Opinion
H022229.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. DARREN ANTHONY JOSEPH, Defendant and Appellant.
A jury found appellant guilty of one count of attempted premeditated murder on Leslie Mulvey, his former wife and mother of his child Alexis, and one count of kidnapping Mulvey to commit a sexual offense. The jury also convicted appellant of one count of infliction of corporeal injury on Mulvey, one count of child endangerment of Alexis and one count of kidnapping Alexis. The jury found true allegations that some of these offenses were committed with the personal use of a knife and with personal infliction of great bodily injury in a domestic violence situation. (Pen. Code, §§ 187/664, subd. (a); 209, subd. (b); 273.5, subd. (a); 273.2, subd. (a); 207, subd. (a); 12022, subd. (b)(1); 1203, subd. (c)(3), 12022.7, subd. (d).) Appellant was sentenced to imprisonment for 13 years plus a life term. Appellant contends that the trial court erred in ruling on his motions to substitute counsel and for self-representation, that the trial court committed various instructional errors, that there was insufficient evidence to support his convictions for attempted premeditated murder and the kidnapping of Alexis, that he received ineffective assistance of counsel, and that there was sentencing error. With certain corrections to the abstract of judgment, we affirm. By separate order filed this day, we deny appellants petition for a writ of habeas corpus in In re Joseph, H024523.
Evidence at Trial
On May 8, 1999, Janan Smith was pumping gas at a Chevron station on Dunne Avenue in Morgan Hill. She heard a "blood-curdling," "frantic" scream of a female voice crying, "help me, help me, please." She saw a car moving very slowly straddling the traffic island in the middle of the road. William ODonnell was headed home on his motorcycle when he exited Highway 101 at Dunne Avenue to get gas. He saw the car straddling the median strip. ODonnell pulled up to the passengers window and looked into the car. There was blood all over the inside of the car. Appellant was trying to unfasten his seatbelt and told ODonnell to "stay away." Appellants former wife, Leslie Mulvey, was yelling something incomprehensible and seemed semi-conscious. Appellants four-year-old daughter Alexis was screaming. Appellant did not seem to be concerned about the others in the car. He got out of the car and told ODonnell "leave me alone." He started to walk away. An onlooker asked him where he was going and he replied, "Im out of here. I didnt do anything. She did it all."
Someone yelled, "Hes getting away." A construction worker, who had stopped near what he thought was a car accident, ran after appellant. Appellant had walked back to the freeway off ramp. The construction worker yelled to appellant that he had been involved in an accident and should turn around and come back. Appellant stopped, turned around, and assumed a boxers stance as if to protect himself. He said, "that was my wife and baby," put his hands down, and returned. As arriving officers took appellant into custody, he was heard to protest in a loud and agitated voice, "I didnt do anything."
Mulvey got out of the car through the open passengers side door and helped Alexis out of the car. She held Alexis, put her down, and collapsed. People from the crowd rendered medical assistance to Mulvey and took care of Alexis.
Mulvey had stab wounds in her left bicep, wrist, hand, cheek, left rear shoulder, under her left arm, in her sternum and on her right knee. She was in the hospital four days. The radial nerve of her left arm was severed, requiring nerve regeneration surgery and many months of rehabilitation. Appellant had a tiny cut on the little finger of his left hand and a laceration of the web between the thumb and index finger of his right hand that was opined to be from his hand slipping off his knife. He had reinforced packing tape wrapped around the sock he was wearing.
Inside the car, police found a knife, a Polaroid camera and film, tape, cards, and sunglasses appellant had purchased earlier that day. There were extensive bloodstains all over the front seat area.
Although the crimes of which appellant was convicted occurred May 8, 1999, there was a great deal of evidence at trial about what had happened earlier in appellants relationship with Mulvey. Appellant and Mulvey were married in 1994. After both were laid off, they moved to Davis, California, so Mulvey could attend school. Their daughter Alexis was born in 1995. Although appellant and Mulvey had drug problems, Alexiss birth motivated Mulvey to stop drinking alcohol, smoking and using drugs. Appellant and Mulvey separated, and Mulvey moved with Alexis to her parents home in Morgan Hill. Mulvey and appellant divorced in 1997. Appellant continued to use drugs and, as a result, was incarcerated for much of 1997 and 1998.
In November 1997 Mulvey told appellant she would bring Alexis to his familys house so he could see her. At the last minute, she telephoned appellant and said she would not be bringing Alexis. In response, appellant left three telephone messages for Mulvey at her place of work. In one message, appellant said: "Hey Les, this is Darren. I want you to know that youre a stupid ass bitch. Im going to tell you one thing. Youre going to pay dearly for what you did. This — this is very hurtful stuff that youre doing with Alexis and stuff like that. And if you put your friends and other people in front of Alexis, youre — youre — youre fucking sorry. I just wanted to let you know that I dont have nothing to do with you. As a matter of fact, I want you to take my name off your voice mail and dont use my name at your job because its not your name anymore and youre sorry and one of these days youre going to pay dearly."
In a message left within an hour of the first, appellant said: "Im going to be calling to make sure that my name is taken off of there [the voice mail]. And if my name is not taken off of there, Les, youre going to fucking pay. Because youre a . . . fucking sorry piece of shit human being to be a mother or any fucking thing to Alexis. Because if your fucking friends are going to come before my child youre fucking sorry. Okay. Bye."
In appellants third message, about 20 minutes later, he said: "One more thing, whore, I want my God damn kid and I dont want you to — to be there Saturday. You better find somebody to bring Alexis to me. Okay. Bye."
At the urging of her friends, Mulvey obtained a temporary restraining order that became permanent in January 1998. The order forbade appellant from making direct or indirect contact with Mulvey and from being within 300 yards of her.
In August 1998, a social worker called Mulvey and told her appellant wished to resume visitation with Alexis. Appellant wrote to Alexis, who could not yet read. The tenor of this letter made Mulvey feel she could be safe around appellant. For Halloween 1998, Mulvey took Alexis to drop in on appellants family at his aunt Cynthia Barretts house to see them and find out how appellant, who was not present, was doing. The Barretts were the custodial grandparents of a boy, Leon, who was close to Alexiss age. Mulvey and Alexis spent time at Thanksgiving and Christmas with the Barretts and Leon.
By February 1999, appellant was living in a residential recovery program called Sober Living Environment (SLE). When Mulvey stopped by the Barretts on Alexiss birthday, appellant telephoned and spoke to Mulvey. They began having increasingly frequent telephone conversations. In April 1999, appellant and Mulvey were both at Leons birthday party at a restaurant in San Jose.
Mulvey, Alexis and appellant began to get together. Mulvey explained to appellant and his family she intended to provide Alexis with a father but not resume her own relationship with appellant. She testified "I had this vision in my head where, you know, parents that are separated would — we would end up on a soccer field watching Alexis play, we could get along as buddies." When appellant attempted to kiss Mulvey, she told him, "Lets not go down that road again because it doesnt work." About this time, Mulvey discussed with appellant her parents upcoming move to Florida. She said she was thinking of going with them and suggested appellant also move to Florida as "friends." She said he had "nothing to keep him" in California.
From April to early May appellant and Mulvey had many telephone conversations and face-to-face contacts. Appellant expressed interest in getting back together with Mulvey, and often tried to kiss her or grab her buttocks or breasts. She told him she did not want him to do this, and he seemed to "lighten up a little bit." Appellant asked Mulvey and Alexis to accompany him to a Narcotics Anonymous meeting in San Jose. Because in 1997 Mulvey had dated a former member of that group, and she did not want appellant to find this out accidentally, she told him about the relationship. He questioned her about it until she told him how many times she had had sex with the former member.
Some time later, Mulvey found a composition book appellant was using to record his thoughts as part of the SLE rehabilitation program. In it, appellant had written: "This letter what Im writing is to God. God, why did Leslie sleep with this guy? God, please take the pain out of my heart. God, help me to understand why because, Lord, I had sex too but only two times. She had it a couple dozen times or more. And she swore up and down she was saving herself for marriage. She would not sleep with no more black guys. But she did. She put a restraining order on me but sleep with this guy because he had a house, directed movies and his parents had money. God, is Leslie all about money or impressed by someone who has material things? Is that all she sees in a person. I love her so much but I have to work for everything with her it seems, but someone with an education, money or material things can easily influence her to having sex. Or she easily is infatuated with the person or their talk and she spreads her legs quick. God, my last question to you is please, Lord, please, Lord, please, Lord, give me an answer: Is Leslie meant for me again or is she confused? Are we going to ever have sex soon or later down the road? Or Im meant to be by myself? Or is there a good woman out there for me I just have to hang in there to see. God, give me the strength to hold on, to live to be sober, to be there for my daughter if nothing else. And at last but not least forgive me for my sins so I can be healthy. I dont want to relapse or get angry or go to jail."
In late April 1999, Mulvey, appellant, Alexis and Leon spent the day in Carmel and Monterey. Appellant again raised the possibility of a reconciliation but Mulvey refused to consider it. At the end of the day, appellant asked Alexis if she would like to see her mother and father kiss. When Alexis said she would, Mulvey permitted appellant to kiss her on the cheek.
Appellant told Mulvey he had a "big surprise" for her for Mothers Day. The day before Mothers Day 1999 was Saturday, May 8, and Mulvey told appellant she would see him that day. That morning, appellant purchased a Polaroid Instant Camera, a package of Polaroid greeting cards, film, a knife, reinforced tape, and a pair of sunglasses at a Kmart in San Jose. Mulvey drove her parents in their 1996 Cougar to the San Francisco airport where they left on a trip. Mulvey attended a childs birthday party with Alexis and then drove to the Barretts house where she picked up appellant and Leon. The four shopped and ate at a mall and Mulvey dropped Leon off at the Barretts. Appellant went inside and returned to the car carrying a brown paper bag that he placed on the floorboards at his feet.
Mulvey got onto Highway 101 and drove southbound to take appellant to SLE in south San Jose. Appellant said he wanted to talk to Mulvey about something. He told her he did not want her to be with any other men, did not want to have anyone else disciplining Alexis or for her to call anyone else "Daddy." Mulvey tried to assure appellant that there were no men in her life. He cut her off, appeared angry, and said "Im serious." He took a large knife from his right side and placed it on his right thigh. He held it palm down in his right hand.
Mulvey saw a call box on the shoulder of the freeway. She told appellant that she should call someone because he was not acting like himself. He did not respond. When she started to veer onto the shoulder of the road toward the call box he said, "Keep driving." Mulvey testified the knife "remained right on his thigh right here so any time — I believed that at any time that I didnt do what he said he would stab me." She continued to drive south on Highway 101.
Appellant told Mulvey that she thought she was better than everyone else and could tell everyone what to do. He complained that she had told him that she would not have sex with him or anyone until she was married again but then had sex with another man.
Appellant said, "This is the plan. . . . Youre going to pass Blossom Hill Road youre going to go to your [parents], Im going to give it to you and then the camera in the bag is the insurance that youre not going to tell anybody. . . . And if you do tell anybody, I can have someone get you." Appellant became increasingly angrier, telling Mulvey he would get her one way or another, and could throw a Molotov cocktail in her house or her car, or have her brother "taken out." Mulvey drove past the Blossom Hill Road exit and appellant continued to hold the knife on top of his thigh.
Alexis, in the back seat, started spitting and kicking the back of appellants seat. Mulvey pretended Alexis had dropped something and leaned back to undo the belt of the child restraint seat out of concern that Alexis might be trapped if the situation worsened. Appellant told Mulvey, "You better keep her quiet." Appellant told Mulvey, "Better hope Tommy [Mulveys brother] is not there."
Appellant said, "After this youre going to take care of this little girl, youre going to be mine and youre going to drop me back off . . . and Im just going to walk away." Appellant said "he had it planned for a week" and would not allow Mulvey to "mess it up."
The car neared the East Dunne exit off of Highway 101. A left turn after taking this exit led to Mulveys parents house; a right turn led to the Morgan Hill Police Department. Mulvey took the exit and got into the left lane, as if headed for her parents house, stopping at the intersection. Mulvey realized appellant would probably stab her once she made her move, but she didnt know what else to do. She gunned the engine and turned right, headed for the police station. The car swerved across the right lane into a dirt area. Mulvey testified, "thats when hes all `What the — and then he — you know, he started the stabbing." Mulvey lost control of the car and it careened into a median divider. As appellant started to stab Mulvey, she struggled with him, moving into the gap between the two front bucket seats to protect Alexis who was crying in the back. At one point, Mulvey grabbed the knife from appellant, but he quickly regained it and continued to stab her. Mulvey reached over and opened appellants door, screaming for help. Appellant dropped the knife, got out of the car, and started to walk away.
Mulvey took the keys from the ignition, got out of the car from the open passenger side door, took Alexis from the car and collapsed.
Appellant testified about the history of his relationship with Mulvey and the events of May 8, 1999. He said he and Mulvey married after meeting at work despite her parents objections to their interracial relationship. He said Mulvey sometimes physically assaulted him, and they both used drugs. After their separation, he came to her parents home on Christmas Day under the influence of marijuana, and Mulvey told him the marriage was over. He had little contact with Mulvey during 1996 except for when he saw her in family court in a case involving Alexis. In 1997 he tried to resume his relationship with Alexis. He was not interested in developing a relationship with Mulvey. He did rely on Mulvey for transportation because he did not have a car. He felt Mulvey unfairly interfered with his attempts to reestablish a relationship with his daughter.
To explain the angry phone messages appellant left for Mulvey in 1997, appellant testified that he was angry when Mulvey failed to bring Alexis to meet his family, some of whom had never seen Alexis, after she had repeatedly assured him she would do so. He said he apologized to her the next day.
Appellant testified Mulvey told him she had always loved him and wanted to get back together. They discussed her dropping the restraining order. He denied making any physical advances to Mulvey, but said she wanted to "get intimate and stuff." He said she suggested they could do that at her parents house while they were away, but he declined because he did not want to have sex with her until they had some counseling. Later, Mulvey said she had changed her mind about resuming their relationship. She did not want to get counseling, drop the restraining order, or go to court to arrange for visitation between appellant and Alexis. This hurt appellant, who discussed the situation with his counselor and his recovery sponsor.
Toward the end of April, appellant and Mulvey had some enjoyable times together, but then they would have disagreements. They would argue over the past, or over things Mulvey did with Alexis.
Appellant testified that on Saturday, May 8, 1999, he took his first paycheck from a new job and went to Kmart. He purchased a Polaroid camera, film and cards to take photographs at a restaurant during a Mothers Day dinner with Mulvey. He bought the knife for protection from a perceived enemy who lived in the neighborhood of his Narcotics Anonymous meetings, and purchased the tape to fasten the knife to his leg. He was unsuccessful at taping the knife to his leg, so he tucked it in the waistband of his pants, covering it with his shirt. He attended the Narcotics Anonymous meeting after leaving Kmart and returned to the Barretts. When Mulvey picked him up that afternoon for the shopping trip with Alexis and Leon, he left his Kmart purchases at the Barretts, hiding the knife in a drawer. When they returned from the mall, he retrieved these items and took them out to the car.
Appellant testified Mulvey was going to take him back to SLE. They started conversing, and Mulvey began to bring up "all the stuff that we had argued about." Appellant said the conversation "was basically my concerns and how — you know, I was interacting with Alexis and all the broken promises and stuff like that. And it — just basically the disrespect that — she just was, like, just blurted things out to me to create an argument and stuff." Appellant told Mulvey he wanted to talk to her about "some of [his] concerns," including her plan to take Alexis out of state. As appellant expressed his concern about these and other matters, he pulled out the knife. When asked to explain why he did this he testified, "Just the mental anguish and all this stuff that was going on the last month just — collided in my mind. And I just wanted her to . . . just to respect me. And that I love my daughter. And I want to be around her. And my concerns that shes going with these guys and shes just giving Alexis to these guys . . . ." "I just wanted her to listen to me. And stuff." He displayed the knife so "she would respect me. She would listen to me. She would understand the pain that Im going through. And stuff." He did not feel the need to defend himself.
Appellant testified Mulvey continued to drive and passed the exit to take appellant to SLE. Appellant denied threatening Mulvey in any way. He said, "I had [the knife] on my leg. I just pulled it out and I told her Im serious about what Im saying. About Alexis. And everything. And then I just put it up . . . ." Appellant denied Mulvey tried to pull off the road to use the call box. Appellant denied threatening to rape Mulvey, hurt her brother or throw Molotov cocktails. He denied saying he was going to use the camera to blackmail her. He said Alexis was just sitting in her car seat the entire time.
Appellant testified that after he expressed his concerns, Mulvey expressed anger over appellants sexual behavior. He said just before Mulvey took the Dunne Avenue exit off the freeway, "she just looked at me and her last words to me with were `I cant believe that you slept with those two women. " Appellant testified he did not know why Mulvey took the Dunne Avenue exit. He said he thought they were going back to SLE. Appellant testified that after the car stopped on the median strip, "When she crashed I just reacted to them, like, `What are you doing? What are you doing? And then I looked in the rearview mirror and I seen traffic because its an overpass and I see traffic coming down and then I just reacted. . . . I went into my pocket and I grabbed the knife and — stuff. . . . Because she was trying to kill us."
Appellant was asked, "Why do you feel like you needed to pull a knife out and stab your wife?" Appellant answered, "When she crashed I just reacted to the crash." Appellant acknowledged that neither he nor Alexis were injured in the crash. When asked, "what were you doing with the knife?" appellant said he was "just confused, just — dazed." He said he did not remember stabbing Mulvey. He testified, "Everything was just a — a blurry. I couldnt hear. I wasnt concentrating on people or anything." When he "saw blood everywhere" he was "just shocked." He first became aware of the blood when he and Mulvey "started fighting." He said they were "just swinging our arms" but he had the knife.
Appellant saw someone approach the car. Appellant got out of the car and started to walk. He was in a daze. He was followed by a man who told him to return to the scene. When he returned, he was arrested.
Defense witness Dennis Cavaco testified he had been a neighbor of appellant and Mulvey. He had known appellant for about 12 years and had never known appellant to brandish a knife or be violent. He believed appellant was very honest.
First Motion for Substitution of Counsel
Appellant moved to substitute his appointed attorney at the beginning of his trial and again at the close of the prosecutions case. Appellant contends these Marsden motions were improperly denied.
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.
"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 attorneys 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]." (People v. Crandell (1988) 46 Cal.3d 833, 854, 251 Cal. Rptr. 227, 760 P.2d 423; People v. Hart (1999) 20 Cal.4th 546, 603, 976 P.2d 683.)
The Supreme Court "established in Marsden that the trial court must give the defendant the opportunity to explain the reasons for desiring a new attorney. (Marsden, supra, 2 Cal.3d at pp. 123-125.) `The trial court cannot thoughtfully exercise its discretion in this matter without listening to [the defendants] reasons for requesting a change of attorneys. (Id . at p. 123.) Accordingly, `When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendants right to assistance of counsel. [Citations.] [Citation.]" (People v. Smith (1993) 6 Cal.4th 684, 690-691, 863 P.2d 192; People v. Barnett (1998) 17 Cal.4th 1044, 1085, 954 P.2d 384.) Appellant contends that at his first motion for substitution of counsel the court failed to conduct adequate inquiry, and there was evidence counsel failed to communicate with appellant, failed to prepare and investigate the case, and had a "defeatist attitude" toward the case.
On July 10, 2000, the court announced "this matter is here for trial today and I understand there will be some in limine motions before we begin." Defense counsel told the court appellant "has an interest in bringing a Marsden motion, and I also believe based on our recent conversation that he has an interest after the Marsden motion depending on the outcome of attempting to enter a Faretta waiver." The court invited appellant to tell the court "everything that you want to say" on the subject. Appellant stated "this is like my seventh time trying to come in to do the Marsden hearing, and this is the first time I made it into the courtroom after seven tries in three weeks." Appellant said defense counsel was the third attorney assigned to the case and it was transferred from "south county." He complained that he and his family had called defense counsel many times but "couldnt get a hold of [defense counsel]." He said defense counsel "always has someone standing in for him" in court. He told the court defense counsel had come to see him in April and stayed for 15 minutes. "The conversation basically revolved around what happened, the incident that brought me here." He said counsel also discussed possible settlement, and that after appellant told counsel that based on his discussions with two other attorneys appellant thought the discussed sentence was "pretty high," counsel asked appellant his pants and shoe size.
Appellant told the court he tried many times to call defense counsel. He said, "I needed to get a psyche report done, contacted other witnesses, suppress statements, police missing evidence that was supposed to be in the evidence thing, thats not there, research in other cases, prepare for trial." Appellant told the court one time defense counsel came to see him a week and a half later than he said he would. Another time counsel came on a Tuesday when he had told appellant he would come on Monday. Appellant told the court he had "left several other messages saying I wanted to let him know, or seek other counsel, or represent myself." He said, "the only reason he came was because he set it for trial." Appellant said "Theres a couple of my roommates who gave statements, and [defense counsel] all the time that I was calling him, he never came, but after he set it for trial he tells me, well, these people dont want to testify for you. They are kind of afraid or something." Appellant complained, "I havent seen [the] evidence because he hasnt brought it." He was concerned some money he had at the time of his arrest was missing. He said, "in a period of six months, five months since he had the case, I have only seen him twice for fifteen minutes. The third time he came because I said I wanted a Marsden hearing, then he talked to me for like a half hour." He complained he was transported to court three times in the last week without making an appearance.
The court said, "I understand last time, and the case was on last week. You are absolutely correct. Your attorney and the District Attorney were both sick. That was unexpected. There was a judge ready to go every single day and they were both very ill and there was proof of that."
Appellant complained, "He doesnt have any confidence in me or in this case, and it shows in his demeanor every time we talk." Appellant was concerned because "I was usually doing sixty days on the farm. I went from doing sixty days to looking at life."
The court asked defense counsel to respond. Counsel said that although appellants case was the fifth case he had tried since receiving appellants file, he felt that his experience helped him to know what he was doing and that he and previous counsel had submitted eight investigation requests and obtained funding for investigators to travel pursuing investigative leads. He said he had contacted a number of appellants proposed witnesses. He brought the investigators reports to appellant and explained that some of the witnesses "were clearly avoiding us." He said he had been in frequent contact with appellants relatives, was familiar with the reports, statements and evidence in the case and would not be going to trial if he were not prepared. He said that although the prosecutor had "never . . . shown any interest in settling the case" he discussed the possibility of settlement with appellant to see if he were interested.
Appellant told the court a private attorney had come to see him and said it was "an eight or nine-year case . . . . Twenty two years is too much time. . . . even 10 years is too much time." Defense counsel told the court the private attorney quoted appellant a fee that would not have covered even the investigative expenses counsel had expended. Counsel said he talked to appellant about the case and the possibility of him testifying. He explained he asked appellants sizes in order to provide him suitable clothing for trial. He admitted that "in one of my conversations" with appellant there was some "confusion on my part" in the names and locations of certain witnesses when he spoke to appellant because "I did not have that file before me." He had since reviewed the reports with appellant and offered to make them available to him, an offer appellant declined. As for appellants claim that the arresting officer took some of his cash and did not book it into evidence, defense counsel said, "It is a property issue. It is the subject of cross-examination perhaps." Defense counsel said that although he was busy "I do have the time to spend and prepare my cases." He explained he had not brought a motion to dismiss because "the preliminary examination transcript as it exists supports the charges . . . . It doesnt mean that hes going to be convicted of those charges, but certainly there was sufficient evidence for a holding."
Appellant said he wanted counsel to talk to his family about calls Mulvey had made to them about "things that she would do in order for me to get a life sentence." Counsel said appellant had told him these calls would demonstrate that Mulvey was not afraid of him. He said, "Until just now, I have never heard from Mr. Joseph that those calls were to his mother saying Im going to put your son away forever." Appellant discussed certain witnesses statements he felt should be investigated. Counsel said, "It isnt a surprise at all, but I should also note that those two witnesses statements are not helpful. They talk about a struggle and their statements essentially are that the alleged victim was fighting back, and they are pretty clear that Mr. Joseph was on top of her making pounding motions." He explained, "There are really no statements to be suppressed in this case legally." He said his investigator was still available during the trial to talk to appellants mother and that the case had his "undivided attention" and appellants was "the only case Im working on."
The court said, "After having heard all the statements by the defendant and [his] attorney, I find that [defense counsel] has more than properly and diligently represented defendant, and he will continue to do so, and for that reason the Marsden motion is denied and [defense counsel] will continue to represent you."
Appellant argues "the trial court failed to conduct a genuine and serious inquiry into appellants reasons for seeking substitution [of counsel] and into the willingness and ability of defense counsel to act as a diligent and aggressive advocate for appellant." Appellants July 10 Marsden hearing comprises over 25 pages of transcript. Although the length of the hearing alone is not determinative, a review of the hearing belies appellants claim that the court was not serious or genuine in its inquiry. The court gave appellant ample opportunity to explain his reasons for his dissatisfaction with his attorney, invited counsel to respond to each of appellants complaints, and conducted further inquiry as appropriate. After a thorough review of appellants complaints during these hearings, his counsels responses and the courts comments and ruling, we find no abuse of discretion in denying appellants motion for substitution of counsel.
Appellant contends, "the trial court erred in failing to appoint counsel to represent appellant for the purposes of the substitution motion which was a critical portion of the trial in which appellant was not represented in light of counsels adversarial position and inherent conflict of interest." In the trial court, there was no suggestion that such an appointment might be appropriate. Appellant acknowledges, "the California Supreme Court held that a defendant had no right to appointment of counsel for purposes of making the motion. (People v. Hines (1997) 15 Cal.4th 997, 1024-1025, 938 P.2d 388 . . . .)" Appellant attempts to distinguish Hines because "it does not appear that the Hines Court was faced with a case in which trial counsel took an adversarial position regarding the motion, however, or that the California Supreme Court considered or ruled on a claim that such an approach by trial counsel created a conflict of interest leaving appellant unrepresented during a critical stage of the proceedings."
We disagree with appellants characterization of the record as demonstrating that his interests and trial counsels were adversarial to each other. "Although a defendant may seek and obtain (upon a proper showing) substitute counsel at any stage of the proceeding in trial court [citation], a defendant is not entitled to simultaneous representation by two attorneys, one of whom is challenging the others competence. (People v. Hines, supra, 15 Cal.4th at p. 1024.)" (People v. Barnett, supra, 17 Cal.4th at p. 1112.) Under the circumstances presented here, there was no conflict of interest requiring appointment of counsel for purposes of making appellants Marsden motions.
Motion for Self-Representation
Appellant contends the trial court erred in denying his motion for self-representation. A criminal defendant has a constitutional right of self-representation. (U.S. Const., 6th Amend.; Faretta v. California (1975) 422 U.S. 806, 818-836, 45 L. Ed. 2d 562, 95 S. Ct. 2525; People v. Bradford (1997) 15 Cal.4th 1229, 1365, 939 P.2d 259.) When a defendant knowingly and unequivocally makes a Faretta motion within a reasonable time before the commencement of trial, the court must grant the request. (People v. Welch (1999) 20 Cal.4th 701, 729, 976 P.2d 754; People v. Windham (1977) 19 Cal.3d 121, 127-128, 137 Cal. Rptr. 8, 560 P.2d 1187.) However, if the motion is not timely, the court has discretion to deny it or grant it, and may grant it on condition that the defendant proceed without a continuance. (People v. Windham, supra, 19 Cal.3d 121; People v. Clark (1992) 3 Cal.4th 41, 833 P.2d 561, People v. Rudd (1998) 63 Cal.App.4th 620.)
California courts have declined either to fix a certain number of days before the commencement of trial or to declare the occurrence of a procedural event— e.g., jury empanelment—as the point when a motion automatically becomes untimely. (See People v. Clark, supra, 3 Cal.4th at p. 99.) Rather, courts consider the issue of timeliness on a case-by-case basis. Motions filed on or after the scheduled trial date are routinely deemed untimely. (See, e.g., People v. Burton (1989) 48 Cal.3d 843, 258 Cal. Rptr. 184, 771 P.2d 1270 [date case called for trial and transferred to trial department]; People v. Moore (1988) 47 Cal.3d 63, 252 Cal. Rptr. 494, 762 P.2d 1218 [scheduled trial date]; People v. Horton (1995) 11 Cal.4th 1068, 906 P.2d 478 [day of trial before proceedings commenced]; People v. Perez (1992) 4 Cal.App.4th 893 [during first day of trial].) Courts have also found motions to be untimely when brought before but in close proximity to, or "on the eve" of, the scheduled trial date. (See, e.g., People v. Ruiz (1983) 142 Cal. App. 3d 780, 191 Cal. Rptr. 249) [six days before trial, after parties announced they were ready, and defendant had threatened witnesses]; People v. Clark, supra, 3 Cal.4th 41 [during pretrial motions, when trial date was being continued on day-to-day basis]; People v. Hill (1983) 148 Cal. App. 3d 744, 196 Cal. Rptr. 382 [dicta, five days before trial].)
During appellants first motion to substitute counsel, in the course of a long discussion with trial counsel and the court, appellant said, "I told [trial counsel] this from the beginning, too, I mean, I was coming from my heart. I said, before I let you hand me over to the district attorney on a silver platter, I would rather do it myself. Thats how I feel about it. If Im going to get a life sentence, I rather it come from me, you know, because Ill give it a hundred percent at least defending myself."
After appellants first motion for substitution of counsel was denied, the court took up his motion for self-representation. The court told appellant he would have to fill out a form and answer questions from the court. The court said, "but before we do that even, I want you to understand, first of all, my question is if you represent yourself, are you ready to proceed now, this moment? The district attorney has a number of motions he has filed. You will have to be able to handle those motions. There would be no continuance for this case is set for trial. You will have to behave like an attorney. You will have to know the rules of evidence. You will have to know the law. You will be treated like an attorney, and I think you are making a tremendous mistake." Appellant asked, "I wont even have time to look over the evidence that he has?" The court said "No. The case is set for trial. You will have to start this minute. I think you are making a terrible mistake. Youve got one of the best public defenders in this county." The court established that trial counsel had 14 years of experience and had tried 37 homicide cases. The court reviewed with appellant his areas of dissatisfaction with counsel, and then discussed at length various evidentiary issues appellant would have to be prepared to handle during trial. The court said "Now, [defense counsel] is prepared for that. Im not sure you would be. Thats what Im saying, you really shouldnt be insisting on representing yourself. I cant stop you, but I sure wish you would give it a little more thought."
Then, the following exchange took place:
"[Appellant]: Im just saying today is the first time I have seen him in court.
"The Court: Well, because you havent seen him, he knows more about your case than you think he does from what I hear.
"[Appellant]: Lets proceed.
"The Court: Okay. Lets take a brief recess. We can start with the motions after we take a brief recess."
Appellant characterizes this exchange as showing "appellant asked to represent himself, but his request was ignored by the trial court and he was forced to proceed to trial with [defense counsel] as his attorney." We disagree. The clear inference from this record is that appellant, when he said "Lets proceed," manifested to the court he was abandoning his motion for self-representation. Although the cold record cannot reveal the non-verbal cues, such as a shrug of the shoulders, a nod of the head or a tone of voice that would assist in this interpretation of appellants remark, what followed the exchange does. The court was in the process of conducting the hearing regarding self-representation. The court neither denied nor granted the motion. There was no further discussion of, or request from appellant for, the forms to fill out to complete his request, nor did he appear to object to the conclusion of the hearing. The court recessed briefly and upon reconvening took up the motions in limine. Everyone, including appellant, then proceeded to trial without further reference to the matter. The trial court, and everyone else, apparently interpreted appellants directive "Lets proceed" as a resolution of the motion for self-representation by withdrawal and a decision to accept the courts advice to proceed to trial with counsel. We are satisfied appellant was not denied his right to self-representation.
Appellant contends his withdrawal of the motion for self-representation "was not voluntary because the trial court abused its discretion and deprived appellant of his Fourteenth Amendment right to due process by insisting that as a condition of representing himself appellant must proceed immediately to trial without a reasonable opportunity to prepare." First, it is not clear that appellant decided to withdraw his motion for self-representation because the court said it would not grant him a continuance if his motion were granted. Appellant and the court engaged in considerable further discussion about his case and the general and specific hazards of self-representation after the court said it would not grant a continuance. It would appear the courts description of the intricacies of the evidentiary issues in the case triggered appellants withdrawal of the motion. Second, the court merely determined whether appellant would be asking for a continuance if his motion for self-representation were granted, and indicated what its ruling would be on such a request. The purpose of the timeliness requirement of motions for self-representation is to enable the trial court to investigate the reasons for the Faretta motion and weed out those that are intended only to unjustifiably delay and obstruct the orderly administration of justice. (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Mayfield (1997) 14 Cal.4th 668, 809, 928 P.2d 485.) To determine whether an untimely motion is bona fide or merely a delaying tactic, the trial court should consider "the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (People v. Windham, supra, 19 Cal.3d at p. 128.)
Here, appellant made and then withdrew his motion for self-representation when the case was in a trial department hearing motions in limine with a jury panel summoned for the next day. The court had received ample information relevant to the Windham factors during appellants motion for substitution of counsel immediately preceding his motion for self-representation. It would have been well within the trial courts discretion to deny a continuance request. The trial court did not err in informing appellant that under these circumstances, it would not grant him a continuance if it were to grant his motion for self-representation.
Second Motion for Substitution of Counsel
Appellant contends the trial court erred when it denied his second motion for substitution of counsel, made July 24, 2000, at the close of the prosecutions case. Appellant told the court, "this guy, hes not really representing me. Ive had people come here to testify on my behalf and he has sent them away. I mean people that could get on that stand and say about certain things that had happened that could have led to the situation." He complained counsel had only come to see him for seven minutes, had not come to see him on Sunday as he had promised and "he hasnt even questioned Miss Mulvey thoroughly, like the D.A. asked more questions than he has."
Defense counsel responded that he had 13 years of experience and had tried almost 100 felony trials, yet appellant "on every occasion where I have offered [insight and] advice has chosen not to benefit from that insight and advice as to how to proceed in this trial." Counsel explained a large number of witnesses had been interviewed and some subpoenaed. "Having gone through that and having personally met with all of these witnesses, Im only calling one witness who as a practical matter in ordinary circumstances I might not call." He said he did not intend to call certain witnesses appellant wanted him to call on the issue of why he had a knife that day because, "as a practical matter, none of these witnesses have any idea why Mr. Joseph went out that morning and bought a knife." He explained why he was not calling certain other witnesses. Defense counsel said, "I have talked with Mr. Joseph about what this case is about. We have gone through what his testimony is going to be several times. I have . . . given my ethical obligation that he has to offer truthful testimony, Ive tried to shape and form the information, he has to give in a relevant meaningful way to this jury that he might avoid the life counts. This has never been a case where Mr. Joseph was going to be found not guilty as charged. But there was a possibility that he could be convicted of lesser charges. But that assumed a certain amount of cooperation and — Mr. Joseph being able to get over his anger at Miss Mulvey that this is her fault. He hasnt been able to do that. Hes going to take the stand this morning and essentially testify as to why she basically deserved what she got. Thats against my advice."
Defense counsel expressed his belief that the case was "overcharged" and his hope that "if we communicate to the jury that we put this in a context where they can come back with lesser offenses." He defended his cross-examination of Mulvey explaining she presented a "compelling" story that the jury "in all likelihood embraced." He explained he did not feel it would benefit appellants case by "calling her a liar and talking about how something that happened in 1996 maybe didnt happen the way she said it happened."
The court commented, "Well, I think the danger was and I certainly noticed that had you beaten up, so to speak, on Miss Mulvey, the jury would have started crying again." Counsel said he believed he communicated to the jury that Mulvey "was kind of a co-conspirator in terms of breathing life in this relationship."
Appellant spoke further about witnesses he wanted to call. Among other things, appellant wanted to introduce evidence from child dependency proceedings four years earlier in the form of a "psychiatric record that shows that shes violent. Shows that shes not mentally stable." He also wanted to recall Mulvey as a witness after he testified. The court expressed the thought that recalling Mulvey was a "risk" because during her testimony "half of the jurors were crying. . . . if [defense counsel] gets too rough with a female victim on the stand, shell become even more of a sympathetic figure than she already is to the jurors."
Counsel explained that he thought the witnesses appellant wanted him to call were more likely to hurt his case than help it, and noted he also faced the "ethical dilemma" of calling a witness "who ultimately cant testify to admissible evidence." The court characterized appellant and defense counsels differences as being over strategy. The court said, "having sat through the trial so far, and we are almost at the end — at least I believe almost at the end of the Peoples case that [defense counsel] has done everything that he possibly could to properly represent the defendant. And given the explanations that he has given I feel that he has — he should continue to represent Mr. Joseph. I also feel because of the timeliness of the motion and weve had a Marsden hearing at the beginning of the trial and at this time to switch attorneys or have you represent yourself I dont believe would be of benefit to anyone. And for that reason, your motion to relieve [defense counsel] as attorney of record is denied."
Appellant asserts, "the trial court abused its discretion by failing to conduct a sufficient inquiry to ascertain whether appellants claims were meritorious, and by denying appellants motion." He argues the trial court should have concluded that counsel should be removed for failing to challenge Mulveys credibility on the basis of a prior false claim regarding an alleged sexual assault, some misdemeanor convictions, prior alcohol or drug abuse, evidence that she briefly lost custody of her daughter and prior psychological evaluations. These were tactical decisions for counsel to make based on the dynamics of the ongoing trial and counsels assessment of the impact of any of this evidence. The trial court properly concluded that counsels strategic decisions were not a basis for a Marsden motion. As for counsels "defeatist attitude," we consider his comments to reflect merely an experienced, realistic appraisal of the state of the evidence, indicating neither naive enthusiasm nor weary cynicism. In sum, the record is clear that the trial court provided appellant with ample opportunity to voice his concerns, and upon considering those concerns and counsels response, reasonably found them to be insufficient to warrant relieving trial counsel. We find no basis for concluding that the trial court either failed to conduct a proper Marsden inquiry or abused its discretion in declining to substitute counsel.
Attempted Murder
Appellant contends his attempted murder conviction must be reversed because it is not supported by substantial evidence. He argues there was no evidence of premeditation. Analyzing the evidence, he concludes there was "slight but ambiguous evidence of planning," "insubstantial and speculative evidence" of motive to murder, rather than rape, Mulvey, and that the manner of the attempted killing weighed against a finding of premeditation.
When considering a claim of insufficiency of the evidence, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal. Rptr. 529, 457 P.2d 321 . . . .)" (People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374.)
In People v. Anderson (1968) 70 Cal.2d 15, 73 Cal. Rptr. 550, 447 P.2d 942, the Supreme Court identified three types of evidence (planning, motive, and nature of killing) and the combinations thereof that would support a finding of premeditation. (Id. at pp. 26-27.) The Supreme Court later clarified that "Anderson does not require that these [three] factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive." (People v. Pride (1992) 3 Cal.4th 195, 247, 833 P.2d 643; see People v. Hawkins (1995) 10 Cal.4th 920, 956, 897 P.2d 574 [the guidelines in Anderson are not a definitive statement of the prerequisites for proving premeditation and deliberation].) Here, there was evidence of premeditation in that appellant bought the large knife that morning, taped it to his ankle and finally hid it in his waistband. After leaving the knife at the Barretts earlier in the day, he retrieved it from a drawer to take it along on the drive to Morgan Hill. There is evidence of planning in that appellant held the knife on his leg when making his demands, which supports an inference appellant had contemplated in advance the possibility he would have to stab Mulvey. Appellants comment that he would get her "one way or another" can support an inference appellant planned to kill Mulvey if she tried to resist. In his letter to God, which revealed his frustration with his relationship with Mulvey, he was concerned he would "get angry or go to jail." A jury could reasonably infer motive from the evidence that appellant had become angered at Mulveys repeated resistance to his sexual overtures and because she headed for the police station and was refusing to comply with his demands. Sufficient evidence supported the attempted murder conviction.
Appellant contends, "the conviction of attempted premeditated murder must be reversed because the trial court failed to fully instruct on the lesser included offense of attempted voluntary manslaughter and failed to instruct the jury that provocation that was insufficient to warrant a finding of manslaughter might nonetheless vitiate premeditation." Specifically, he argues the trial court erred by failing to instruct sua sponte with appropriate modifications of CALJIC Nos. 5.17 (Actual but Unreasonable Belief in Necessity to Defend-Manslaughter), 8.50 (Murder and Manslaughter Distinguished), 8.71 (Doubt Whether First or Second Degree Murder), 8.72 (Doubt Whether Murder or Manslaughter), and 8.73 (Evidence of Provocation May Be Considered in Determining Degree of Murder). In his second supplemental opening brief, appellant contends "the convictions of attempted premeditated murder . . . and infliction of corporeal injury . . . should be reversed because the trial court failed to instruct sua sponte on reasonable self-defense."
There is no sua sponte duty to give these instructions where substantial evidence of either a reasonable or an honest but unreasonable belief in the necessity for self-defense is lacking. The court instructed on attempted murder (CALJIC No. 8.66), willful, deliberate and premeditated attempted murder (CALJIC No. 8.67), voluntary manslaughter (CALJIC No. 8.40) and heat of passion and provocation (CALJIC Nos. 8.42, 8.43, 8.44). These instructions covered the areas upon which the defense focused.
Appellant testified:
"Q. [Mulvey] takes the exit, pulls off the pavement, drives on to the median, theres a crash. It sounds like something is missing in between there. How did Miss Mulvey get cut?
"A. When she crashed I just reacted to them, like, `What are you doing? What are you doing? And then I looked in the rearview mirror and I seen traffic because its an overpass and I seen traffic coming down and then I just reacted.
"Q. How — when you say you reacted, what did you do?
"A. I went into my pocket and I grabbed the knife and — stuff.
"Q. Why?
"A. Because she was trying to kill us.
"A. Why?
"A. I dont know. She just crashed and Im like, `What are you doing, what are you doing?
"Q. . . . Why do you feel like you needed to pull a knife out and stab your wife?
"A. When she crashed I just reacted to the crash. . . .
"Q. Did you — did you lose your mind? I mean, what were you doing with the knife?
"A. Just confused, just — dazed."
Appellants testimony does not establish that he stabbed Mulvey nine times because he believed, reasonably or unreasonably, that he was in imminent danger of being killed by her and acted to prevent this. Rather, he said he stabbed her in reaction to the crash. He does not say he acted to defend himself or his daughter. He does not say he believed his stabbing Mulvey would somehow prevent the traffic coming along the overpass from reaching them. The car had already crashed, and appellants testimony was that his reaction was an emotional outburst. Thus, no substantial evidence supported the giving of these instructions.
"`To require trial courts to ferret out all defenses that might possibly be shown by the evidence, even when inconsistent with the defendants theory at trial, would not only place an undue burden on the trial courts but would also create a potential of prejudice to the defendant. . . ." Appellate insistence upon sua sponte instructions which are inconsistent with defense trial theory or not clearly demanded by the evidence would hamper defense attorneys and put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions."" (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1272.)
The jury was instructed through CALJIC Nos. 8.40 and 8.42 that there was no malice aforethought if appellant acted in heat of passion or from provocation or unreasonably believed in the need for self-defense. In finding appellant guilty of premeditated attempted murder, the jury rejected the theories appellant advances here, rendering any omission harmless.
Kidnapping of Mulvey
Appellant asserts the trial court erred by failing to instruct sua sponte that a reasonable and good faith belief that Mulvey consented to accompany him during their drive was a defense to the kidnapping allegations. In People v. Mayberry (1975) 15 Cal.3d 143, 153-158, 125 Cal. Rptr. 745, 542 P.2d 1337, the California Supreme Court held that a defendants reasonable and good faith mistake of fact regarding a persons consent to accompany the defendant and engage in sexual intercourse is a defense to charges of forcible rape and kidnapping. Appellant argues that the court should have instructed in accordance with CALJIC No. 9.58, which states the Mayberry defense as it applies to the crime of kidnapping.
CALJIC No. 9.58 provides: "It is a defense to the crime of kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnapping. If from all the evidence you have a reasonable doubt that the defendant had general criminal intent at or during the time of the movement, you must find [him][her] not guilty of kidnapping."
"Mayberry is predicated on the notion that under [Penal Code] section 26 [fn. omitted], reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. [Citations.]" (People v. Williams (1992) 4 Cal.4th 354, 360, 841 P.2d 961.) The Mayberry defense has a subjective component and an objective component. (Ibid.) "The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. [Fn. omitted.] In order to satisfy this component, a defendant must adduce evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent. [P] In addition, the defendant must satisfy the objective component, which asks whether the defendants mistake regarding consent was reasonable under the circumstances." (People v. Williams, supra, 4 Cal.4th at pp. 360-361.) "The instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." (Id. at p. 362.)
In this case, the trial court defined kidnapping, including the lack of consent requirement. However, the court did not specifically instruct the jury regarding the application of the Mayberry defense to kidnapping. "In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094 . . . .)" (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) "`That obligation includes instructions on all of the elements of a charged offense [citation], and on recognized defenses . . . and on the relationship of these defenses to the elements of the charged offense. (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal. Rptr. 1, 518 P.2d 913 . . ., overruled on other grounds by People v. Breverman (1998) 19 Cal.4th 142, 178, fn. 26, 960 P.2d 1094 . . . [, overruled on other grounds by People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal. Rptr. 84, 603 P.2d 1].)" (People v. Rubalcava (2000) 23 Cal.4th 322, 334.) "In the case of defenses, . . . a sua sponte instructional duty arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (Ibid., italics added.) Thus, when the trial court believes there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory. (Id. at p. 717, fn. 7, italics added.)" (People v. Breverman (1998) 19 Cal.4th 142, 157, 960 P.2d 1094.)
Here, when asked if he brandished a knife at Mulvey as she drove the car, appellant answered, "No, I didnt threaten her or anything like that."
Appellant testified it was Mulveys idea to go to her parents house, and she never tried to pull off the road to use a call box. He testified:
"Q. . . . If youre supposed to be going to — shes giving you a ride back to your Sober Living Environment, we all know now that you ended up in Morgan Hill. How did you get there and not your Sober Living Environment?
"A. She said she just wanted to drive, talk about it. And stuff to hear my side out. . . .
"Q. So rather than take you directly to your Sober Living Environment
"A. She just stayed on the freeway.
"Q. — youre just going to drive around for a bit?
"A. Yes. " . . . .
"Q. Youre telling the jury that it was Leslies idea to drive past or beyond the — proper exit to take you to the Sober Living Environment.
"A. Yes. She wanted to talk it out.
"Q. Its your testimony that she did that voluntarily.
"A. Yes."
In contrast, Mulvey testified appellant took the knife out, held it on his thigh, ordered her to drive to her parents house and commanded her to "keep driving" when she tried to pull off the road to use the call box.
We agree with respondent that the trial court did not have a duty to instruct sua sponte regarding the Mayberry defense as applicable to the kidnapping allegations. There was no substantial evidence of equivocal conduct by Mulvey from which jurors could reasonably conclude that appellant entertained a reasonable and good faith, but mistaken, belief that she had voluntarily consented to the movement involved in the alleged kidnapping.
Kidnapping of Alexis
Appellant contends his conviction for kidnapping Alexis must be reversed "because there was no evidence of use of force or fear. In the alternative, that conviction must be reversed due to instructional errors by the trial court." Appellant argues that where the victim of a kidnapping is a minor, kidnapping cannot be a general intent crime, but instead must be accompanied by proof that the minor was moved for an illegal purpose, and that therefore the general kidnapping instructions given here were inadequate. Appellant relies on People v. Oliver (1961) 55 Cal.2d 761, 768, 12 Cal. Rptr. 865, 361 P.2d 593 and People v. Hill (2000) 23 Cal.4th 853, 857.
In Oliver, the defendant was convicted of kidnapping and lewd conduct with a two-year-old child. So far as the evidence showed, "the baby went willingly with defendant," but the court noted that "the baby was too young to give his legal consent to being taken by the defendant." (Oliver, supra, 55 Cal.2d. at p. 764.) In this situation, the court was concerned that a defendant might be convicted of kidnapping a person unable to give consent even if the defendant acted for a good purpose such as carrying the person to safety. (Id. at pp. 765-766.) Accordingly, the court concluded that "section 207, as applied to a person forcibly taking and carrying away another, who by reason of immaturity or mental condition is unable to give his legal consent thereto, should . . . be construed as making the one so acting guilty of kidnapping only if the taking and carrying away is done for an illegal purpose or with an illegal intent." (Id. at p. 768.) The court found the trial courts failure to instruct on this requirement prejudicial and reversed the kidnapping conviction. (Ibid.)
In Hill, the California Supreme Court upheld two counts of kidnapping where force was directed toward the mother while her child was in the car. The court expressly refrained from deciding whether it must be shown "as to a child force or fear in addition to an illegal purpose, or whether the illegal purpose itself established force or fear . . . ." (Hill, supra, 23 Cal.4th at p. 857.)
Here, ample evidence of force or fear was presented. Appellant forced Mulvey to drive him and Alexis to Morgan Hill by threatening Mulvey with the knife. Alexis was restrained in her car seat and in a moving car being driven at appellants direction. This behavior constituted the use of both force and fear. Appellant contends the force and fear was directed at Mulvey, not Alexis. A reasonable jury, however, could find it was directed at both. Oliver "indicated that in kidnapping cases the requirement of force may be relaxed where the victim is a minor who is too young to give his legal consent to being taken and the kidnapping was done for an improper purpose." (People v. Rios (1986) 177 Cal. App. 3d 445, 451, 222 Cal. Rptr. 913, citing Oliver, supra, 55 Cal.2d at pp. 764-766.)
Here, appellant forced both Mulvey and Alexis to go on the drive. The jury could infer Alexis was asported by means of force or fear as appellant threatened Mulvey with the knife forcing her to continue driving, and against Alexiss will, as her spitting and kicking at appellant indicate. The jury found beyond a reasonable doubt that the kidnapping of Mulvey occurred for the improper purpose of rape. The kidnapping of Alexis facilitated that purpose. Under these facts, even if it was error to fail to instruct on an improper purpose requirement, the error was harmless.
Appellant contends the trial court erred in that, "Although false imprisonment . . . is a lesser-included offense to simple kidnapping . . . the trial court failed to so instruct." Appellant argues that "since the jury was explicitly empowered under the instruction to return a verdict on a lesser offense as to counts [one] and [two], but not so instructed as to count five, the natural and ordinary understanding of a lay person would be that there were no lesser included offenses permissible under that count." We disagree. The jury was explicitly instructed to determine whether appellant was guilty or not guilty of the crimes charged in counts one, two and five "or any lesser crimes." The jury was explicitly instructed that the crime of violating Penal Code section 236 is lesser to that of Penal Code section 207(a). The jury was given two verdict forms for count 5, one for violating Penal Code section 207(a) as charged in count 5 and one for the "Lesser offense to count five" for violating Penal Code section 236-237 "as a lesser offense to that charged in Count Five of the Information." This was sufficient to let an ordinary juror know that he or she was "empowered" to return a lesser verdict on count five.
Ineffective Assistance of Counsel
In his second supplemental opening brief, appellant contends he was deprived of effective assistance of counsel. He argues counsel "failed to investigate, obtain and present important impeachment evidence."
Appellant refers to information defense counsel had in his possession that "Mulvey had made false claims of rape against a former boyfriend which was similar to the claim she of sexual intent [sic] made in appellants case." The prosecution sought to exclude as having no probative value evidence that in 1992, when she was the alleged victim of a sexual assault, Mulvey may have "made `sideways statements." Defense counsel made no objection, but as he explained, actively and expressly chose not to offer this type of impeachment evidence.
The prosecution moved to exclude evidence concerning a criminal investigation into suspected child abuse of the then three-month-old Alexis, and information from the juvenile dependency case that arose from this. This included a psychological evaluation of Mulvey that contained a finding that she had a propensity for violence. Defense counsel stated he did not expect to use this evidence. The prosecution sought to exclude Mulveys criminal history, specifically a 1989 petty theft conviction from New York, a joyriding conviction in 1993, and a 1995 welfare fraud conviction. The trial court granted the motion after defense counsel indicated he had no objection or stipulated he would not use this evidence. Defense counsel also did not oppose the prosecutors motion to exclude Mulveys history of alcohol and drug abuse.
Counsels decision to acquiesce to the exclusion of these items of evidence was reasonable. Counsel sought to defend the case by arguing there was no premeditation and deliberation, but that appellant simply exploded in a spontaneous burst of violence. None of these matters appellant claims should have been investigated and presented would have assisted in this defense, and, most likely, would have appeared to the jury as a form of bullying. It appears defense counsel correctly anticipated the strong current of sympathy that ran in favor of Mulvey during the trial.
Appellant argues counsel "failed to investigate, obtain and present critical evidence supporting appellants claim that he acted under the actual belief that it was necessary to use lethal force in self-defense." This claim is based on defense counsel not seeking to develop through Dennis Cavaco testimony concerning appellant and Mulveys "volatile relationship."
As discussed above, the justification for self-defense was lacking from appellants testimony. Appellant testified that he did not attack Mulvey until after the car came to a stop. Evidence concerning the volatility of their relationship would not have advanced the planned defense.
Appellant argues counsel "failed to request jury instructions which would have provided legal predicates for appellants theories of justification and mitigation." The instruction on imperfect self-defense was not supported by the evidence, as discussed above, and thus counsel was not ineffective for not requesting the instruction. The defense was also inconsistent with counsels planned theory of appellants explosion of violence that fell short of attempted murder. Appellant contends counsel erred in failing to request certain other instructions further defining and distinguishing murder and manslaughter, and reminding the jury that the prosecution has the burden of disproving heat of passion or self-defense. First, neither reasonable nor unreasonable self-defense applied, as discussed above. Second, the court did instruct on attempted murder, willful, deliberate and premeditated attempted murder, voluntary manslaughter, and various aspects of heat of passion and provocation. Appellants defense focused on these issues, that there was no intent to kill and no premeditation, but instead, an explosion of violence. There was substantial evidence that appellant planned the crime, appellant testified concerning the very slow speed of the car when it crashed and that he did not attack Mulvey until the car stopped. In light of this, any failure to request additional instructions was harmless. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1272.)
Appellant contends he received ineffective assistance of counsel through counsels failure to request CALJIC No. 9.58 (Kidnapping — Belief as to Consent.) Because, as indicated above, we find no evidentiary support for the giving of this instruction, any failure to request it was harmless.
Appellant contends he received ineffective assistance because counsel "abridged his duty to make a reasonable attempt to consult with appellant concerning trial defenses." The trial court rejected this claim during appellants second Marsden hearing. The record establishes counsel met with appellant and discussed the case, but, as trial counsel explained to the court, appellant simply chose to reject any advice his attorney had to offer. Appellant has not demonstrated ineffective assistance.
Appellant contends the trial court errors were individually and cumulatively prejudicial. Because we find no error or any arguable errors harmless individually or cumulatively, this contention fails.
Sentencing Issues
The trial court selected the kidnapping of Alexis as the principal term. The trial court stayed, pursuant to Penal Code section 654s prohibition against multiple punishment, the terms for the corporeal injury to Mulvey and the child endangerment of Alexis. The court made the term imposed for the attempted murder of Mulvey concurrent to the kidnapping of Mulvey and ordered those life terms to be served consecutively to the sentence imposed for kidnapping Alexis. Appellant contends the trial court committed sentencing error. Citing Penal Code section 654 barring multiple punishments, he argues "the trial court erred by imposing a concurrent term on count two (aggravated kidnapping of Mulvey), which occurred during the same indivisible course of conduct as count one (attempted premeditated murder of Mulvey)."
Penal Code section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Cases have extended section 654s prohibition against multiple punishment to situations "in which there are several offenses committed during `a course of conduct deemed to be indivisible in time. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal. Rptr. 401, 768 P.2d 1078.) In determining whether a course of conduct is indivisible in time, we focus on the defendants intent and objective. (People v. Harrison, supra, 45 Cal.3d at p. 335.) A defendant who harbors "`multiple criminal objectives, which were independent of and not merely incidental to each other" (ibid.) may be separately punished "`even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (Ibid.)
One relevant consideration in determining whether multiple crimes should be considered severable for section 654 purposes is the "`temporal proximity" of the crimes. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.) Where the offenses are "`separated by periods of time during which reflection was possible," Penal Code section 654 does not prohibit multiple punishment. (People v. Surdi (1995) 35 Cal.App.4th 685, 689, quoting People v. Trotter (1992) 7 Cal.App.4th 363, 368.)
When appellant pulled the knife and ordered Mulvey to drive past the freeway exit the kidnapping began. The kidnapping was for the purpose of forcing Mulvey to go to her parents house where appellant would rape her. Along the way, appellant had ample opportunity to reflect on what he was doing. When Mulvey drove in a way to thwart appellants plan, he attempted to murder her. This was a different intent than the initial kidnapping, and Penal Code section 654 did not prohibit sentencing on both of these counts. No sentencing error occurred.
The Abstract of Judgment
The parties agree the abstract of judgment contains a number of clerical errors. The trial court stayed imposition of sentence on Count 3, but the abstract lists it as concurrent rather than being placed in the "654 stay" column. The enhancement for weapons use was limited to Count 1 but the abstract lists it as a four-year enhancement. A one-year enhancement and a "stayed" enhancement are listed elsewhere in a space for prior convictions or terms. All the Penal Code section 12022, subdivision (b)(1) enhancements should be listed in box 2, rather than box 3, with that for count 1 being one year, and those for counts 2 and 3 being "S" (stayed). Box 2 should have an entry of "4" for Penal Code section 12022.7, subdivision (d) on count 1, and "S" for Penal Code section 12022.7, subdivision (d) on count 2.
Disposition
The judgment is affirmed. The clerk of the superior court is directed to prepare a corrected abstract of judgment and forward a copy of the corrected abstract of judgment to the Department of Corrections.
WE CONCUR: Rushing, P. J., and Premo, J.