IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 22, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CLIFFTON RAY CURRIE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F05535)
The opinion of the court was delivered by: Butz , J.
P. v. Currie
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Cliffton Ray Currie guilty of first degree robbery (Pen. Code, § 211),*fn1  first degree residential burglary (§ 459), two separate counts of inflicting injury on a former cohabitant (§ 273.5, subd. (a)), and assault by force likely to produce great bodily injury on another victim (§ 245, subd. (a)(1)). The jury also found defendant's prior felony conviction of assault with a deadly weapon to be true. With enhancements, the trial court sentenced defendant to 21 years in state prison.
Defendant has two claims on appeal. First, he contends the trial court erred by denying his Marsden*fn2  motions to appoint him new counsel at trial. Second, he claims his conviction for residential burglary must be reversed because he had the alleged victim's permission and consent to enter the residence with a key. We disagree and shall affirm.
The offenses here arose from two incidents of domestic violence, one on August 6, 2010, and the other about two weeks later on August 21.
On August 6, 2010, Deputy Sheriff Greg Saunders responded to "a domestic violence incident" at K.C.'s residence. K.C. was at her apartment with a male visitor, J.W., when she heard someone trying to open the front door. When J.W. went to the front door, the door flew open, hitting him in the face; defendant was standing in the doorway. K.C. tried to intervene, and defendant grabbed her and flung her into the living room.
J.W. left the apartment. Defendant began to question K.C. about her relationship with J.W., got angry, and punched her in the left side of her neck with a closed fist. K.C. fell to the floor as a result of being struck. Defendant then told his cousin, who was also present, to watch the door while he went into K.C.'s bedroom and grabbed her cell phone. Defendant then took K.C.'s keys from the kitchen counter. When K.C. attempted to retrieve her cell phone from defendant, he struck her, again with a closed fist, in her left eye area. Defendant and his cousin then left the apartment, and K.C. followed them into a parking lot. Crime Scene Investigator Sam Bates arrived at K.C.'s apartment and noticed that she had swelling and redness on her left cheek; that J.W. had a slight laceration along his left eyebrow; and that the apartment door was damaged.
On August 21, 2010, Deputy Sheriff Jeffrey Wallace and other officers were dispatched to do a welfare check at K.C.'s residence. K.C. told Deputy Wallace she and defendant had previously lived together in a relationship. K.C. said defendant did not have a key to her apartment. She also had a cut on her lip because, she said, defendant threw a plastic lighter at her and hit her in the mouth. She also recounted the events of August 6 to Deputy Wallace and said defendant "kicked open the door" and "beat the shit out of [her]."
At trial, K.C.'s testimony was inconsistent with her statements to the two responding officers, Deputies Saunders and Wallace, as well as inconsistent with statements she had made to a 911 operator. At trial, K.C. claimed those statements were lies to get her children back from Child Protective Services. She said that defendant had a key to her apartment, that he never hit her, and that they were still together at the time of the incidents.
I. Marsden Motions
A. Procedural Background
Defendant contends the trial court committed reversible federal constitutional error under the Sixth Amendment by denying defendant's Marsden motions to have new counsel appointed to represent him at trial. We disagree.
Defendant made three Marsden motions. His first Marsden motion was made before the start of trial on November 24, 2010. Defendant had four main concerns regarding his counsel: (1) defendant had five witnesses that his attorney refused to call; (2) his counsel did not speak up for him at the preliminary hearing; (3) his attorney called him a "black-ass monkey," laughed, and walked off when defendant confronted him about the name-calling; and (4) his attorney had a conflict of interest because the public defender's office had previously represented K.C.
In response to defendant's allegations, defense counsel countered that the five witnesses would not be called because they covered issues that were not in dispute. Counsel formed his defense theory around the recanting victim, K.C. Counsel said he did speak up on defendant's behalf at the preliminary hearing, and even asked for a dismissal because the victim was lying. At that hearing, counsel did not ask K.C. some of the questions defendant had requested because counsel did not want to impeach K.C., especially since K.C. was testifying on defendant's behalf with her recantation. Counsel, who asked that the record reflect that both he and defendant were "Black male[s]," denied name-calling on his part, but admitted he laughed at defendant when defendant called him names. With respect to the conflict of interest, counsel admitted the public defender's office had previously represented K.C., but claimed there was no actual conflict because he did not personally represent K.C. and he never looked at her files.*fn3 Counsel admitted that communication with defendant was not great, but mentioned defendant would have the same problem with any attorney. The court denied defendant's request for substitution.
In his second Marsden motion--made on the first day of trial, December 9, 2010--defendant complained that counsel was not discussing the motions he was making. Defendant again complained about the five uncalled witnesses, counsel's alleged name-calling, counsel's failure to speak on his behalf, and the issue regarding counsel's failure to get defendant's key to the victim's apartment.*fn4 Defendant also alleged that counsel was speaking to K.C. on behalf of the district attorney's office.
In response to defendant's second Marsden motion, counsel admitted the allegations of communication problems were partially true, but explained defendant is verbose and says whatever he wants. Counsel admitted that he did not want to impeach K.C. because her recantation was beneficial to defendant's case. As for the witness testimony defendant wanted counsel to present, counsel described his analysis of that evidence as "incredibly collateral." The trial court denied defendant's second substitution request and attributed the disagreements between defendant and his counsel to tactical disagreements and defendant's failure to understand the criminal trial process. Instead, the court found counsel was making tactical decisions beneficial to defendant, especially with K.C.'s recanting testimony.
Defendant made his third and final Marsden motion toward the end of trial on December 20, 2010. Defendant alleged that his counsel (1) told him he could get a life sentence; (2) was working with the victim; and (3) failed to introduce letters into evidence that the victim had written.
In response, counsel denied telling defendant that he could receive a life sentence, and the court acknowledged defendant was reminded at the start of jury selection that the prosecution would not seek a life sentence. Counsel admitted contacting the victim, but only to return her calls and urge her not to flee to avoid testifying. Counsel responded that various attorneys at the public defender's office agreed the letters from K.C. were not particularly helpful to defendant's case. The letters discussed how much K.C. loved defendant and that she would drop the charges if defendant let her look at his cell phone. Counsel thought the collusion and communication problems between K.C. and defendant would be harmful to defendant's case. Again, counsel reiterated that the best tactic for defendant's trial was to allow K.C. to recant. The court held counsel did not improperly represent defendant. Any disagreements between defendant and counsel concerned tactics, and the evidence that counsel was eliciting from K.C. was consistent with the defense's theory.
Substitute counsel should be appointed if "the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel" or if "the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Smith (1993) 6 Cal.4th 684, 696.) The trial court is vested with discretion in deciding a Marsden motion, and the trial court's decision will be overturned on appeal only if there is "clear abuse of that discretion." (Smith, at p. 696.)
Defendant claims there was a clear breakdown in the communication between him and his attorney that resulted in an irreconcilable conflict between them, and thus the trial court erred by refusing to appoint substitute counsel. Defendant cites People v. Robles (1972) 2 Cal.3d 205 (Robles) and People v. Lindsey (1978) 84 Cal.App.3d 851 (Lindsey) to support his claims.
In Robles, the defendant testified at trial against his attorney's wishes. (Robles, supra, 2 Cal.3d at p. 214.) The Robles court held this was just one factor in determining whether counsel should be discharged, and noted that only rarely will disagreement about whether the defendant should testify signal a breakdown in the attorney-client relationship. (Id. at p. 215.) Defendant's reliance on Robles is misguided in light of these distinct facts. (Ibid.)
In Lindsey, the defendant and his appointed counsel disagreed about which individuals should be called as witnesses. (Lindsey, supra, 84 Cal.App.3d at pp. 859-860.) The appellate court held the decision regarding which witnesses to call is a tactical decision left to trial counsel. (Id. at p. 859.) The Lindsey court found the breakdown in the attorney-client relationship was caused by Lindsey's own stubbornness and failure to cooperate. (Id. at p. 860.) The same is true for defendant here because he called his attorney names, attempted to dictate trial tactics, and was disruptive during his trial.
Also, it is well established that reasonable disagreements about tactics are insufficient to compel discharge of appointed counsel. (People v. Smith (2003) 30 Cal.4th 581, 606, citing People v. Hart (1999) 20 Cal.4th 546, 604.) In Smith, the defendant complained that his counsel inadequately cross-examined a witness, failed to call certain witnesses, did not follow his advice, and was not trustworthy. (Smith, supra, 30 Cal.4th at pp. 603-605.) The Smith court ruled that a disagreement regarding trial tactics is generally insufficient to discharge counsel and, therefore, there was no abuse of discretion. (Id. at p. 606.)
In this case, the record clearly reflects that the differences between defendant and counsel arise from tactical disagreements. Defendant's chief complaints include counsel's failure to call certain witnesses and introduce certain evidence.*fn5 According to the trial court, these grievances concerned tactical disagreements, and we agree. Counsel's effort to encourage the alleged victim to testify was the best evidence in defendant's favor. The trial court found that counsel's tactics concerning K.C.'s recantation were consistent with the defense theory. Additionally, based on defendant's comment that counsel is required to call any witnesses he requests, it was clear defendant misunderstood that counsel makes the tactical decisions in the case.
Furthermore, "a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict." (People v. Smith, supra, 6 Cal.4th at p. 696.) Defendant's conflict with counsel seems to be of his own doing, and counsel even admitted that defendant's issues with counsel would arise regardless of his attorney. Not only did defendant call counsel names, but defendant seemed to engage in calculated outbursts in front of the jury during trial (e.g., uttering that no one ever told him he could get "life for this shit," when he had been informed previously that such a sentence was not possible).
We conclude the trial court did not abuse its discretion in denying defendant's Marsden motions.
II. Substantial Evidence of Burglary
Defendant further contends that his residential burglary conviction needs to be reversed because he had the victim's (K.C.'s) permission and consent to enter the apartment with a key. We disagree. Because there was substantial evidence that allowed a reasonable jury to convict defendant of first degree burglary, we shall uphold that conviction.
On appeal, we will uphold the conviction if a reasonable trier of fact could have found the elements of the crime proven beyond a reasonable doubt. (People v. Cuevas (1995) 12 Cal.4th 252, 274.) Although this case involves a recanting victim, there is still substantial evidence that defendant did not have the right to enter the apartment. Evidence presented through J.W.'s 911 call, K.C.'s 911 call, Deputy Saunders's testimony, and Deputy Wallace's testimony would allow a reasonable jury to find defendant guilty of first degree burglary.
There is substantial evidence that defendant did not have a possessory right or K.C.'s consent to enter the apartment. In J.W.'s 911 call, he said K.C.'s ex-boyfriend (referring to defendant) tried to bust in the door and started hitting K.C. In K.C.'s 911 call, she stated that her "ex[-]boyfriend [(referring to defendant)] just came over and kicked in [her] door, stole [her] cell phone and [her] car keys and . . . socked [her] in [her] face." When the operator asked her if she knew where defendant lives, K.C. responded that he "stays on Polk Avenue [sic]" in number 89 of a townhome complex; this suggests he did not live with her at the time.
When Deputy Saunders took K.C.'s statement regarding the August 6 incident, she told him the front door flew open and hit J.W. in the face.
Deputy Wallace took K.C.'s statement regarding the August 21 incident. At that time she represented that the relationship was on and off for a couple of months; that she no longer lived with defendant; and that they broke up two and a half months earlier because defendant would beat her.
Defendant contends K.C.'s testimony at trial is dispositive because, as the burglary victim, she testified that defendant continued to live with her and had a key to the apartment. Although the victim's testimony weighs in favor of the defense, the standard on appeal is not whether there is substantial evidence that would lead a jury to come to a different conclusion, but rather, whether the conviction at issue is supported by substantial evidence. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
Defendant relies heavily on People v. Gauze (1975) 15 Cal.3d 709 to support his contention that he had a possessory right to enter the apartment with the consent of the alleged victim. The facts of Gauze are distinguishable. In Gauze, the defendant pointed and fired his gun at his roommate. (Id. at p. 711.) Among his convictions, defendant Gauze was found guilty of burglary by entering his own apartment with the intent to commit assault. (Ibid.) The Supreme Court reversed the burglary conviction and held that the "defendant [could not] be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation." (Id. at p. 714.)
The facts of the present case differ from Gauze because defendant's possessory interest in the victim's apartment and consent to enter is questionable at best, and the victim's trial testimony that defendant had a key and was living in the apartment conflicted with the 911 calls and her statements to Deputies Saunders and Wallace. Additionally, defendant is not listed on the lease; nor does he contribute to the rent. Finally, the jury was properly instructed that if they found defendant had a possessory interest or consent to enter, no burglary had taken place.
We conclude there is substantial evidence supporting the burglary conviction.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. DUARTE , J.