(Super. Ct. No. 09F01867)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
We strongly discourage anyone from choosing crime as a career. Nevertheless, as with any pursuit in life, one should be prepared. For instance, if you are planning to carjack someone, you should make sure you can drive a stick-shift.
Defendant Anthony Jones and an accomplice tried to take Garrett Freitas's car at gun point. The duo were apparently unaware that starting a manual transmission vehicle requires depression of the clutch pedal. Unable to start the car, defendant turned the gun on Freitas and ordered him to drive, converting what would have been a straightforward carjacking into attempted carjacking and kidnapping for purposes of robbery. About half a mile away, defendant told Freitas to pull over and call someone who had drugs or he "wouldn't be going home." Police arrived as Freitas scrolled through his cell phone contacts. Defendant fled on foot with the gun and was found a short distance away hiding in a backyard shed.
Defendant pled guilty to being a felon in possession of a firearm. He was then tried by jury and convicted of attempted carjacking and kidnapping for robbery. The jury also found that defendant personally used a firearm during the commission of the crimes. Following a bifurcated hearing, the trial court found that defendant had been convicted of three prior serious felony offenses (Pen. Code, § 667, subd. (a))*fn1 , which mandated sentencing under the three strikes law (§§ 667, subd. (b)-(i), 1170.12). Defendant was sentenced to an aggregate indeterminate term of 50 years to life plus a consecutive determinate term of 25 years for the enhancements.
On appeal, defendant contends: (1) the trial court erred in imposing sentence under the three strikes law because there was insufficient evidence that defendant's prior felony offenses, which were earned in New York state, constituted serious felony offenses under California law; (2) the trial court violated defendant's constitutional right to counsel by denying five motions made under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace his appointed counsel; (3) the trial court also violated defendant's constitutional rights by denying his motion to dismiss the case, which was based on the assertion that his appointed counsel collaborated with the prosecution; (4) the trial court further erred by failing to suspend the proceedings after entertaining a doubt concerning defendant's competence to stand trial; and (5) the cumulative prejudice arising from the foregoing assertions of error requires reversal.
The Attorney General concedes there was insufficient evidence that defendant's New York convictions qualified as strikes within the meaning of the three strikes law. We agree and remand the matter to the trial court for the limited purpose of determining whether these prior convictions are strikes. Defendant's remaining claims lack merit. As we shall explain, the trial court made an adequate inquiry into defendant's complaints concerning his appointed counsel. Nor did the trial court abuse its discretion in determining that defendant failed to demonstrate that denial of substitution would substantially impair his constitutional right to the assistance of counsel. Defendant's claim that the trial court violated his constitutional rights by denying his motion to dismiss the case is forfeited because defendant did not adequately brief this issue on appeal. Defendant's assertion that the trial court prejudicially erred by failing to suspend the proceedings after entertaining a doubt concerning his competence to stand trial fails because the record does not disclose that the trial court ever entertained such a doubt. Finally, having found no trial error, prejudicial or otherwise, defendant's assertion of cumulative prejudice must also fail. Accordingly, we affirm defendant's convictions, vacate the sentence, and remand to the trial court for the limited purpose of determining whether defendant's prior New York convictions are strikes under the three strikes law.
During the early morning hours of March 9, 2009, Freitas stepped outside his apartment on Walnut Avenue in Carmichael to smoke a cigarette. As he did so, defendant and another man approached quickly from the entrance to the apartment complex. Defendant was wearing black pants, a red "puffy" jacket, and a red "beanie." The other man, Ronnie Rentie, was dressed entirely in black. Defendant pulled a semi-automatic handgun and chambered a round as they approached. Freitas was knocked to the ground by either defendant or Rentie and yelled that he did not have any money. Defendant pointed the gun at Freitas and told him to "be quiet" while Rentie went through his pockets. Rentie took his cell phone, car keys, cigarettes, and pocket change. Defendant and Rentie then walked away with their acquisitions.
About a minute later, while Freitas was still on the ground, defendant and Rentie returned and asked where his car was parked. Freitas pointed to his 1992 Toyota Tercel. Defendant grabbed Freitas, ordered him over to the car while holding the gun to his back, and pushed him to the ground behind the car. Defendant got in the car and tried to start the vehicle. Because he did not depress the clutch pedal, the ignition made a clicking sound, but the car did not start. Defendant then got out of the car and told Freitas to "get in and drive." Freitas complied, getting in the driver's seat while Rentie got in the back seat and defendant got in the front passenger seat.
Freitas pulled out of the apartment complex and drove north on Walnut Avenue. With the gun pointed at Freitas, defendant told him to "look through [his] phone and find drugs for them," threatening that if he did not find drugs, he "wouldn't be going home." Rentie returned the cell phone so that Freitas could comply with the demand. Freitas explained that he did not know anyone with drugs. Defendant then told Freitas to turn onto Modoc Way, turn off the headlights, and pull over. Freitas again complied. He then scrolled through his cell phone contacts in an effort to find drugs for defendant and Rentie. About 15 to 20 seconds later, a Sacramento County Sheriff's Department patrol car pulled up behind the Tercel with the overhead lights on. Defendant warned Freitas: "Don't say anything or I'm going to shoot you."
The fast response of law enforcement was due to Freitas's girlfriend, Lacey Paulson, who heard the commotion outside the apartment, saw her boyfriend being abducted from the living room window, and called 911. Sergeant Charles Turner responded to the apartment, spoke briefly with Paulson, and then found the Tercel about half a mile from the apartment. When Turner approached the driver's side of the vehicle, he asked Freitas if "everything was okay." Freitas responded that "everything was fine," but appeared to be nervous, so Turner ordered him out of the vehicle and brought him back to the patrol car. At the patrol car, Freitas said: "God, please help me. Please help me."
As another patrol car arrived on the scene, defendant got out of the Tercel. Both Sergeant Turner and the new arrival, Deputy Darren Benato, ordered defendant to get back in the car. Defendant responded that the car was not his and started to back away from the car. Ignoring several commands to get down on the ground, defendant turned and ran away. At this point, Rentie also emerged from the car and was detained by Sergeant Turner without incident. Deputy Benato got back into his patrol car to pursue defendant, but was unable to find him.
About an hour later, Sergeant Turner was advised that a K-9 unit that was searching the surrounding neighborhood had alerted to a residence a short distance from where defendant had fled from the Tercel. Defendant was found hiding in a shed in the backyard of that residence. Surrounded by several sheriff's deputies, defendant opened the shed and ran through the backyard. One of the deputies shot defendant as he tried to jump over a retaining wall. A police dog then pulled defendant off of the wall. A loaded handgun fell from defendant's waistband as the deputies took him into custody. Paramedics arrived a short time later, treated defendant for gunshot and dog bite wounds, and transported him to the hospital.
Prior Serious Felony Convictions
Defendant contends there was insufficient evidence that his three prior New York convictions (a 1989 third-degree attempted robbery, a 1991 second-degree robbery, and a 1997 third-degree attempted robbery) constituted strikes within the meaning of the three strikes law. We agree.
"To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California." (People v. Avery (2002) 27 Cal.4th 49, 53; see § 1170.12, subd. (b)(2); see also § 667.5, subd. (f).) In determining whether an out-of-state prior is a serious felony under the three strikes law, "'the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all the elements of the comparable California serious felony offense.' [Citation.] [¶] '"[W]hen the record does not disclose any of the facts of the offense actually committed" [citation], a presumption arises that the prior conviction was for the least offense punishable [citation]. However, the record need only contain additional evidence from which the court can reasonably presume that an element of the crime was adjudicated in the prior conviction. [Citation.]' [Citation.]" (People v. Zangari (2001) 89 Cal.App.4th 1436, 1440; People v. Myers (1993) 5 Cal.4th 1193, 1195; People v. Valenzuela (2010) 191 Cal.App.4th 316, 321.)
Robbery is a strike offense. So is attempted robbery. (§§ 1170.12, subd. (b)(1), 1192.7, subd. (c)(19), (39).) However, California and New York define robbery differently. In California, "[r]obbery is the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his [or her] will, accomplished by means of force or fear." (§ 211.) Thus, robbery is a form of aggravated larceny in which "the elements of larceny are intertwined with the aggravating elements to make up the more serious offense." (People v. Gomez (2008) 43 Cal.4th 249, 254.) "Larceny requires the taking of another's property, with the intent to steal and carry it away. [Citation.] 'Taking,' in turn, has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asportation.' [Citations.]" (Id. at pp. 254-255.) "To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his [or her] presence." (Id. at p. 254.)
In New York, robbery is defined as follows: "Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: [¶] 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or [¶] 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." (N.Y. Pen. Law, § 160.00.) The practice commentary following this provision points out that, unlike the California robbery statute, there is "no requirement that the defendant take the property 'from the person or in the presence of another,' as was required under the former [New York] Penal Law [§ 2120]. Accordingly, a culprit who meets his [or her] victim a few blocks from the victim's store, knocks the victim unconscious, and then enters the victim's store and steals property from the store may be guilty of robbery; similarly, a culprit who forces a bank president to telephone his bank to direct an employee to take money from the safe and give it to an accomplice may be guilty of robbery." (Prac. Com. foll. N.Y. Pen. Law, § 160.00; see also People v. Smith (1992) 79 N.Y.2d 309, 314 ["the Commission determined that the proposed robbery statute was deficient in that it . . . contained a 'from the person or in the presence of' limitation which would exclude a variety of forcible thefts that were 'robberies in spirit'"].)
Thus, because robbery in New York can be committed without taking property from the victim or in his or her presence, the record of defendant's 1991 robbery conviction must contain evidence from which the trial court could reasonably presume that defendant in fact took property from the victim or in his or her presence. And because "[a]n attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission" (People v. Medina (2007) 41 Cal.4th 685, 694-695), in order for defendant's 1989 and 1997 attempted robbery convictions to qualify as strikes, the record must contain evidence from which the trial court could reasonably presume that defendant specifically intended to take property from the victims or in their presence and took a direct but ineffectual step toward doing so. The Attorney General concedes that the record contains no such evidence. Accordingly, we must remand the matter to the trial court for a limited retrial on the prior conviction allegations. (See Monge v. California (1998) 524 U.S. 721, 734 (Monge II) [141 L.Ed.2d 615, 628]; see also People v. Trujillo (2006) 40 Cal.4th 165, 174.)
Defendant is also correct that New York robbery law does not always require asportation of the property forcibly taken from the victim. At first glance, California and New York laws appear to be identical with respect to asportation. (Compare People v. Gomez, supra, 43 Cal.4th at p. 255 ["the slightest movement may constitute asportation"] with People v. Reddick (1990) 159 A.D.2d 267, 267-268 [asportation is "an essential element of larceny" and "is proved by evidence of any 'appreciable changing of the location of the property involved'"]; see also People v. Woelfle (2009) 64 A.D.3d 1166, 1167 ["'a slight movement of the property constitutes sufficient asportation'"].) However, in New York, a defendant may be found guilty of vehicle theft without moving the vehicle at all. (See People v. Alamo (1974) 34 N.Y.2d 453, 457-458 [possession and control are the "paramount elements" of larceny, and the "actions needed to gain possession and control over a wallet, including movement of the wallet which, in itself, is merely an element tending to show possession and control, are not necessarily the actions needed to gain possession and control of any automobile"].) Not so in California. "California courts, following the common law, have long held that the 'taking' element of robbery requires that a defendant gain possession of the victim's property and asport or carry it away." (People v. Lopez (2003) 31 Cal.4th 1051, 1054, 1062 [applying this rule of robbery law to the carjacking statute and distinguishing California law from the New York rule announced in People v. Alamo, supra, 34 N.Y.2d 453].)
Here, the record does not disclose what property defendant forcibly took in 1991 and attempted to forcibly take in 1989 and 1997. However, his 1991 robbery conviction was in the second degree, which could have been a vehicle theft. (See N.Y. Pen. Law, § 160.10.) Thus, it is possible that this conviction did not involve the element of asportation, as that term is defined under California law. On remand, the trial court must determine whether the record of conviction contains evidence from which it can be reasonably presumed that defendant carried away the victim's property. With respect to defendant's 1989 and 1997 attempted robbery convictions, the trial court must determine whether there is evidence from which it can be reasonably presumed that defendant specifically intended to carry away the victim's property and took a direct but ineffectual step toward doing so.
We disagree, however, with defendant's assertion that New York law does not permit "claim of right" as a defense in a robbery prosecution. In California, "a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (People v. Tufunga (1999) 21 Cal.4th 935, 938.) The claim of right defense is limited "to forcible takings intended to recover specific personal property in which the defendant in good faith believes he has a bona fide claim of ownership or title," and does not extend to "robberies perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated." (Id. at p. 956.) New York law is in accord on this point. (See People v. Green (2005) 5 N.Y.3d 538, 544 [in a robbery prosecution involving a particular chattel, "a good-faith claim that the chattel belonged to the taker, would, if believed by the jury, negate the element of larcenous intent"]; see also People v. Reid (1987) 69 N.Y.2d 469, 475-476.) Thus, the trial court could reasonably conclude from defendant's New York robbery and attempted robbery convictions that he did not have a bona fide claim of ownership or title to the property he took or attempted to take.
Finally, defendant argues that double jeopardy principles bar retrial on the prior conviction allegations. This argument fails because, as he acknowledges, "both the United States Supreme Court [in Monge II, supra, 524 U.S. at page 734] and the California Supreme Court [in People v. Monge (1997) 16 Cal.4th 826 at page 829 (Monge I)] have ruled that it is permissible to retry alleged prior felony convictions after reversal on appeal for insufficiency of the evidence at trial." Nevertheless, defendant asserts that "those decisions must be revisited in the wake of subsequent rulings made by the United States Supreme Court" in United States v. Booker (2005) 543 U.S. 220, 244 [160 L.Ed.2d 621], Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403], and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435]. However, as the California Supreme Court explained in People v. Trujillo, supra, 40 Cal.4th 165, a case decided after the cases relied upon by defendant: "We are not at liberty to, nor are we inclined to, disregard the holding of the United States Supreme Court in Monge II. Nor are we persuaded that we should reconsider Monge I's conclusion that the California Constitution's double jeopardy clause does not preclude retrial on a prior conviction allegation in a non-capital sentencing context." (Id. at p. 174.) We cannot hold that double jeopardy principles bar retrial of the prior conviction allegations. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We reverse the findings that defendant's prior New York convictions constituted strikes within the meaning of the three strikes law and remand the matter to the trial court for a retrial on those allegations.
Motions to Replace Appointed Counsel
Defendant asserts that the trial court erred and violated his constitutional right to counsel by denying five Marsden motions in which he sought to remove and replace his ...