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People v. Henning

October 14, 2009; as modified October 27, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAISEN LEE HENNING, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Placer County, Colleen M. Nichols, John L. Cosgrove, and Charles D. Wachob, Judges.

The opinion of the court was delivered by: Sims, J.

CERTIFIED FOR PUBLICATION

After a marathon session of playing the Grand Theft Auto video game, and while hallucinating under the influence of illicit drugs, defendant Jaisen Lee Henning donned a black ski mask and wielded a sawed-off shotgun in an attempt to rob a randomly chosen business. Fleeing from the scene, Henning led police officers on a high-speed car chase before being apprehended.

A jury convicted defendant of burglary (Pen. Code, § 459),*fn1 attempted robbery (§§ 211, 664), assault with a firearm (§ 245, subd. (a)(2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (§ 12020, subd. (a)(1)). On appeal, defendant argues that (1) he should have been allowed to plead not guilty by reason of insanity (NGI) because he committed his crimes while believing he was merely following the goals of the video game he had been playing, (2) his request for a second substitution of appointed counsel should have been granted pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and (3) CALCRIM No. 220 failed to instruct the jury that each element of the charged offenses required proof beyond a reasonable doubt.

Following precedent of the California Supreme Court, we shall conclude the trial court erred in refusing to allow defendant to exercise his personal statutory right to enter an NGI plea. The trial court further erred in failing to remove defense counsel who refused to allow defendant to enter his NGI plea. However, both of these errors are harmless in light of abundant, uncontradicted evidence in the record demonstrating there was no factual basis for a finding of not guilty by reason of insanity.

We also reject defendant‟s frivolous attack on CALCRIM No. 220.

We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On the afternoon of July 7, 2007, defendant finished a 10-hour session of playing the video game Grand Theft Auto: San Andreas. Grand Theft Auto engages players in "missions" to commit murder, drive-by shootings, burglary, other violent crimes, and theft. A player learns of missions from other characters in the game.

Defendant was hallucinating while playing Grand Theft Auto. He had been awake for about a week due to his use of crystal methamphetamine. Every day that week, defendant used some combination of methamphetamine, alcohol, ecstasy, crack cocaine, and hallucinogenic mushrooms.

As he finished playing the video game, defendant imagined voices from a little green person telling him, "It‟s time to do this. You can do this. Let‟s do this." He got into his car and drove to a randomly chosen location.

Shortly before 3:00 p.m., defendant walked into the Rocklin Days Inn lobby wearing a black ski mask and gloves, and carrying a sawed-off shotgun. Vijay Vohra, a Days Inn employee, and Benjamin Salazar, a plumber contracted by Days Inn, were standing behind the counter. Defendant told Salazar to hang up the telephone on which he had been speaking.

Pointing the gun at Vohra, defendant ordered him to open the drawers behind the counter. Defendant then pointed the gun at Salazar, and ordered him to open the drawers. Salazar explained he could not open any drawers because he was a plumber and not an employee of the Days Inn. Vohra hid behind Salazar and stated that he worked for Salazar. Defendant seemed surprised by the responses of Salazar and Vohra, and he stopped to think. After a minute, defendant instructed them to hand over their wallets.

Salazar refused to surrender his wallet, but offered defendant the $2 it contained. Defendant then noticed his car was rolling down the inclined driveway, and ran after it without taking anything.

Placer County Sheriff‟s Detective Michael Davis was running an errand during his vacation when he happened to drive by the Days Inn. Davis noticed a car blocking the street in front of the Days Inn. He then saw defendant run out of the Days Inn and get into the car, still wearing a mask and holding a shotgun. Davis followed defendant as he sped away. Davis called his dispatcher and described the vehicle and its location. He was unable to relay the license plate number because it had been obscured by duct tape.

Officers in marked police vehicles took over the pursuit. Defendant led the police on a high-speed chase in which he drove erratically through heavy traffic. He was apprehended after the police forced him to turn into a parking lot.

Defendant was taken out of his car and handcuffed. He appeared calm. A search of the car yielded a backpack containing a sawed-off shotgun.

In July 2008, the Placer County District Attorney filed an amended information charging defendant with burglary (§ 459), two counts of attempted robbery (§§ 211, 664), two counts of assault with a firearm (§ 245, subd. (a)(2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (§ 12020, subd. (a)(1)). The information further alleged defendant used a firearm in committing the attempted robberies and assaults. (§ 12022.53, subd. (b), 1203.06, subd. (a)(1).)

Defendant pled not guilty, and the matter was tried to a jury. The jury found defendant guilty on all counts and found true the arming enhancement allegations.

The trial court sentenced defendant to an aggregate prison term of 17 years four months, comprised of two years for attempted robbery, eight months for the second attempted robbery, eight months for evading police officers, a 10-year enhancement for use of a firearm in committing the first attempted robbery, and another three-year four-month enhancement for use of the firearm in the second attempted robbery.

Sentences for the burglary, and two counts of assault with a firearm were stayed pursuant to section 654.

Appellant timely filed a notice of appeal.

DISCUSSION

I.

Failure to Allow Defendant to Enter an NGI Plea Defendant contends the trial court erred in disallowing him from entering an NGI plea over the objection of defense counsel. As we shall explain, a defendant has the right to personally enter the plea of his choice regardless of what his counsel thinks of the merits of an NGI plea. Although the trial court erred in failing to allow defendant to enter an NGI plea, we find the error harmless because the record affirmatively demonstrates the lack of credible evidence for an insanity defense.*fn2

A.

In January 2008, defendant moved to substitute his appointed attorney pursuant to Marsden, supra, 2 Cal.3d 118. One of the grounds for defendant‟s motion was his dissatisfaction with defense counsel‟s refusal to allow him to enter an NGI plea. At the conclusion of the Marsden hearing (heard by Judge Colleen M. Nichols), the court ordered a substitution of counsel.

In July 2008, defendant again made a Marsden motion (heard by Judge John L. Cosgrove). Defendant expressed a lack of trust in his attorney as well as displeasure that his attorney was a member of the same law firm as his first appointed counsel. Defendant also stated his wish to enter a plea of NGI. During the hearing, the following colloquy occurred:

"[DEFENSE COUNSEL]: Just to be clear, Your Honor, [defendant] is desirous of entering a plea [of not ...


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