want?
"THE DEFENDANT: Like the police report and the pictures, the evidence.
"THE COURT: Police report, is that what you mean?
"THE DEFENDANT: The transcript with the evidence, the picture of the car and the gunpowder result what they saying about that. I aint seen none of that. Only way I see it if I have the police can go get it from my crime.
"MR. OLMOS: I hadnt realized he wanted a copy of that. The only times I had gone to the jail hes only asked for a copy of the transcript, which I did provide to him?
At certain points in the December 7, 2001, Marsden transcript, the court reporter inadvertently inserted question marks rather than periods for punctuation.
"THE DEFENDANT: He let me see em.
"MR. OLMOS: We also have done some investigation. We did interview one witness that was provided, a name that was provided by his family. Weve been trying to locate another one, but we had no luck at all. In terms of motions, he really doesnt have any motions, after reviewing the case, I mean like a 995. We did the usual informal discovery request, but that was about it. Its a pretty straightforward case, shooting at a vehicle.
"THE COURT: Is there a particular motion that you want him to file?
"THE DEFENDANT: What about the evidence motion?
"THE COURT: What do you mean by the evidence motion?
"THE DEFENDANT: Like something about all the evidence came upon later. Hes not seeing to that or nothing.
"THE COURT: Like a discovery?
"THE DEFENDANT: Yeah, discovery motion. [P] . . . [P]
"MR. OLMOS: Ive gotten all the discovery from the District Attorney. I dont know what else there is to - in fact, I even got some additional discovery today, the prior record of my client, the co-defendant and one of the alleged victims.
"THE COURT: Have you shared that with Mr. Houston, that discovery material?
"MR. OLMOS: Not yet. I just got it myself this morning.
"THE DEFENDANT: Come talk about 25 to life. He aint shared nothing with me. 25 to life, I cant
"THE COURT: Is this a three-strike case?
"MR. OLMOS: Yes. We had a pretrial this morning, and the co-defendant was offered five years and eight months. If he had taken his offer, then Judge Moran was going to, as I understand it, was going to strike one of the strikes and then give him the double the aggravated term on Count 1, which would have been 14 years, but the other defendant wanted to go to trial. So thats why theres nothing we could do with him or I could do with him.
"THE COURT: Uh-huh.
"THE DEFENDANT: He had to tell me that. My crimey had to tell me that. Nobody told me that. He had to tell me that.
"MR. OLMOS: No, you were told?
"THE DEFENDANT: Right now by my crimey. It aint like you came and told me about if he take this well offer you 14. My crimey had to tell me this.
"THE COURT: I havent heard anything that Mr. Olmos has not done?
"THE DEFENDANT: He aint - I dont got nothing.
"THE COURT: Apparently hes going to be sharing with you the discovery that hes just gotten. He just got that. And hes already given you the preliminary hearing transcript, as I understand it.
"THE DEFENDANT: I dont feel hes trying to fight for me. My other crimey, he getting at least a deal. I aint getting no kind of offer, at least a try or something.
"THE COURT: Apparently, because its a three-strike case theyre not going to offer you anything unless your co-defendant, as I understand it, would have taken the deal.
"THE DEFENDANT: I aint got no strikes. I dont feel how I got strikes, how he saying - I aint got none.
"MR. OLMOS: He has a prior 246.3 out of 1998 and a 273.5 out of 1999.
"THE COURT: Thats at least what the Information [alleges] that you have those two prior convictions that are strikes. Thats why youre looking at
"THE DEFENDANT: I thought they wasnt a strikable, a spousal a strikable offense.
"THE COURT: They have them alleged as such. Thats why youre facing a 25-year-to-life sentence. [P] ... [P]
"THE DEFENDANT: Only thing come up with 25 do you want to take a deal or an offer. I wouldnt take a deal for 25 years. I dont see no kind of - nobody trying to work with me and trying to fight it for me or anything.
"THE COURT: Are you prepared to go to trial in this matter?
"MR. OLMOS: Yes. We found one witness kind of helps him out. I already issued a subpoena for him. The only thing I need now is for his family to provide me with some clothes for him, which my investigator has already talked to them.
"THE COURT: At this point I dont see where theres anything that Mr. Olmos [has] not done in your behalf. It doesnt seem like theres much he can do in terms of working out some type of plea bargain.
"THE DEFENDANT: He aint trying to do that.
"THE COURT: Im saying theres not too much he can do when you have a co-defendant and apparently the District Attorneys Office is not willing to make you any offer unless your co-defendant accepts an offer; is that correct?
"MR. OLMOS: Yes. If theyre going to go to trial with one, they might as well go with two.
"THE COURT: Is that what their position is?
"MR. OLMOS: Correct?
"THE DEFENDANT: Why they trying to double it? He something my crimey said something doubled.
"THE COURT: Thats if the co-defendant would have accepted the deal, then the judge that you just came from, the pretrial judge, Judge Moran, wouldve struck one of your strikes so youd only have one strike on you, which means under the law if you have one strike then whatever sentence you have gets doubled? [P] . . . [P]
"THE COURT: Well, at this point in terms of your attorney Im not going to dismiss your attorney. So I advise you to work closely with your attorney for your trial.
"THE DEFENDANT: Im trying to. He got to work closely with me, talk to me and let me know.
"THE COURT: Thats right. Thats all. Good luck."
Appellant moved for substitution of counsel a second time on February 20, 2002. The following exchange was held in closed court:
"THE DEFENDANT: He dont come talk to me. I cant talk to him. They try to give me 25 to life. Hes telling me I should take eleven years. I cant work with nobody doing that. He done say Im guilty.
"THE COURT: So the last hearing-the last Marsden motion we had was December 7. I didnt realize it was that far back. Whats happened since then?
"THE DEFENDANT: Nothing. Nothing happened.
"THE COURT: Mr. Olmos?
"MR. OLMOS: Well, we had a continuance of the jury trial. Actually, it was a motion by the co-defendant because they wanted to have the DA provide some additional police reports of some other incidents of shootings around the area where this incident occurred. [P] Those police reports, there was approximately two, were provided. However, in my review of the police reports, they really dont help Mr. Houston. They actually kind of hurt him, because these shootings involve some of his other family members and it could give the implication that this incident was like in retaliation for what has occurred in the past. [P] The trial, because the Public Defender wanted those police reports, was put over until February 13th I believe. Since then it has been trailing. [P] We did locate two witnesses who would provide testimony that he did observe two cars chasing each other. One lady, however, has refused our subpoena. We are not able to subpoena her. A gentlemen has accepted our subpoena and if he came into court, he would testify that he saw my client and the co-defendant being chased by complaining witnesses, but thats all he saw. He didnt hear any shots or anything like that.
"The problem that Im having with Mr. Houstons case, and I explained to him many times when Ive been to the jail and in court, is that immediately after his arrest both he and the co-defendant were both tested for gunshot residue on their hands. Unfortunately, it came back positive. [P] The co-defendant has an explanation as to why gunshot residue would be on his hands, because he claimed he fired a pistol around four oclock in the morning. Mr. Houston, however, tells me that the last time he ever fired a gun was like 1998. So maybe he didnt fire a pistol, but he may have been around where a pistol was fired. I just dont have an explanation for that. [P] Now, at the last pretrial when Judge Ferguson agreed to strike one of the strikes and agreed to give him eleven years, in view of the evidence that I had concerning the GSR test and the fact that Mr. Houston has two-at least two prior felony convictions and he was not going to take the witness stand, I strongly suggested to him last week that he might want to consider the eleven years as opposed to taking the risk of going to trial and being found guilty and then receiving a minimum of 25 years to life. Theres a couple of special enhancements that are also attached, which would add I think six additional years prison priors. Thats where were at.
"THE COURT: Mr. Houston?
"THE DEFENDANT: I feel I need somebody to work for me. He aint working for me. He trying to tell me to take something eleven years for something I didnt do. Why should I take
"THE COURT: Then I presume hes ready to go to trial.
"MR. OLMOS: Yes. We have clothes for him. This one witness I told you, we have him under subpoena. Ive been assured by his family that this individuals going to show up. Its-the trials been trailed now until next Monday.
"THE DEFENDANT: He smells like alcohol and all that-hes supposed to be-he smell like alcohol and all that. He aint working for me.
"THE COURT: I havent smelled any alcohol.
"THE DEFENDANT: I have. I have. Many times he came and talked to me shook my hand face to face. I know what I smell. Yall probably dont get as close as I do when he come to talk to me. Every time he come to talk to me many a time. I aint have no gunpowder. He didnt try to look into that or nothing. [P]...[P] Hes trying to take me to take eleven years for what?
"THE COURT: Thats his advice. You dont have to follow his advice. If you dont, apparently Mr. Olmos is prepared to go to trial.
"MR. OLMOS: I am.
"THE DEFENDANT: I dont think Im prepared to go to trial with him.
"THE COURT: Well, from what I hear theres only so much he can do to prepare this case for trial in terms of witnesses or other matters.
"THE DEFENDANT: But the other witnesses, she came. I dont see what the problem now. Last time he told me they came-he cant find her. She end up coming.
"MR. OLMOS: My investigator tells me that he has tried a number of times. Hes gone to her residence where we believe shes living. Nobody answers the door. When I last talked to my investigator last week, he says that he just hasnt been able to find her. I dont know what the problem is.
"THE COURT: Did she show up last time?
"MR. OLMOS: No, she did not. At the last trial she did not show up but she did give me a call. Actually a family member gave me a call, asking when she had to be in court. And I explained that the trial had been continued. This was back in December.
"THE DEFENDANT: She came to court the other day. She was sitting in there. You didnt ask. The black lady was sitting down. That was her.
"MR. OLMOS: I didnt see her.
"THE DEFENDANT: She same.
"THE COURT: Do you know her by face?
"MR. OLMOS: No, I dont.
"THE DEFENDANT: I know her by face, but she was in court. Thats when they-that was last week.
"THE COURT: Is your investigator still attempting to serve her?
"MR. OLMOS: Im not really sure. Ill have to give him a call and see.
"THE DEFENDANT: He aint trying to serve her. He aint trying to serve her the papers.
"THE COURT: Mr. Houston, Im not going to relieve Mr. Olmos as your attorney. I dont find that he is not trying to prepare your case or is not prepared to trial. So I emphasize that you should, because youll have a lot at stake, cooperate with Mr. Olmos in preparation of your trial. Apparently theres 25 been an offer made. You didnt want to take that offer, which is your life, as you said earlier
"THE DEFENDANT: But he aint trying to fight for it. He want me to plead guilty and go on about his business, I guess.
"THE COURT: He doesnt want you-I dont want to put words in Mr. Olmoss mouth, but I didnt hear him say that wants you to plead.
"THE DEFENDANT: In so many words.
"THE COURT: It was his advice that you take it. But do you feel you ever forced him to do so?
"MR. OLMOS: No, not at all. I emphasized to him that we have certain aggravating factors that hurt his case, some mitigation factors that help his case, but because were on the balance here, it was my advice to him that he might be better off taking the eleven years as opposed to running the risk of going to trial because of the gunshot residue test and being found guilty of getting 25 years to life.
"THE DEFENDANT: Tell him about the gunshot residue saying maybe it dont work, and it may be gunshot. Now youre trying to tell me like about the gunpower.
"THE COURT: The motion to have Mr. Olmos relieved as your counsels denied. The matters referred to trial."
Appellant moved for substitution of counsel a third time on February 26, 2002, claiming "he [defense counsel] aint working for me. I dont get along with him. I got a conflict of interest with him." Appellant also claimed defense counsel was "trying to say Im guilty." The court asked those gathered in the courtroom to step outside and the following exchange occurred:
"THE COURT: Now, Mr. Olmos, did you tell Mr. Houston you thought he was guilty?
"MR. OLMOS: No, Your Honor. What I do is, in fact, I think about a week before last week I went over to the jail, went through the facts of the case, and just gave him an update. [P] When we were in front of Judge Ferguson last week, we tried to pretry it, and Judge Ferguson gave an indicated sentence of 11 years. And I talked briefly with Mr. Houston about the offer. And I explained to him that he may, you know, want to take the offer because one of the biggest problems were going to have with the case is trying to explain the gunshot residue test or the gunshot residue that was allegedly found on his hands and that was tested after he was arrested. [P] And I suggested to him he may want to consider the offer as opposed to going to trial and risking the possibility of receiving 25 years to life since this is a third strike case. And that was it.
"THE COURT: All right. Do you have anything else to say?
"THE DEFENDANT: Then why he gonna feel Im guilty? I dont want nobody feeling Im guilty. I dont need to take no 11 years for something I didnt did.
"THE COURT: Well, fine. Well have a trial to decide whether you did it or not.
"THE DEFENDANT: I need somebody gonna fight for me, not somebody gonna have a doubt.
"THE COURT: He doesnt - Mr. Olmos didnt express doubts to you. He told you what the evidence was that the prosecution is going to be presenting to those jurors that are up there.
"THE DEFENDANT: I dont like it. I feel, you know, once they take the handcuffs off, something might happen. Im already looking at what Im looking at. I might do something to him. I cant have nobody fighting with me like this.
"THE COURT: Your handcuffs will be off when we start the trial. But if you, in fact, demonstrate any aggressive behavior, youll be put back into chains. You will not-you will not be handcuffed or on ankle braces during the trial. But if you dont behave yourself and you display any form of aggressive behavior, yes, they will be put back on.
"THE DEFENDANT: So I gotta work with somebody I dont even get along with, I dont even like, trying to work with?
"THE COURT: Sir, unfortunately the law says that youre entitled to a competent attorney. When you cant afford one, the Court has to appoint one for you. Thats what the Courts done. [P] You have the option, and you have apparently some friends and relatives here, and they have the option of going out and hiring one for you if you do not like the one you have. [P] But the Court is not going to appoint a new attorney unless the Court is convinced that somehow Mr. Olmos has failed to do something that he should have done in preparing a defense in this case. And theres nothing that Ive heard from you that tells me that.
"THE DEFENDANT: I dont get along with him. I dont like what he was saying.
"THE COURT: Well
"THE DEFENDANT: I feel he aint working for me.
"THE COURT: Well, you know, his job is not to tell you what you like to hear. Its to tell you
"THE DEFENDANT: He telling me to take-something I didnt did, but I should have gone take eleven years off of my life.
"THE COURT: He doesnt tell you to take eleven years. The choice is yours. He is, however, as an attorney required to communicate to you what the judge is saying, what has been offered to you, and allow you to accept or reject it. He did that.
"THE DEFENDANT: He tell me he say that. He didnt work for me. I feel Im not guilty.
"THE COURT: Okay. I havent heard anything. So he is not getting discharged. Hes going to continue to be your attorney...."
A criminal defendant is entitled to the assistance of counsel at all critical stages of the proceeding. The right of a criminal defendant to counsel and to present a defense are among the most sacred and sensitive of our constitutional rights. The court is under an absolute duty to appoint counsel to represent an indigent defendant. However, a defendants right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. An indigent defendant may be entitled to an order substituting appointed counsel if he or she shows that, in his or her absence, his or her Sixth Amendment right to the assistance of counsel would be denied or substantially impaired. The defendant must demonstrate either that appointed counsel is providing inadequate representation or that he or she is embroiled in an irreconcilable conflict with defense counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 150.)
In Marsden, supra, 2 Cal.3d 118, the Supreme Court mandated a court hearing to determine whether a defendants appointed counsel offers constitutionally inadequate representation when defendant requests substitution of appointed counsel. The legal principles governing a Marsden motion are well settled. When a defendant asserts inadequate representation, the trial court must permit the defendant to explain the basis of his or her contention and relate specific instances of the attorneys inadequate performance. A defendant is entitled to relief if the record clearly shows the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Lara, supra, 86 Cal.App.4th at p. 150.)
The trial court is not obligated to initiate a Marsden inquiry sua sponte. The courts duty to conduct the inquiry arises only when the defendant asserts directly or by implication that defendants counsels performance has been so inadequate as to deny defendant his or her constitutional right to effective counsel. The defendant is not entitled to claim an irreconcilable conflict has arisen merely because of a disagreement with counsel over reasonable tactical decisions. Moreover, a trial court is not required to conclude an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. (People v. Lara, supra, 86 Cal.App.4th at p. 151.)
The right to the discharge or substitution of court-appointed counsel is not absolute and is a matter of judicial discretion unless there is a sufficient showing the defendants right to the assistance of counsel would be substantially impaired if defendants request was denied. The trial court also retains discretion to deny a Marsden motion as untimely. On appeal, we review a trial courts decision denying a Marsden motion to relieve appointed counsel under the deferential abuse of discretion standard. (People v. Lara, supra, 86 Cal.App.4th at pp. 151-152.)
Appellant contends on appeal:
"Had attorney and client not been so embroiled in an irreconcilable conflict, it is likely that a more favorable result would have been reached. If Appellant had not suffered a total breakdown in communication with his court-appointed counsel, it is likely that counsel could have communicated the salutary aspects of the eleven-year plea bargain. In any case, the failure to appoint substitute counsel constituted reversible error, because it cannot be concluded beyond a reasonable doubt that the error in forcing Appellant to continue with counsel did not contribute to Appellants conviction. (People v. Chavez (1980) 26 Cal.3d 334, 161 Cal. Rptr. 762, 605 P.2d 401.)
"Moreover, although the court in the Marsden hearings allowed counsel to address the various areas in which he thought defense counsel to be deficient, the court inadequately and insufficiently explored the breakdown in the attorney-client relationship. Appellant claimed he could not work with the attorney and did not get along with him and did not like what the attorney was saying, to the point that Appellant did not know what he might physically do to the attorney. If these facts were not sufficient, in the courts mind, to signal a total and irremediable breakdown of the attorney-client relationship, the court should have questioned further whether Appellant had any confidence lift [sic] in his attorney and whether he could listen with any degree of attention to any advice given by the attorney... [P]...[P] The attorney-client relationship in the instant case was ruptured. The resort to physical threats on the part of Appellant signaled Appellants state of hopelessness and frustration. Trial counsel should have been replaced...."
We have quoted substantially verbatim from the reporters transcripts of the three Marsden hearings to minimize the need for an extended discussion of appellants contention. Under Marsden, the trial court has a duty to permit a defendant to state reasons for his or her dissatisfaction with counsel whenever the defendant in some manner moves to discharge his or her current counsel. Nevertheless, the mere fact there appears to be a difference of opinion between a defendant and his or her attorney over trial tactics does not place a court under a duty to hold a Marsden hearing. (People v. Lucky (1988) 45 Cal.3d 259, 281, 247 Cal. Rptr. 1, 753 P.2d 1052;People v. Penrod (1980) 112 Cal. App. 3d 738, 745, 169 Cal. Rptr. 533.) The court conducted three separate Marsden hearings in the instant case and each time the court allowed appellant to speak at length. On each occasion, appellant essentially insisted defense counsel was not "working for me" and counsel explained the steps he and his investigator had taken or attempted to take on appellants behalf. Although appellant maintained counsel should file certain motions or call certain witnesses on his behalf, there is no constitutional right to an attorney who will conduct the defense of a criminal case in accord with the whims of an indigent defendant. (People v. Lucky, supra, at p. 281.)
At the third Marsden hearing, appellant said he needed someone to fight for him and suggested "something might happen" in the event he did not have a counsel fighting for him. Substitute counsel should be appointed when the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. However, a defendant may not force the substitution of counsel by his or her own conduct that manufactures a conflict. (People v. Smith (1993) 6 Cal.4th 684, 696, 863 P.2d 192.) In his opening brief, appellant contends "this does not appear to be a case in which the trial counsel was providing inadequate representation." Therefore, this ground for substitution of counsel is unavailable. Further, appellants comments at the third Marsden hearing constituted, in the words of the People, "a last-ditch effort to compel substitution." The trial court properly advised appellant that such behavior would be against his own interests and would not be tolerated. Moreover, a manufactured conflict was not a valid basis for substitution of counsel.
Finally, in our view, appellants dissatisfaction with trial counsel was not the product of counsels representation. Rather, his dissatisfaction was simply the inevitable byproduct of a criminal record that severely hampered counsels ability to negotiate a more favorable disposition on appellants behalf. The trial court did not err in denying appellants multiple motions for substitute counsel under Marsden, supra, 2 Cal.3d 118.
II.
AMENDMENT OF THE INFORMATION DURING TRIAL
Appellant contends the addition of count II to the information during trial was a jurisdictional defect under article I, section 14 of the California Constitution, and reversal of the judgment of conviction is required.
Article I, section 14 of the California Constitution states in relevant part:
"A person charged with a felony by complaint subscribed under penalty of perjury and on file in a court in the county where the felony is triable shall be taken without unnecessary delay before a magistrate of that court. The magistrate shall immediately give the defendant a copy of the complaint, inform the defendant of the defendants right to counsel, allow the defendant a reasonable time to send for counsel, and on the defendants request read the complaint to the defendant. On the defendants request the magistrate shall require a peace officer to transmit within the county where the court is located a message to counsel named by defendant."
Section 1009 states in relevant part:
"An . . . information may be amended by the district attorney . . . without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an . . . information . . . for any defect or insufficiency, at any stage of the proceedings, or if the defect in an . . . information be one that cannot be remedied by amendment, may order . . . a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination...."
Appellant argues:
"On the fourth day of trial, the information was amended to add Count 2, that on or about June 22, 2001[,] Appellant permitted another to shoot from his vehicle, in violation of Penal Code § 12034(b), a felony. Previously, Appellant had been held to answer on Count 1, only, a violation of Penal Code § 246. Although Appellants counsel did not object to the amendment, which added an entirely new charge to which Appellant had not been held to answer at the preliminary hearing, Appellant contends on appeal that the trial court was without jurisdiction over Count 2 because there was no evidence of Count 2 submitted at the preliminary hearing and because Appellant had no opportunity to defend against the newly interposed charge. [P] . . . [P]
"Although the statute itself, which criminalizes a failure to act rather than an act itself, is constitutional, Appellants defense was premised on the theory that he did not discharge the weapon and that he did not aid and abet someone else in the discharge of the weapon. To switch theories at the very end of the case-from the sin of commission to the sin of omission-denied Appellant an opportunity to prepare an adequate defense to the charge. Thus Appellant was denied due process and fair notice of the charge against him by the late filing of the amended information. . . .
"Moreover, an information cannot be amended to add a charge that was not shown by the evidence at the preliminary hearing (Penal Code 1009)[.] At Appellants Proposition 115 preliminary hearing, two witnesses testified: Cory Lenz and David Frost. Lenz, police officer with the City of Tulare, testified that the Defendants came in behind [Willie DeHoward and Dennis Mayo] in their vehicle, . . . pulled up beside them, and one of the suspects brandished a firearm at them at which time they drove off [in] the suspect vehicle and suspects giving chase. He said that one shot was fired from the gun at them. Lenz reported that Brandon Howard, the passenger, was the one who pointed the gun at DeHoward. Dave Frost, detective with the Tulare Police Department, testified that he observed what appeared to be a nine millimeter .38 caliber bullet hole in the left rear hubcap of the vehicle in which Willie DeHoward and Dennis Mayo were riding at the time of the shooting.
"There was no evidence at the preliminary hearing that Appellant knowingly permitted codefendant Brandon Howard to discharge the weapon. The evidence was simply that the suspect vehicle pulled up to the car in which DeHoward and Mayo were driving and that someone in the suspect vehicle said, Whats up?, after which the passenger, not the driver, fumbled with a slide mechanism on the gun, trying to fire it, and that a gunshot was heard. There was no evidence that the driver made any statement acknowledging knowledge of the gun or that the driver knowingly permitted the discharge of the firearm.... [P]...[P]
"Appellant concedes that his trial counsel did not object to the amended information nor request a continuance of proceedings. However, such failure to object does not waive the argument on appeal, because Appellant claims that amendment of the information to add Count 2 was a jurisdictional defect under Article I, Section 14 of the California Constitution...." (Original bolding.)
At the close of proceedings on February 28, 2002, the following exchange between court and counsel occurred outside the presence of the jury:
"THE COURT: All right. In chambers and off the record at the last recess the attorneys asked to meet with me to discuss the scheduling and advised me that the witnesses would not be available after 3:00 - after this last witness. [P] I also raised the issue at that time about instructions . . .. [P] And . . . in the course of discussing those issues, the Court pointed out that there is a provision in the Penal Code section 12034(c), I believe.
"MS. ENGUM [deputy district attorney]: I believe its subsection (b) that the Court was referring to.
"THE COURT: (B), yes. Which is - defines the offense of permitting the driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, knowingly permitting any other person to discharge a firearm from a vehicle. [P] That offense is a felony, but it is punishable by . . . less time than the charge that the defendant is facing. [P] Its sixteen, two, three is the sentence range for that. And the charge that the defendant is charged with, which is aiding and abetting a shooting at an occupied motor vehicle, is three, five, and seven.
"The offense is still subject to the provisions of the Three Strikes law, which is Penal Code section 1170, but it is less serious, at least in terms of prison time that the offense itself covers.
"The prosecutor indicated that the People were willing to amend the information to allege the alternative complaint, the alternative charge of this offense as opposed to the other. [P] In light of the testimony weve had from Mr. Mayo, it appears that there is evidence to support that.
"The Court told you, Mr. Olmos [defense counsel], that you should discuss this with your client and determine whether you would agree that the People could amend the offense to allege in the alternative. And Im going to put that on the record that Ive told you that and that the People made that offer. And I want it clear that that has been put out.
"MR. OLMOS: I have not had a chance to discuss this.
"THE COURT: Well, you discuss it, and I want an answer, because the People are going to have to prepare jury instructions and prepare an amended information and all that. So you go discuss it. . . ."
The next morning, the following exchange occurred outside the presence of the jury:
"THE COURT: As we recessed yesterday, the Court had indicated entertaining a motion by the People . . . to amend the petition by alleging an alternative count to count one, that of violation of Penal Code section 12034 . . . (b). [P]...[P] ... And we have here a copy of the instructions which pertain to that, but I do not have a copy of the amended information.
"MS. ENGUM: I have it right here, Your Honor. Im sorry.
"THE COURT: All right. Mr. Olmos, on behalf of the defendant, do you have any further comment on all this?
"MR. OLMOS: No, Your Honor. Only to add that well acknowledge receipt of the first amended information, waive formal arraignment, further reading of Mr. Houstons constitutional and statutory rights. Enter a plea of not guilty.
"THE COURT: All right. Plea of not guilty will be entered to both counts as amended.
"MS. ENGUM: Thank you."
An information cannot be amended to charge an offense not shown by the evidence taken at the preliminary examination. Moreover, after arraignment on the original charges, the accusatory pleading can be amended only by order or permission of the court. The court has broad discretion to deny leave to amend and must do so if the amendment would prejudice the defendants substantial rights. (People v. Birks (1998) 19 Cal.4th 108, 129, 960 P.2d 1073.) The trial courts discretion, in granting a motion to amend, will not be disturbed on appeal in the absence of a showing of a clear abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.) A criminal defendant may not challenge the amendment of an information for the first time on appeal where (a) the district attorney in open court files the amended pleading in the presence of the accused and (b) the accused does not offer an objection, make a motion for continuance, or insist that his substantial rights are prejudiced by the amendment. (People v. Walker (1959) 170 Cal. App. 2d 159, 164, 338 P.2d 536.)
Penal Code section 739 requires that the district attorney to file an information charging the offense for which the accused has been committed or any other offense shown by the evidence taken before the magistrate to have been committed. Section 739 sets forth a valid procedure. Where, as here, a criminal defendant does not object to the amendment of an information or ask for a continuance, he or she waives the right to assert error. (People v. Collins (1963) 217 Cal. App. 2d 310, 313, 31 Cal. Rptr. 587.) Appellants challenge to the amended information must be rejected.
III.
JURY INSTRUCTIONS
Appellant contends the jury instructions diminished the mens rea required for the crime of permitting the discharge of a weapon and reversal is required.
In reviewing a claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning was unobjectionable, the instructions cannot be deemed erroneous. The essential question is whether there is a reasonable likelihood the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. Even in the absence of a request, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence; that is, those principles that are closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. On the other hand, a trial court may refuse to give an entirely accurate instruction if it is duplicative or there is no evidence to support it. In addition, the court may modify any proposed instruction so long as the modifications are themselves correct and pertinent to the issues. (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277.)
Under California law, there is no error in a trial courts failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. A reviewing court will not set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes the error has resulted in a miscarriage of justice (Cal. Const., art. VI, § 13). A miscarriage of justice occurs only when it is reasonably probable the jury would have reached a result more favorable to the appellant absent the error. (People v. Dieguez, supra, 89 Cal.App.4th at pp. 277-278.)
In the instant case, section 12034, subdivision (b), as charged in count II, states:
"Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly permits any other person to discharge any firearm from the vehicle is punishable by imprisonment in the county jail for not more than one year or in state prison for 16 months or two or three years."
The trial court instructed the jury in CALJIC No. 9.04 (permitting shooting from vehicle) as follows:
"Defendant is charged in count two of having violated section 12034(b) of the Penal Code, a crime. Every person who drives or owns a vehicle and knowingly permits any other person to discharge a firearm from the vehicle is guilty of a violation of Penal Code section 12034(b), a crime.
"A firearm includes any device designed to be used as a weapon from which a projectile may be expelled by the force of an explosion or other form of combustion.
"In order to prove this crime, each of the following elements must be proved: One, a person within a motor vehicle other than the owner or driver discharged a firearm; and, two, the driver of the vehicle knowingly permitted the other person to discharge the firearm."
CALJIC No. 1.21 ("knowingly" - defined), as read to the jury states:
"The word knowingly means with the knowledge of the existence of the facts in question. Knowledge of the unlawfulness of any act or omission is not required. A requirement of knowledge does not mean that the act must be done with any specific intent."
CALJIC No. 3.30 (concurrence of act and general criminal intent), as read to the jury, states:
"In the crime of shooting at an occupied motor vehicle, as charged in count one, and the crime of permitting another to shoot from a vehicle, charged in count two, there must exist a union or joint operation of act or conduct and general criminal intent. [P] General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful."
CALJIC No. 2.01 (sufficiency of circumstantial evidence - generally), as read to the jury, states:
"However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the defendant is guilty of the crime, but cannot be reconciled with any other rational conclusion.
"Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt.
"In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which the inference necessarily rests must be proved beyond a reasonable doubt.
"Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendants guilt and the other to his innocence, you must accept the interpretation that points to the defendants innocence and reject the interpretation that points to his guilt.
"If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
Appellant contends:
"The problem with the inclusion of Count 2 within CALJIC 3.30 is that the crime of Permitting Another to Shoot From a Vehicle requires a specific mental state-that of knowledge-or knowingly permitting the discharge, coupled with the power or ability to prevent the discharge of the weapon.... [P]...[P]
". . .CALJIC 3.30, as given, is insufficient to describe the intent necessary for permitting an occupant to discharge a weapon, because the instruction omits the element of knowledge and defines the crime as a general intent crime when the crime actually requires a specific mental state and the power or ability to prevent the occupant from discharging the weapon.
"Similarly, CALJIC 2.01 should not have been given because it failed to relate the evidence to the specific mental state required for the crime of permitting an occupant to discharge a weapon. CALJIC 2.02 should have been given instead, because CALJIC 2.02 is designed to relate the evidence to the specific mental state required for the crime. CALJIC No. 2.02 was designed to be used in place of CALJIC No. 2.01 when the defendants specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. (People v. Honig (1996) 48 Cal.App.4th 289, 341, citing use note to CALJIC No. 2.02.) In addition, CALJIC 3.31.5 [mental state] should have been given, because such instruction also relates the crime to the specific mental state required in the perpetrator. [P]...[P]
". . . The failure to instruct adequately on the knowledge requirement is particularly pernicious in this case, where Appellants conviction rests not on his having discharged the weapon himself or having aided and abetted the discharge of a firearm, but on his knowing omission or failure to act. Only in one place-CALJIC 9.04-were the jury instructed that to sustain a conviction of the crime, the defendant must have knowingly permitted an occupant to fire the weapon. The other instructions diminished the importance of the mens rea required for the crime, because the other instructions repeated that knowledge of the unlawfulness was not required, that only general criminal intent was required. Although omissions in one instruction may often be cured by another, giving instructions that are contradictory or so inconsistent as to confuse the jury may be reversible error. (People v. Ranney (1931) 213 Cal. 70, 80, 1 P.2d 423; Witkin, California Criminal Law, 3d ed. 5: Criminal Trial, sect. 666.)"
A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate amplifying, clarifying, or limiting language. (People v. Farley (1996) 45 Cal.App.4th 1697, 1711.) Appellant has not cited and we have been unable to find any such request in the trial record. Assuming arguendo appellant made such a request, we conclude no miscarriage of justice due to instructional error occurred in the instant case. In People v. Laster (1997) 52 Cal.App.4th 1450, 1467-1469, review denied June 18, 1997, Division Two of the Court of Appeal, Fourth Appellate District, held the offense of permitting another to discharge a firearm from a vehicle (§ 12034, subd. (b)) is committed merely by doing the proscribed act. While the defendant must know someone else is discharging a firearm from a vehicle, there is no requirement that the defendant must intend the discharge. One may knowingly assist another to commit a crime, yet lack a specific intent that the crime be committed. A fortiori, one may knowingly permit another to discharge a firearm, yet lack a specific intent that the firearm be discharged. Moreover, the requirement that the defendant "knowingly" permit the discharge of the firearm equally excludes a negligent or involuntary permission. CALJIC No. 3.31.5 gives a court two options-it may specify the mental state required for each crime or it may simply instruct that the required mental state is included in the definition of the crimes set forth elsewhere in the instructions. Where, as here, the separate instructions defining the crime included the requirement that appellant act "knowingly," there is no need to restate this in CALJIC No. 3.31.5.
With respect to CALJIC No. 2.02 (sufficiency of circumstantial evidence to prove specific intent or mental state), the instruction states:
"The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Counts _____, ______, ______ and _____], [or] [the crimes of _____, ______, _____, which [is a] [are] lesser crimes],] [or] [find the allegation _____ to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion.
"Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
CALJIC No. 2.02 was designed to be used in place of CALJIC No. 2.01 (sufficiency of circumstantial evidence-generally) when the defendants specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. CALJIC No. 2.02 should not be given where the evidence is either direct or, if circumstantial, is not equally consistent with a conclusion of innocence. Further, it should not be given simply because the incriminating evidence is indirect. Rather, it is appropriate only when proof of guilt depends upon a pattern of incriminating circumstances. (People v. Honig (1996) 48 Cal.App.4th 289, 341.) CALJIC No. 2.01 is the more inclusive instruction on circumstantial evidence than CALJIC No. 2.02. Use of CALJIC No. 2.01, rather than CALJIC No. 2.02, is proper unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state. Where mental state is not the only element of the case resting on circumstantial evidence, the trial court does not err in reading the more inclusive instruction. (People v. Marshall (1996) 13 Cal.4th 799, 849, 919 P.2d 1280.)
The offense described in section 12034, subdivision (b) is a general intent crime. Even a general intent crime ordinarily requires scienter, i.e., guilty knowledge of the facts which make the act a crime. A knowledge requirement is distinct from a specific intent requirement. (People v. Laster, supra, 52 Cal.App.4th at pp. 1468-1469.) Therefore, the specific intent aspect of CALJIC No. 2.02 has no application here. With respect to the "mental state" aspect of CALJIC No. 2.02, CALJIC Nos. 1.21, 2.01, 3.30, and 9.04-taken together-essentially serve the same purpose and enunciate comparable legal principles. The trial court gave standard CALJIC instructions that adequately covered the points now raised by appellant on appeal. The trial courts failure to give CALJIC Nos. 2.02 and 3.31.5 did not amount to a miscarriage of justice under all of the facts and circumstances of the instant case.
IV.
FAILURE TO STRIKE APPELLANTS PRIOR FELONY CONVICTION
Appellant contends the trial court erred by failing to strike one of his prior felony convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628.
Defense counsel stated at the March 28, 2002, sentencing hearing:
"MR. OLMOS [defense counsel]: The only other two items and probably the most important is we would still ask the Court if the Court would be willing to strike one of his prior felony convictions that was alleged in the information.
"And this is primarily based on the testimony of one of the complaining witnesses, Mr. Dennis Mayo. If the Court remembers, Mr. Mayo when he testified really did not attach any blame to Mr. Houston for the events that occurred which brought about this trial. And he tended to blame the co-defendant . . . for the entire incident. And, in fact, even blamed the co-defendant for a previous contact the night before the incident occurred.
"And in addition to that, the other complaining witness, Mr. Willie DeHoward, if the Court remembers, testified, and I think it was backed by Mr. [Mayo] that Mr. DeHoward was actually trying to contact Mr. Houston first and chased him down about four blocks down the street in Tulare to talk about some incident. And then they went their separate ways. And its just unfortunate that a couple of minutes later they had a second encounter.
"And because Mr. Houston was not convicted of a serious felony, but a nonserious felony, just permitting the passenger to shoot from his vehicle, we would ask that the Court would strike or alleviate or take out one of the strikes and thereby giving him instead of looking at 26-to-life, which is being recommended by the probation report, just give him double the aggravated term of three years to six, plus the one-year enhancement, for a total of seven years."
The trial court subsequently ruled:
"With respect to the defendants request . . . that the Court use its discretion under People versus Romero to strike one of the strikes, the Court is denying that request. [P] . . . [P]
"When youre shooting guns on public streets in the middle of the day, you are involving the whole community. And you are endangering the lives of innocent people with guns. And we have had too many deaths in this community from that kind of behavior. And this Court has a duty to protect public safety. And people who think that guns are an extension of their right hand need to think again.
"So the Court is not going to strike any strikes. The Court is in total agreement with the People that the nature and recency of the defendants crimes, as well as the kinds of crimes for which hes been previously committed, the opportunities he has been given to reconform his behavior as recently as 1998 by this Court on the violation of Penal Code section 246.3 indicate that a substantial period of incarceration is necessary to protect the people from the dangerous conduct that the Court witnessed and heard about in the course of this trial.
"The Court is setting the term at 25 years to life, pursuant to section 1170.12(c)(2). And the defendant having been found guilty under 12034(b). The Court is also adding one year by reason of the special allegation under section 667.5(b) having been found true. The total term is set at 26 years to life."
Section 1385, subdivision (a) states:
"The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading."
Trial courts retain the power to dismiss prior strikes in the interest of justice under section 1385. In exercising their discretion under section 1385, trial courts must consider both the defendants constitutional rights and societys interests, as represented by the People. This requires the court to consider whether, in light of the nature and circumstances of his or her present felonies and prior serious and/or violent felony convictions, and the particulars of his or her background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he or she had not previously been convicted of one or more serious and/or violent felonies. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434; People v. Garcia (1999) 20 Cal.4th 490, 497-498, 976 P.2d 831.)
A trial courts decision to strike prior felony convictions is subject to review under the deferential abuse of discretion standard. Under that standard, an appellant who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. Under California law, it is not enough to show that reasonable people might disagree about whether to strike one or more of defendants prior convictions. Where the record demonstrates the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. (People v. Zichwic (2001) 94 Cal.App.4th 944, 959-961.)
A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence. To be sufficient, evidence must be "substantial." Evidence is substantial only if it reasonably inspires confidence and is of solid value. By definition, "substantial evidence" requires evidence and not mere speculation. In any given case, one may speculate about any number of scenarios that may have occurred. A reasonable inference, however, may not be based on suspicion alone or on imagination, speculation, supposition, surmise, conjecture, or guess work. A finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities without evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.)
Appellate review of a trial courts decision on a motion to strike priors is not de novo. The superior courts order is subject to review for abuse of discretion. Although the standard is deferential, it is not empty. While variously phrased in various decisions, it asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and relevant facts. Generally, sound discretion is compatible only with decisions controlled by sound principles of law, free from partiality, not swayed by sympathy or warped by prejudice. All exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. (People v. Cluff, supra, 87 Cal.App.4th at p. 998.)
In ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the three strikes law or in reviewing such a ruling, the court in question must consider whether the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he or she had not previously been convicted of one or more serious and/or violent felonies. Such an analysis entails an examination of the nature and circumstances of defendants present felonies, his or her prior serious and/or violent felony convictions, and the particulars of defendants background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161, 948 P.2d 429.)
In the instant case, appellant was 23 years old at the time of sentencing. He was a member of the Bloods criminal street gang and Willie DeHoward was known as a member of the rival 209 MOB Crips criminal street gang. Appellants brother, DeAndre Huston, was the victim of a homicide and members of the 209 MOB Crips gang were believed to be the assailants. Appellants prior record included a 1995 juvenile adjudication for robbery, resulting in a grant of probation; 1997 convictions for Vehicle Code violations, resulting in a fine; 1998 convictions for discharging a firearm in a grossly negligent manner ( § 246.3), misdemeanor willful infliction of corporal injury (§ 273.5), and vandalism, resulting in three-year grant of probation and one year of local jail time; 1998 convictions for Vehicle Code violations, resulting in a three-year grant of probation and fine; and a 1999 conviction for willful infliction of corporal injury while armed with a firearm ( § 12022, subd. (a)), resulting in a two-year state prison term and the revocation of two prior grants of probation. In September 2000 and June 2001, appellant committed parole violations.
In an interview with the probation officer, appellant was "very vague" about his drug and alcohol use and claimed he last consumed alcohol in June 2001. He denied past or current use of any controlled substance. Appellant said he attended Tulare Adult School but never obtained a diploma or G.E.D. certificate. He said he had two minor children as the result of two lengthy relationships with two different women. Appellant reported he had five brothers and five sisters and that his surviving siblings resided in Tulare, California. Appellant said he worked for a Hanford dairy for two months in early 2001 but did not report any other employment. The probation officer found no circumstances in mitigation but found a number of circumstances in aggravation:
—Appellant engaged in violent conduct indicating a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1));
—Appellants prior convictions as an adult were numerous (Cal. Rules of Court, rule 4.421(b)(2) );
—Appellant had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3));
—Appellant was on parole when the crime was committed (Cal. Rules of Court, rule 4.421(b)(4)); and
—Appellants prior performance on parole was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)).
The probation officer also indicated that appellant was a known gang member but appellant denied the allegation at sentencing and the court struck the allegation from the report.
Here, as the People point out, appellants criminal conduct occurred over a series of years and was interrupted only by periods of incarceration. His first strike was for discharging a firearm in a grossly negligent manner. His second strike was for willful infliction of corporal injury while armed with a firearm. Appellant also sustained a conviction for domestic violence and juvenile adjudication for robbery. His current conviction again involved the discharge of a firearm, this time in a place and manner that subjected the public-at-large to grave risk of harm. The well-recognized purpose of the three strikes law is to provide increased punishment for current offenders who have previously committed violent or serious crimes and have therefore not been rehabilitated or deterred from further criminal activity as a result of their prior imprisonment. (People v. Leng (1999) 71 Cal.App.4th 1, 14.) The state has a compelling interest in controlling crime and preventing and punishing recidivism. Recidivist sentencing statutes are used to protect the public when a defendants criminal conduct has been proven to be immune from ordinary modes of punishment. The three strikes law is the articulation of a parallel sentencing scheme for specifically described recidivists. The focus of the law is on the defendants conduct, i.e., whether the defendant has not in the past obeyed the law. (People v. Fowler (1999) 72 Cal.App.4th 581, 584.)
Here, even a cursory reading of the probation report and sentencing courts remarks reveals a careful consideration of the nature and circumstances of appellants present felony and prior felonies, as well as judicial reflection upon appellants background, character, and prospects. (People v. Ortega (2000) 84 Cal.App.4th 659, 668.) In view of all of the facts and circumstances, we cannot say the sentencing court should have deemed appellant outside the schemes spirit, in whole or in part, and hence should have treated him as though he had not previously been convicted of one or more serious and/or violent felonies. The sentencing court properly exercised its broad discretion, declined to strike one or more priors, and imposed an indeterminate term of 25 years to life in state prison.
V.
CRUEL AND UNUSUAL PUNISHMENT
Appellant contends his sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.
He specifically argues:
"... Appellant is a recidivist offender, to be sure, but his current crime was non-violent; it was a status offense-that is, he was an operator of a vehicle from which someone else discharged a weapon without Appellants having intervened to prevent the act. Furthermore, there were mitigating circumstances involving the death of his brother that surrounded the commission of the crime. Appellant recognizes that this Eighth Amendment claim flouts the face of conventional California authority. However, to preserve his claim for eventual federal review, Appellant registers his objection to the imposition of Three Strikes as violative of his Eighth Amendment right to be free of cruel and unusual punishment."
The Eighth Amendment to the United States Constitution states:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Article I, section 17 of the California Constitution states:
"Cruel or unusual punishment may not be inflicted or excessive fines imposed."
In Ewing v. California (2003) _____ U.S. _____ [123 S. Ct. 1179, 1190, 155 L. Ed. 2d 108] the United States Supreme Court held a sentence of 25 years to life in prison, imposed upon an ex-felon for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and does not violate the Eighth Amendments prohibition on cruel and unusual punishments.
California courts construe the state constitutional guarantee against cruel and unusual punishment separately from its federal counterpart. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135-1136.) A criminal defendant bears a considerable burden to prove the sentence imposed is unconstitutional. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661-1662.) Moreover, such challenges are rarely successful. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) In People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433, review denied October 2, 2002, Division Two of the Court of Appeal, Fourth Appellate District, held an ex-felons sentence of 25 years to life, under the three strikes law, for stealing a magazine did not constitute cruel and unusual punishment in violation of the California Constitution. The court stated in relevant part:
As a general matter, the punishment imposed by Californias three strikes law is not so disproportionate that it violates the prohibition against cruel or unusual punishment. (People v. Cluff, supra, 87 Cal.App.4th at p. 997.)
"In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis... First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind."... Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88.) [P] . . . [P]
"Defendants punishment was imposed because of his recidivism. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.) Society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repreat offender, then society is warranted in segregating that person for an extended period of time.... (People v. Martinez (1999) 71 Cal.App.4th 1502, 1515 . . .. [P] . . .
"The second prong of the . . . analysis involves a comparison of the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. (People v. Thongvilay, supra, 62 Cal.App.4th at p. 88.) . . . However, as the court pointed out in People v. Ayon (1996) 46 Cal.App.4th 385, 400, this step is inapposite to three strikes sentencing because it is a defendants "recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendants] punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons."... (People v. Cline, supra, 60 Cal.App.4th 1327, 1338.)
"As for the third prong, defendants interjurisdictional comparison demonstrates that Californias Three Strikes law is among the most severe recidivist schemes in the nation. That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require "conforming our Penal Code to the majority rule or the least common denominatior of penalties nationwide."... Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
"Defendants sentence of 25 years to life, under Californias recidivist statute, for felony petty theft does not constitute cruel or unusual punishment." (People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433.)
In People v. Dillon (1983) 34 Cal.3d 441, 194 Cal. Rptr. 390, 668 P.2d 697, the California Supreme Court held a sentence can be unconstitutionally cruel and unusual if it is grossly disproportionate to the offenders culpability. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) The holding in Dillon was premised on the unique facts of that case. Since the determination of the applicability of Dillon in a particular case is fact specific, the issue must be raised in the trial court. When the matter is not raised in the trial court, the issue of cruel and unusual punishment is deemed waived on appeal. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In the instant case, appellant has not cited and we have been unable to find any assertion of cruel and unusual punishment in the superior court. Therefore, the issue must be deemed waived on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BUCKLEY, J., WISEMAN, J.