Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. No. 16CMS2863)
APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant/defendant Michael Antonio White was charged and convicted of count 1, second degree robbery (Pen. Code, § 211), and count 2, criminal threats (§ 422), and admitted three prior prison term enhancements (§ 667.5, subd. (b)). He was sentenced to eight years in prison.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant challenges the evidence in support of both convictions. He also contends his pretrial motion to discharge his appointment counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) should have been granted. We affirm.
Jacob Moore was a plainclothes asset protection agent at the Rite Aid store in Corcoran. Moore's duties were to identify, observe, and detain shoplifters. Moore was allowed to detain shoplifters, bring them back into the store, and call the police. He could not force them to remain in the store. Moore testified his work was "[d]efinitely" dangerous, and he had been assaulted and injured on the job. He did not carry a weapon.
Sometime after noon on February 22, 2016, Moore was on duty when two people entered the store with a baby in a stroller. They were later identified as defendant and Raissa Shears. Shears was pushing the stroller and a blanket was over the child.
Moore testified that defendant and Shears walked to the aisle that displayed electronics merchandise. As part of his job, Moore had arranged mirrored tiles on the store's ceiling at angles that allowed him to stand in one aisle and look into adjacent aisles. Moore testified that he stood two aisles away from defendant and Shears, which was about 10 feet away, and watched them by looking at the mirrored tiles on the ceiling. Defendant takes the merchandise
Moore testified that he saw defendant look at merchandise in the electronics aisle that was displayed on a "stop block" rod. A key was required to unlock the display and remove the merchandise from the rod. Moore testified he had a clear view of defendant through the mirrored ceiling tiles. Moore watched defendant cut off two packages that contained red Sony headphones from the locked rod.
Moore testified he kept watching defendant and Shears as they walked to the back of the store, near the restrooms. Based on his prior experience, Moore testified that shoplifters often went into the store's restrooms to remove stolen merchandise from the packages and hide the items. As they headed to the back of the store, Moore immediately directed an employee to put away the restroom keys, so defendant and Shears could not enter.
Moore testified the shelves at the back of the store were lower, and he could look directly at defendant and Shears. They waited around the restrooms for someone to walk out but nothing happened. After a while, they walked to the paper goods aisle. Moore was about 10 to 12 feet away in another aisle and again watched them using the mirrored ceiling tiles. Defendant and Shears hunched over the stroller and removed the merchandise packages. Moore testified defendant took the headphones out of the packages, put the headphones under the baby's blanket in the stroller, and threw the empty packages on the shelf. Moore confronts Shears in the parking lot
Defendant and Shears walked toward the exit. Shears left the store with the stroller. Defendant stopped at the store's ice cream counter, just inside the front door.
Moore followed Shears out of the store and confronted her on the sidewalk outside the front door. Moore produced his store identification, said he was the asset protection agent, and asked Shears to hand over the stolen merchandise that was in the stroller. Shears tried to push the stroller around Moore. He put his foot in front of the stroller to stop her. Defendant's statements to Moore
Moore testified that as he kept his foot in front of the stroller, defendant ran outside and got within three to five feet of Moore. Moore testified that defendant said "to back off away from the stroller before he beats my ass." Defendant said, " 'Back the f[**]k up. Get out of here before you f[**]king get hurt.' "
Moore identified himself to defendant and said he was not scared because this was part of his job. Moore told defendant and Shears that he wanted the merchandise and then they could just leave.
Moore removed his foot from the stroller but stayed in front of them and blocked their path. Defendant and Shears said they did not have anything and told Moore to get out of the way. Moore testified that defendant kept "cussing at me, telling me to, 'Get out of the way before you get hurt. Get out of the f[**]king way.' "
Moore testified that he was "nervous and scared" from defendant's statements because he had previously been hurt on the job. Even though he was scared, however, he told defendant that he was not scared of him. In response, defendant asked Moore "[w]hy wouldn't I be scared of him."
Moore testified that he continued to stand directly in front of defendant, Shears, and the stroller. Moore again asked them to return the merchandise. Defendant said they did not have anything and kept "demanding" for Moore to " '[g]et out of the 'effing way.' " Moore testified that defendant acted "aggressive" when he made these statements to him. Defendant "was getting close to me, loud voice, body language. He was moving trying to intimate me." Defendant raised his voice and he was very loud.
Moore testified that defendant's hands were "balled up like fists" when he made these statements to Moore. Moore testified he was "scared" and afraid "that I could get hurt, that I'm in danger," because defendant "was really aggressive and I thought I was in danger," since he had previously been hurt on the job. Moore testified defendant never reached out to grab him or tried to swing at him.
During trial, the prosecutor asked Moore about his weight and height. Moore testified that he was six feet one inch tall and weighed 200 pounds. The prosecutor then asked defendant to stand up, and the court directed him to do so.
Neither the court nor the parties placed anything on the record about defendant's height or weight. In closing argument, the prosecutor stated: "... I had Mr. Moore specifically tell us his height, 6'1" I think he said and 180 or 200 pounds.... But you saw Mr. Moore's size when he walked in. And then what did I have the Court do? I had the Court ask [defendant] ... to go ahead and stand. And you can see a distinctive difference in their sizes." The prosecutor argued defendant was guilty of violating section 422 "based on his size," his threats to beat and harm Moore, and that his fists were balled up when he made the threats.
At the sentencing hearing, the court reviewed the trial evidence that defendant threatened Moore, noted that defendant did not use any force against him, and stated that defendant was probably "just hoping his size would cause the gentleman [Moore] to step aside, which he eventually did."
Moore testified that after about three minutes, he decided to let defendant and Shears leave and he stepped out of their way. However, he followed them from a safe distance of about 15 to 20 feet and called the police. Defendant kept telling Moore to stop following them "before I get hurt."
Moore followed them out of the parking lot and waited for the police to arrive. When defendant and Shears were about 150 feet away from the store, defendant suddenly grabbed the headphones from under the baby's blanket and ran away with the merchandise.
Moore later found the empty packages for the Sony headphones in the store's paper goods aisle. One set of headphones cost $29.99, and the two items, including tax, would have been about $60. Defense evidence
Defendant did not testify.
The defense called Officer Jurdon of the Corcoran Police Department, who responded to the dispatch of a theft at the store within five to six minutes. He found Moore about two blocks away from the store. Shears was about 20 feet away from Moore. Defendant was not present.
About two to three minutes later, Sergeant Castro responded to the area and searched Shears. Castro did not find the stolen merchandise and Shears was allowed to leave.
Officer Jurden testified he drove Moore back to the store. During the drive, they saw defendant walking about a block away from where Shears had been detained. They saw defendant about 15 minutes after the original dispatch.
Defendant was arrested and searched. The stolen merchandise was not found on his person or the area around him. Conviction and sentence
After a jury trial, defendant was convicted as charged of count 1, second degree robbery, and count 2, criminal threats to Moore. Defendant admitted three prior prison term enhancements, and the court granted the People's motion to dismiss two prior prison term allegations.
On March 1, 2017, the court sentenced defendant to an aggregate term of eight years based on the upper term of five years for count 1, robbery, and three consecutive one-year terms for the prior prison term enhancements; the court stayed the upper term of three years imposed for count 2, criminal threats.
The court also resentenced defendant in two unrelated cases and imposed concurrent terms of three years for second degree burglary and the lower term of 16 months for possession of an illegal weapon.
I. Defendant's Conviction for Criminal Threats is Supported by the Evidence
Defendant contends his conviction in count 2, criminal threats to Moore in violation of section 422, must be reversed because there is insufficient evidence that Moore was subjectively in "sustained fear," and that his subjective fear was "reasonable."
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
A. Section 422
Section 422, subdivision (a) defines the offense of criminal threats:
"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat - which may be 'made verbally, in writing, or by means of an electronic communication device' - was 'on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228; In re George T. (2004) 33 Cal.4th 620, 630.) "[A]ll of the circumstances can and should be considered in determining" whether the defendant made a criminal threat in violation of section 422. (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.)
B. "Sustained Fear"
Section 422 "requires that the threat be such as to cause a reasonable person to be in sustained fear for his personal safety. The statute is specific as to what actions and reactions fall within its definition of a [criminal] threat. The phrase to 'cause[ ] that person reasonably to be in sustained fear for his or her own safety' has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140, italics in original (Ricky T.).)
"Defining the word 'sustained' by its opposites, we find that it means a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) However, not every fearful experience satisfies this standard. (Ricky T., supra, 87 Cal.App.4th at p. 1140.) "Clearly, if any experience of fear constitutes a 'sustained' experience, then the term is superfluous." (Ibid.)
A series of cases illustrates the range of statements that have been found to constitute sustained fear as required by section 422. In Allen, the defendant had previously broken into the home of the victim's daughter, repeatedly stalked and assaulted the daughter, and looked inside the victim's home. (Allen, supra, 33 Cal.App.4th at pp. 1151-1153.) On the day of the offense, the defendant went by the victim's house several times. He approached the victim's back door with a gun and threatened to kill her and her daughter. The victim called the police, who arrested the defendant within " 'about fifteen minutes or so.' " (Id. at pp. 1155-1156.)
Allen held the victim's knowledge of the defendant's prior conduct was relevant to establish a state of sustained fear, and that "[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute 'sustained' fear for purposes of this element of section 422." (Allen, supra, 33 Cal.App.4th at p. 1156, fn. omitted.)
In Ricky T., a minor left his high school classroom to use the restroom, found the door locked when he returned, and pounded on the door. The teacher opened the door and it accidentally hit the minor. The minor became angry, cursed the teacher, threatened to " 'get' " him, and said, " 'I'm going to kick your ass.' " The minor did not make any physical movements or gestures. The teacher felt threatened and sent the minor to the school office. He complied with his order and reported to the office. The police were called the next day and interviewed the minor, who was later found to have violated section 422 with his statements to the teacher. (Ricky T., supra, 87 Cal.App.4th at pp. 1135-1136.)
Ricky T. held the evidence was insufficient to support the section 422 finding against the minor because the teacher's fear was fleeting, and the minor's statement "was an emotional response to an accident rather than a death threat that induced sustained fear." (Ricky T., supra, 87 Cal.App.4th at p. 1141.) "Whatever emotion - fear, intimidation, or apprehension - [the teacher] felt during the moment of the verbal encounter, there was nothing to indicate that the fear was more than fleeting or transitory. Indeed, [the teacher] admitted the threat was not specific." (Id. at p. 1140.) While the teacher stated that he felt threatened, Ricky T. found that the teacher's fear "did not exist beyond the moments of the encounter" since there was no history of incidents between the teacher and the minor, the minor's statements were not accompanied by a show of force or violence, he followed the teacher's instructions and went to the office when ordered, and the police were not notified until the next day. (Ibid.)
Ricky T. rejected the People's reliance on Allen for the argument that even a short period of sustained fear was sufficient. Ricky T. acknowledged that Allen held "15 minutes sufficed to establish sustained fear," but the evidence in Allen, "unlike here, showed that the defendant followed up on his threats to injure the victim." (Ricky T., supra, 87 Cal.App.4th at p. 1141.)
"[S]ection 422 was not enacted to punish an angry adolescent's utterances, unless they otherwise qualify as [criminal] threats under that statute. [The minor's] statement was an emotional response to an accident rather than a death threat that induced sustained fear. Although what [the minor] did was wrong, we are hesitant to change this school confrontation between a student and a teacher to a terrorist threat. Students who misbehave should be taught a lesson, but not, as in this case, a penal one." (Id. at p. 1141.)
Ricky T. also rejected the People's argument that the teacher's act of sending the minor to the office established sustained fear. "[The teacher's] response, far from evincing a reasonable sustained fear, was an appropriate, necessary response to a disruptive classroom incident. It was [the teacher's] response that called [the student's] outburst to the attention of the school office and effected a five-day suspension. [The minor] uttered intemperate, disrespectful remarks to [the teacher] in the presence of a classroom full of students. It is obvious that this mouthing off or posturing was not designed to coerce [the teacher] to do or not to do anything. There is no evidence that [the teacher] felt fear beyond the time of the angry utterances." (Ricky T., supra, 87 Cal.App.4th at p. 1140.)
In People v. Fierro (2010) 180 Cal.App.4th 1342 (Fierro), the victim and his son were at a gas station when the defendant pulled up. They did not previously know each other. The victim asked the defendant to move his car because he was blocking access to the pumps. They exchanged words and the defendant drove away. The defendant quickly returned, confronted the victim in his car, displayed a weapon in his waistband, yelled obscenities, and threatened to kill the victim and his son. (Id. at pp. 1344-1346.) The threat itself lasted about 40 seconds; the defendant's display of the weapon lasted about one minute. (Id. at p. 1349 & fn. 5.) The victim drove away but testified he was scared to death. Within about 15 minutes, the victim was able to reach a safe place, called the police, and told the operator that he was scared. (Id. at p. 1346.)
Fierro held the defendant's threat caused actual, sustained, and reasonable fear in the victim. (Fierro, supra, 180 Cal.App.4th at pp. 1348-1349.)
"[The victim] testified clearly and more than once that he was horribly scared, and his fright was not fleeting. Regardless of who was at fault during the first confrontation, it had ended. [The defendant] had driven away. But then [the defendant] circled and returned with the obvious intent of confronting [the victim] again and, this time, frightening him. In light of the (albeit recent) history between these people, [the defendant] amply succeeded.... The fear lasted not only through the minute or so that [the defendant] stood there exposing his weapon, but for up to 15 minutes after [the victim] drove away. It is entirely reasonable that [the victim] would react as he did for as long as he did...." (Id. at p. 1348.)
Fierro held the circumstances differed "sharply" from the momentary fear that was found in Ricky T. Fierro explained that even though the victim drove away from defendant and was no longer subject to any threats, the jury could reasonably find that he was still in an emotional state of fear. A "person who hears someone say, 'I will kill you ... right now,' coupled with seeing a weapon, is quite justified in remaining 'scared shitless' - as [the victim] put it - for 15 minutes." (Fierro, supra, 180 Cal.App.4th at p. 1349.) Fierro held that "even if" it accepted defendant's argument that the only relevant time period was while the weapon was displayed, "the minute during which [the victim] heard the threat and saw [the defendant's] weapon qualifies as 'sustained' under the statute. When one believes he is about to die, a minute is longer than 'momentary, fleeting, or transitory.' [Citation.]" (Ibid., italics added)
In People v. Orloff (2016) 2 Cal.App.5th 947 (Orloff), the defendant was confined to a wheelchair. He regularly went to a particular pharmacy to fill prescriptions and repeatedly became disruptive and verbally abusive to employees. The store's manager finally told him not to return and that his prescriptions would be transferred to any store that he wanted. A short time later, the defendant called the manager and told him, " 'You're dead' " and hung up. (Id. at pp. 951-952.)
Orloff affirmed the defendant's conviction for making criminal threats to the store manager. The court rejected the defendant's argument that his telephonic statement was simply an angry utterance that could not reasonably induce sustained fear since the manager knew he was confined to a wheelchair. (Orloff, supra, 2 Cal.App.5th at p. 954.) Orloff held the manager "reasonably believed that, despite [the defendant's] disability, he could carry and fire a gun." (Ibid.) The defendant's statement "was a death threat that induced sustained fear. Unlike Ricky T., [the defendant's] threat was not merely 'an angry adolescent's utterances.' [Citation.]" (Ibid.)
Defendant argues his conviction for making criminal threats to Moore must be reversed because Moore never testified to "a fear lasting longer than the confrontation itself," the circumstantial evidence showed "he was not in fear," and he felt safe enough to pursue the suspects and later return to the store even though defendant had not yet been taken into custody.
To the contrary, Moore's testimony established that he was in subjective fear that was reasonable during the encounter with defendant. When Moore stopped Shears outside the store and placed his foot in front of the stroller, defendant immediately confronted him. Defendant threatened to beat and hurt Moore unless he backed away. Moore removed his foot but stayed in front of them. Moore testified that defendant kept cursing and threatening to hurt him. Defendant acted aggressive, he was "getting close to me, loud voice, body language. He was moving trying to intimidate me." Moore testified defendant never reached out to grab or swing at him, but defendant's hands were "balled up like fists" as he made the threats.
Moore admitted that he told defendant that he was not scared because this was part of his job. However, Moore testified that while he made this statement, he was actually "nervous and scared" because of defendant's threats since he had previously been injured on the job.
Defendant argues this case is unlike Fierro since he did not brandish a weapon, and that the facts are instead similar to the brief situation in Ricky T. that was found insufficient to support a violation of section 422. Defendant argues Moore's testimony that he felt scared during the incident did not establish that he suffered any "lasting or remaining fear." Defendant is correct that he did not brandish a weapon at Moore, as in Allen and Fierro. However, he balled up his fists as he made the threats to Moore. Moreover, defendant's statements were not similar to the brief utterances of an "angry adolescent" in Ricky T. Instead, defendant had just committed a crime and repeatedly told Moore to get out of the way or he would beat him.
In Fierro, the court noted that the defendant in that case did not have a prior history with the victim but considered the entirety of the victim's encounter with defendant at the gas station to find the victim's fear was reasonable. In this case, there was no evidence of a previous history between defendant and Moore, but Moore had just watched defendant commit a crime and it was reasonable for Moore to believe that defendant would carry out his threats to harm Moore if he did not let defendant and Shears leave with the stolen merchandise.
Defendant asserts there is no circumstantial evidence of "lasting fear" because Moore did not run to safety or suffer any permanent or lasting effects from the threat, and instead returned to work at the store. Moore testified that after about three minutes, he was frightened enough to let defendant and Shears leave and stepped out of their way. As in Fierro, he stayed at a "safe" distance from them as they walked away. In contrast to Ricky T., however, he immediately called the police for help. Moore returned to the store with the police officer after both Shears and defendant had been located.
Defendant further argues that even if Moore subjectively suffered from sustained fear, that fear was not reasonable under the circumstances since it did not last any longer than the incident itself. Moore testified the encounter lasted about three minutes, he stepped away from defendant, and immediately called the police. The first officer responded to the area within five to six minutes of receiving the dispatch. Moore did not specifically testify that he was still frightened after defendant walked away, but the circumstances imply as much since he stepped out of the way after defendant's repeated threats, he called the police for help, he did not chase defendant when he ran away, and he stayed about 20 feet away from Shears after defendant fled.
Finally, defendant argues it was not reasonable for Moore to suffer any fear since defendant's alleged threat was conditional, whereas section 422 requires an unequivocal, unconditional, and immediate threat. Defendant asserts that he told Moore to get out of the way or he would be hurt, Moore got out of the way, defendant left, and the incident was over. This argument is meritless. A "threat to do an illegal act which is dependent upon the occurrence of some other event does not put the threat beyond the reach of section 422." (People v. Dias (1997) 52 Cal.App.4th 46, 52 (Dias).) Dias held the conditional language of a threat did not preclude a conviction under section 422, where the defendant said, " '[I]f you are lying to me, I'm going to kill you.' " (Id. at p. 49.) The defendant also said "that [i]f [the victim] called the police, he would come back and kill [the victim]." (Ibid.) Dias held: "The touchstone of our analysis is thus not solely whether the language used in the threat is couched in a conditional grammatical construction. Rather, it is necessary to review the language and context of the threat to determine if the speaker had the specific intent that the statement was to be taken as a threat." (Id. at p. 52.)
Even though defendant conditioned his statements on whether Moore stepped out of the way, it is clear defendant intended his statements be taken as threats since they were accompanied defendant's aggressive behavior and body language and balling up his fists as he made the threats.
II. Defendant's Conviction for Robbery was not Based on a Legally Inadequate Theory
Defendant next contends the court should have granted his motion to dismiss the robbery charge, and his conviction for robbery must be reversed, because the prosecution relied on a legally inadequate theory of guilt. Defendant asserts the prosecutor used closing argument to assert the "immediate presence" element of robbery was satisfied when defendant removed the two items from the store's display. Defendant argues such a theory was legally inadequate because Moore was not in defendant's immediate presence when he removed the items from the display, and Moore only watched the incident through the overhead mirrors on the ceiling.
"It is well settled that reversal is required when ' "a particular theory of conviction ... is contrary to law," ' i.e., the jury has been instructed on 'a "legally inadequate theory." ' [Citation.] It is equally well settled that '[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.' [Citation.]" (People v. Williams (2018) 26 Cal.App.5th 71.)
In order to address defendant's contentions, we will review the "immediate presence" element of robbery, the instructions given to the jury in this case, and the prosecutor's closing arguments.
"[R]obbery is the 'felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' (§ 211.) The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim's person or immediate presence, and (2) accomplished by the use of force or fear. [Citations.]" (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221; People v. Gomez (2008) 43 Cal.4th 249, 254, 255 (Gomez).)
"A robbery cannot be committed against a person who is not in possession of the property taken or retained. [Citation.] Possession may be actual or constructive. [Citation.] 'A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for purposes of the robbery statute.' [Citation.]" (People v. Bradford (2010) 187 Cal.App.4th 1345, 1349.)
" ' "[T]he theory of constructive possession has been used to expand the concept of possession to include [store] employees and others as robbery victims." ' [Citation.]" (People v. Bradford, supra, 187 Cal.App.4th at p. 1349.) "[A]ll employees on duty have constructive possession of their employer's property and may be separate victims of a robbery." (Ibid.)
B. The "Taking" Element
"The taking element of robbery itself has two necessary elements, gaining possession of the victim's property," known as the caption, "and asporting or carrying away the loot. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper); Gomez, supra, 43 Cal.4th at p. 254.) "[A] taking is not over at the moment of caption; it continues through asportation." (Gomez, supra, 43 Cal.4th at p. 256.)
"Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property [citation]." (Gomez, supra, 43 Cal.4th at p. 255.) The requisite intent must arise before or during commission of the act of force or fear, and the defendant must apply the force or fear for the purpose of accomplishing the taking. (People v. Anderson (2011) 51 Cal.4th 989, 994; People v. Bolden (2002) 29 Cal.4th 515, 555-556.) Thus, the "force or fear element of robbery can be satisfied during either the caption or the asportation phase of the taking. [Citations.]" (Gomez, supra, 43 Cal.4th at p. 261.)
C. "Immediate Presence"
"The 'immediate presence' component focuses on whether the stolen property was located in an area in which the victim could have expected to take effective steps to retain control over his property. [Citation.] Traditionally, the 'immediate presence' requirement has been described as relating to the 'gaining possession' element of the taking rather than the 'carrying away' element of a robbery charge. [Citation.]" (Miller v. Superior Court, supra, 115 Cal.App.4th at p. 222.)
"Although the 'immediate presence' language comes directly from section 211, this language does not pertain to the duration of robbery. Section 211 defines robbery as 'the felonious taking of personal property in the possession of another, from his person or immediate presence ....' (Italics added.) Taking from the 'person' and from the 'immediate presence' are alternatives. These terms are spatially, rather than temporally, descriptive. They refer to the area from which the property is taken, not how far it is taken. [Citations.] Put another way, these limitations on the scope of the robbery statute relate to the 'gaining possession' component of the taking as distinct from the 'carrying away' component." (Cooper, supra, 53 Cal.3d at p. 1166, original italics.)
"[T]he spacial concept of immediate presence has been broadly applied." (Gomez, supra, 43 Cal.4th at p. 257.) "The generally accepted definition of immediate presence ... is that ' "[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it." ' [Citations.]" (People v. Hayes (1990) 52 Cal.3d 577, 626-627 (Hayes).)
"Thus, ... immediate presence ' "must mean at least an area within which the victim could reasonably be expected to exercise some physical control over [her] property." ' [Citation.] Under this definition, property may be found to be in the victim's immediate presence 'even though it is located in another room of the house, or in another building on [the] premises.' [Citations.]" (Hayes, supra, 52 Cal.3d at p. 627; People v. Johnson (2015) 60 Cal.4th 966, 989; Gomez, supra, 43 Cal.4th at p. 257.)
"[T]he requirement that the taking be from the ' "person" ' or ' "immediate presence" ' of the victim describes a spatial relationship between the victim and the victim's property, and refers to the area from which the property is taken. Thus, the decisions addressing the 'immediate presence' element of robbery have focused on whether the taken property was located in an area in which the victim could have expected to take effective steps to retain control over his property. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 955-956, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390; Gomez, supra, 43 Cal.4th at p. 258.)
In Hayes, the room in which the victim was killed was 107 feet from the location of the stolen property. The court held that a reasonable trier of fact, properly instructed, could conclude the immediate presence element was met. (Hayes, supra, 52 Cal.3d at pp. 628-629.) In People v. Webster (1991) 54 Cal.3d 411, the court held that a reasonable trier of fact could find the immediate presence requirement satisfied when the distance between the stolen property and the murder scene was a quarter of a mile. (Id. at p. 440.) In Gomez, the court held the immediate presence requirement was satisfied when the defendant fired two shots at the victim, from a distance of 100 to 150 feet. (Gomez, supra, 43 Cal.4th at p. 265.) "The parties' distance from each other at the time of this shooting was not so great as to preclude defendant's conviction for robbery." (Ibid.)
D. "Estes" Robbery
To support a robbery charge, the taking must also be accomplished by force or fear. (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; Miller v. Superior Court, supra, 115 Cal.App.4th at p. 222.) "[I]f the 'force or fear' element comes into play not during caption but during asportation, the crime is still a robbery." (Gomez, supra, 43 Cal.4th at p. 258.)
The use of force or fear to maintain possession of the victim's property is sometimes referred to as an "Estes robbery." (Miller v. Superior Court, supra, 115 Cal.App.4th at p. 223; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes).) " 'A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence. [Citations.]' [Citation.] That is, '[a] robbery is not completed at the moment the robber obtains possession of the stolen property. The crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property.... [A] robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which defendant originally acquired the property.' [Citation.]" (People v. McKinnon (2011) 52 Cal.4th 610, 686-687; People v. Williams (2013) 57 Cal.4th 776, 787; People v. Hodges (2013) 213 Cal.App.4th 531, 540.)
In Estes, the defendant entered a store, picked up a coat and vest, and walked out without paying for them. A security guard followed the defendant outside and attempted to detain him after the defendant refused to return to the store. The defendant pulled out a knife, swung it at the guard and threatened to kill him. The defendant was convicted of robbery. Estes rejected the defendant's argument that he did not use force or fear since "his assaultive behavior was not contemporaneous with the taking of the merchandise from the store." (Estes, supra, 147 Cal.App.3d at p. 28.) Instead, Estes held that because "[t]he crime of robbery is a continuing offense[,] ... [i]t is sufficient to support the conviction that [the defendant] used force to prevent the guard from retaking the property and to facilitate his escape. ... Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction." (Ibid., italics added.)
In People v. Pham (1993) 15 Cal.App.4th 61, the court relied on Estes and upheld the defendant's conviction for robbery because he "forcibly asported ... the victims' property when he physically resisted their attempts to regain it." (People v. Pham, supra, at p. 67, italics added.) In People v. Flynn (2000) 77 Cal.App.4th 766, the court similarly held that the "willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery." (Id. at p. 772, italics added.)
E. Robbery Instruction
The jury in this case was instructed with CALCRIM No. 1600, on the elements of robbery:
"To prove that the defendant is guilty of this crime the People must prove that:
"1. The defendant took property that was not his own.
"2. The property was in the possession of another person.
"3. The property was taken from the other person or his or her immediate presence.
"4. The property was taken against that person's will.
"5. The defendant used force or fear to take the property or to prevent the person from resisting. [¶] And, [¶]
"6. When he defendant used force or fear to take the property he intended to deprive the owner of it permanently." (Italics added.)
The instruction further stated that property was within the person's "immediate presence" if it is sufficiently within his or her personal control that he or she could keep possession of it if not prevented by force or fear."
F. Closing Argument
In closing argument, the prosecutor separately reviewed each element in the robbery instruction and argued the evidence supported the charge. As to the possession element, he asserted:
"Property was in the possession of another or another person. What evidence do we have of that? Well, that's that it was on the shelf or the rack ... and it had to be cut off. Again, the second time the package was opened and the headphones actually taken out. And so therefore, if it was taken from another person - and down at the bottom ... this instruction says a store employee who's on duty has possession of the store owner's property. Well, the store owner is Right Aide [sic] and because [Moore's] on duty it's, you know, basically considered to be his own in that situation. I would submit to you, again, beyond a reasonable doubt with those facts."
The prosecutor next addressed the evidence that established the "immediate presence" element, as explained in the instruction:
"The property was taken from the other person or his or her immediate presence. The evidence that you have of that element, folks, is the positioning of where the parties were when the property was initially cut off the rack ... to indicate what the package was on with that stop lock device. And where were they? The defendant was in the electronics aisle. Where was Mr. Moore? He was two aisles over watching through the reflecting panels that he had put in. I think he testified he was within about 10 or 15 feet. I would submit to you that that's within his immediate presence beyond a reasonable doubt." (Italics added.)
The prosecutor also argued the property was taken against the person's will, as required by the fourth element in the instruction:
"The property was taken against that person's will. What evidence do we have of that? Well, initially there wasn't any struggle of any kind or any confrontation about the property. That took place when - outside the
store when Mr. Moore attempted to stop the defendant and the female, with the baby in the stroller, put his foot out and stopped the stroller from moving and the female from going apparently around him. And what did the defendant then do? He made all of these kinds of threats. I won't use the words that he used but it was to hurt him, to beat him up, things of that nature. He said it a number of times to Mr. Moore. And what was Mr. Moore's response? Just, 'Give me back the property and you can go.' Well, it's being taken against his will; he's trying to get it back, trying to prevent them from taking it and probably in an inappropriate way. And the reaction is, 'Get out of my way, I'm leaving anyway and if you don't bad things are going to happen to you.' Again, I would submit that element is number 4 and proven beyond a reasonable doubt."
The prosecutor turned to the fifth element in the instruction, as to evidence of force or fear.
"Now, number 5, the defendant used force or fear to take the property or to prevent the person from resisting. I would submit to you because it's in what we call the ... the word is 'or', you don't have to have both. In this case I would submit that there was no force, actual physical force used against Mr. Moore by the defendant but it was fear. And how was this fear projected to get Mr. Moore not to resist, to let him go? He threatened him, he was going to beat him, going to hurt him. And you noticed that yesterday when I got to that point of Mr. Moore's testimony I had Mr. Moore specifically tell us his height, 6'1" I think he said and 180 or 200 pounds, I forgot what it was. But you saw Mr. Moore's size when he walked in. And then what did I have the Court do? I had the Court ask [defendant] ... to go ahead and stand. And you can see a distinctive difference in their sizes. But what else did Mr. Moore testify to about his fear? They were close, within to three to five feet. ... One step and Mr. Moore feared that the defendant was going to hurt him. It would have been relatively easy. The defendant had taken an aggressive stance and had balled up his fists. I would submit to you that that's the fear necessary to prevent Mr. Moore from resisting, to prevent the defendant from leaving with this property." (Italics added.)
Defendant asserts the prosecutor relied on a legally inadequate theory of guilt because he erroneously argued that the "immediate presence" element of robbery was satisfied when defendant removed the two items from the store's display. Defendant contends that such conduct did not satisfy the immediate presence element because Moore was two aisles away when that happened.
As set forth in closing argument, however, the prosecutor did not rely on a legally inadequate theory when he argued that the "immediate presence" element was satisfied. As explained above, "the spacial concept of immediate presence has been broadly applied." (Gomez, supra, 43 Cal.4th at p. 257.) "Thus, ... immediate presence ' "must mean at least an area within which the victim could reasonably be expected to exercise some physical control over [her] property." ' [Citation.] Under this definition, property may be found to be in the victim's immediate presence 'even though it is located in another room of the house, or in another building on [the] premises.' [Citations.]" (Hayes, supra, 52 Cal.3d at p. 627; People v. Johnson, supra, 60 Cal.4th at p. 989; Gomez, supra, 43 Cal.4th at p. 257.)
Moore testified he was two aisles away from defendant and Shears, which was approximately 10 to 12 feet. He used the mirrored tiles on the ceiling to watch as the packages were cut off the locked display rod. The merchandise was clearly within his control and observation. There were no physical barriers to prevent him from walking around the aisles to confront defendant, but the record implies he decided against doing it at that point to avoid a confrontation.
Defendant further argues the jury was likely confused to the extent that the prosecutor may have relied on an "Estes" type robbery in closing argument, because the jury was not instructed about such a theory as it applied to the "immediate presence" element. However, these concepts presented two separate issues. "[T]here is no single 'temporal point at which the elements must come together' in order to constitute the offense of robbery; rather, 'robbery, like larceny, is a continuing offense,' and whereas '[a]ll the elements must be satisfied before the crime is completed[,] ... no artificial parsing is required as to the precise moment or order in which the elements are satisfied.' [Citation.]" (People v. Hodges, supra, 213 Cal.App.4th at p. 540.) "[M]ere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.]" (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8.)
Estes held that because "[t]he crime of robbery is a continuing offense[,] ... [i]t is sufficient to support the conviction that [defendant] used force to prevent the guard from retaking the property and to facilitate his escape. ... Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction." (Estes, supra, 147 Cal.App.3d at p. 28, italics added.)
In his closing argument, the prosecutor appeared to have relied on an Estes-type theory not for the "immediate presence" element, but for the fifth element in the instruction - whether the defendant used force or fear "to take the property or to prevent the person from resisting." (Italics added.) The prosecutor argued this element was established by evidence that defendant used fear to "prevent the [victim] from resisting," that defendant threatened and physically intimidated Moore, and "that's the fear necessary to prevent Mr. Moore from resisting, to prevent the defendant from leaving with this property." The instruction and argument were consistent with Estes as to the use of force or fear "to resist attempts to retake the stolen property ...." (Estes, supra, 147 Cal.App.3d at p. 28.)
We further note that even if the prosecutor's argument relied on an Estes-type robbery for the immediate presence element, the jury was properly instructed on that point. CALCRIM No. 1600 stated that property was within the victim's "immediate presence" if it was sufficiently within his or her personal control that he or she could keep possession of it if not prevented by force or fear.
We thus conclude that the prosecutor did not rely on legally inadequate theories when he addressed the evidence in support of the robbery charge, and that the jury's findings on both the "immediate presence" and "force or fear" elements are supported by the evidence. III. Denial of Defendant's Pretrial Marsden Motions
Defendant made two pretrial Marsden motions, the court held hearings in response to both motions, after which the court denied the motions. Defendant now contends that the court abused its discretion when it denied the motions because it failed to address or inquire about his complaints regarding defense counsel's alleged failure to investigate the case and discuss it with him. Defendant argues the matter must be remanded for an adequate inquiry required by Marsden.
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation - i.e., makes what is commonly called a Marsden motion [citation] - the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel 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. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 604.)
We turn to the procedural history of defendant's two pretrial Marsden hearings.
A. Procedural Background
Defendant was charged in this case with committing offenses on February 22, 2016.
On May 24, 2016, the complaint was filed that charged defendant with count 1, robbery, and count 2, criminal threats, with five prior prison term enhancements.
The court appointed Robert Stover to represent defendant.
B. Sentencing on Pending Cases
Defendant had other unrelated cases that were pending when he was charged in this case.
According to the probation report, defendant was convicted of second degree burglary with two prior prison term enhancements in 2015, prior to being charged in this case. He was placed on probation.
In July 2016, after defendant was charged in this case, his probation was revoked in the burglary case (case No. 15CM-7163). Also that month, defendant was charged in an unrelated case with felony possession of an illegal weapon, a billy club (§ 22210; case No. 16CM-2264).
As we will explain below, we have cited to the probation report for the procedural history of defendant's prior cases not for the truth of the matter, but for the limited purpose of explaining defense counsel's statements at the first Marsden hearing about how he was handling the charges in defendant's current case.
On September 8, 2016, while the current case was pending, the court sentenced defendant in the two prior cases. In case No. 15CM-7163, he was sentenced to five years for second degree burglary, with three years in local custody and two years on mandatory supervision. In case No. 16CM-2264, he was sentenced to 16 months in prison for possession of an illegal weapon, a billy club (§ 22210).
C. First Marsden Hearing
On October 14, 2016, the court conducted a pretrial conference in this case.
Mr. Stover advised the court that he told defendant about a possible plea offer. He also told defendant there was a possible issue based on the People's alleged failure to timely prosecute him, but the current case was still within the statute of limitations and the People would have to refile. In response, defendant said he wanted another attorney.
The court conducted a Marsden hearing. Defendant said Mr. Stover had been his attorney in "the last case," and they had a conflict of interest. Defendant said his wife had called Mr. Stover, he once hung up on her, and he did not pay much attention to him. Defendant said he had "foul words" with Mr. Stover.
Defendant said that the prior week, Mr. Stover told him about a plea offer, but he did not understand it. Defendant was upset that Mr. Stover came into the court and talked about the plea offer, and he should have explained it to him instead.
Defendant complained that he had not met with Mr. Stover about the case, he asked for discovery and did not get anything, he was not being treated fairly, and he did not feel Mr. Stover would give him a "fair shake" because he had previously "spoken bad words" to him. Defendant said he had "witnesses" for the case, but Mr. Stover had not asked about them.
In response, Mr. Stover said defendant was "not happy" about what happened in his prior case. Mr. Stover could not remember having "a cussing incident" with defendant, and defendant had never been abusive toward him.
Mr. Stover admitted he had not visited defendant at the jail, but explained he was trying to determine an issue about defendant's prior cases. He explained the current charges had created "a convoluted sentencing issue" because defendant's other cases had already been resolved. Mr. Stover was upset with the district attorney's office and believed the current charges had been improperly filed against defendant after the resolution of the other cases. Mr. Stover explained that a conviction in the current case would "convert everything we agreed to in the past [case] also to a state prison commitment, which I think significantly is detrimental to [defendant]."
Mr. Stover said he had briefly talked about discovery with defendant that morning, but also explained that he was going to try and set aside the current case. Mr. Stover was concerned about the potential improper filing issue, and it was a "serious injustice" that the current case was not resolved with defendant's other matters. Mr. Stover had not investigated the current case yet "because we haven't gotten beyond in my opinion the threshold issue of the People's position in this matter. And maybe a collateral attack on this Complaint based on timeliness."
Mr. Stover said he understood why defendant was upset, and "if it were me, I would probably be more upset than him, because this is a significant difference in his exposure. [I]f I had known about this case at the time, we probably would have been negotiating something very different than what we agreed to on the other cases."
Mr. Stover said that he tried to explain these matters to defendant that morning, but defendant got upset, and he ended the meeting to calm things down.
Defendant replied that he still did not know what was going on in this case.
1. Denial of the Marsden Motion
The court explained to defendant that Mr. Stover had not discussed the case or discovery with him because he was more concerned about the timing of the current charges and whether they should have been addressed when his other cases were resolved because they would raise complicated sentencing issues.
The court denied defendant's Marsden motion and found Mr. Stover had not been inadequate or ineffective in his representation, and there was no evidence of an irreconcilable conflict. The court said that defendant had legitimate concerns that Mr. Stover agreed with, but he was looking into the procedural matter about the other cases, and he did not have time to discuss discovery with him yet. Defendant said that made sense to him.
After the conclusion of the hearing, the matter resumed in open court. Mr. Stover stated the People had offered a three-year term to run concurrent to the five-year term that defendant had already received in the prior case, but the entirety of the five-year term would be converted to a state prison sentence instead of a split term. The court granted Mr. Stover's request for a continuance and set the preliminary hearing for November 2017.
D. Further Pretrial Proceedings
On October 27, 2016, the court conducted another pretrial conference. Mr. Stover said the People had offered an aggregate term of three years to encompass both the current case and the resentencing on the prior cases, and defendant had rejected the offer.
On November 8, 2016, the court convened the preliminary hearing. Defendant refused to sit next to Mr. Stover and said it was a "set up." Mr. Stover said defendant faced a maximum exposure of 10 years. The People had made another offer of three years for the criminal threat charge, concurrent to the term he was already serving. Defendant refused the offer. The court conducted the preliminary hearing and defendant was held to answer.
At the preliminary hearing, Officer Jurdon testified about his interview with the store's manager regarding the incident. The manager said that defendant and Shears had committed two prior thefts at the store. The manager did not know their names but gave their descriptions to store employees. The manager advised the employees to be on the lookout for them and not to give them the restroom keys because they had commonly gone into the restroom with stolen property, removed the items from the packages, and then left the store.
Officer Jurdon further testified that he interviewed Moore, who confirmed that the store's manager told him to be on the lookout for these two particular people because of their prior thefts. An investigator from the district attorney's office testified about his interview with Moore. Moore said he followed defendant and Shears around the store that day because the manager had alerted him to their presence. The evidence about defendant's prior thefts at the store was not introduced at trial.
On November 10, 2016, the information was filed.
On November 22, 2016, the court conducted the arraignment on the first amended information. Mr. Stover said the People made another offer for a three-year term to resolve all his cases, and defendant again rejected the offer even though he faced "double digits" in prison. Defendant interrupted and cursed Mr. Stover, and the court ordered defendant removed. The court directed Mr. Stover to advise defendant not to engage in similar outbursts during his trial.
E. Second Marsden Hearing
On January 17, 2017, the court convened the trial confirmation hearing, with the trial set to begin the following day.
Defendant said that he wanted to dismiss Mr. Stover as his attorney.
The court conducted another Marsden hearing. Defendant said he repeatedly told Mr. Stover to contact a certain witness, but he failed to do so. Defendant said his mother, his girlfriend, and other "people" had tried to call Mr. Stover, he never answered or returned the calls, and "he has no office." Mr. Stover had not shared or reviewed discovery with him, and he had not done anything on the case.
Defendant said Ms. Shears, his girlfriend, had tried to call Mr. Stover, and defendant wanted her to be subpoenaed but, it did not happen.
In response, Mr. Stover said he had the same office and telephone number since 2000. He had not been contacted by anyone who claimed to have information about defendant's case or by anyone claiming to be defendant's mother.
As for witnesses, Mr. Stover said he knew that defendant wanted him to subpoena Shears. Mr. Stover had made two attempts to serve her with a subpoena, but they were unsuccessful. Shears had previously contacted Mr. Stover once in the courtroom: "I advised her that I could not discuss the details of the case because she would be a potential co-defendant in the matter and she would need the advice of counsel."
Mr. Stover stated that based on the police reports and his conversations with defendant, Shears was the only other person present at the time of the incident. Mr. Stover had warned defendant that Shears would "technically be an uncharged co-defendant in this matter based on the information that was elicited at the preliminary hearing," and he advised defendant that the trial evidence would be the same as the preliminary hearing. "[T]here's very little that I could ask her without the presence of another attorney. I can't compel her to testify."
Mr. Stover said he reviewed and discussed the case with defendant every time he had been in court. He told defendant the evidence would be virtually the same as presented at the preliminary hearing. "The only other addition is the video without sound," of defendant and Ms. Shears in an aisle of the store "doing something which really isn't very well seen, but is reported to be them tearing apart packages." "[I]t shows them in an aisle apparently - it's reported that they're taking packages apart, because that's where the packages are identified as later being found but they aren't actually seen in the video."
The court asked Mr. Stover if he had watched the video with defendant. Mr. Stover said he had not shown the video to defendant. "Like I said, the video doesn't really show much. It shows two people in an aisle, but you can't really tell what they're doing."
"THE COURT: I understand that. But you viewed the video and you discussed the video with him?
"MR. STOVER: Yes.
"THE COURT: The contents of it? Okay. What have you - he indicates nothing has been done on his case, have you done anything on his case?
"MR. STOVER: Beyond that, no, your Honor, because it really comes down to the allegations at last as to the [section] 422, or the allegations from the store employee as to what he said to him. And then as to the theft, there is no physical evidence, nothing was retrieved, okay, only a statement that he said he thought he saw him take something red when he ran. There was nothing found on [defendant] when he was found by the police or interviewed by the police.
"THE COURT: So what you've done on the case is attempt to serve Miss Shears, gone over the video gone over the police reports and gone over that with [defendant]?
"MR. STOVER: Yes, your Honor."
The court asked defendant to respond. Defendant said Mr. Stover "has not gone over nothing [sic] with me," he never talked to him about Shears, and he only said things when defendant asked questions. Defendant knew there was a video, but Mr. Stover did not tell him what was on it or that he had watched it. "Only reason I knew what was on the - generally on the video, only reason I knew because at the prelim what happened, when they came and testified." Mr. Stover only discussed plea offers with him and never talked about the police reports.
1. Denial of Marsden Motion
The court denied defendant's Marsden motion and found Mr. Stover was providing adequate representation and the parties were not embroiled in an irreconcilable conflict.
Defendant's trial began the next day. He did not make any additional Marsden motions.
As explained above, after defendant was convicted in this case, the court sentenced defendant to five years for robbery and three years for the prior prison term enhancements, and then imposed concurrent terms for defendant's two prior cases.
The court did not abuse its discretion when it denied both of defendant's Marsden motions. It asked defendant to fully state his concerns and extensively questioned Mr. Stover about each of defendant's complaints.
At the first Marsden hearing, which was held before the preliminary hearing, defendant complained that counsel had not contacted his witnesses or reviewed the case with him. Defense counsel explained that he had not discussed the case with defendant yet because he believed the People had improperly filed the current charges shortly after resolving his two other cases, and he was trying to determine whether defendant had suffered prejudice as a result. The court did not abuse its discretion in rejecting defendant's complaints on this point.
At the second Marsden hearing, which occurred the day before trial, defendant complained that defense counsel had not talked about the case with him, interviewed his witnesses, or subpoenaed Shears. Defendant also claimed his "people" could not reach counsel, he had failed to return calls from his mother, and he did not have an office. Mr. Stover said he had the same office and telephone number for many years, he did not hang up on anyone claiming to have information about this case, and he had not received any messages described by defendant. The court did not abuse its discretion when it implicitly found Mr. Stover's responses to these allegations to be credible.
The court asked Mr. Stover to respond to defendant's complaints about his alleged failure to prepare or review discovery with him. Counsel said he had twice attempted to serve Shears with a subpoena but had been unsuccessful. Counsel had explained to defendant that Shears would be an uncharged codefendant as an aider and abettor, an attorney would likely be appointed to advise her if she had been subpoenaed, and he could not talk to her without the presence of an attorney.
Counsel said he had discussed the case with defendant and told him the evidence would be the same as presented at the preliminary hearing. Counsel said there were no other witnesses, and he intended to argue that defendant's conduct did not constitute a criminal threat and that a robbery did not occur.
Finally, the court asked counsel to explain whether he had reviewed the store's videotape with defendant. Counsel said the videotape showed defendant and Shears doing something in the aisle where the empty packages were later found. Counsel said he did not show the video to defendant, but he discussed the video with defendant and explained it "doesn't really show much." The videotape was not shown at trial.
During the second Marsden hearing, defendant said he heard about the videotape during the preliminary hearing. None of the witnesses at the preliminary hearing referred to a videotape. --------
We find the court properly conducted the Marsden hearings, it fully inquired into defendant's complaints and obtained explanations from defense counsel. The court did not abuse its discretion when it denied both motions and found that replacement of counsel was not required and there was no deterioration in the attorney-client relationship.
The judgment is affirmed.
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________