California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Bernardino County No. FWV1201414, Gregory S. Tavill, Judge.
[Copyrighted Material Omitted]
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
BENKE, Acting P. J.
A jury convicted defendant and appellant Darius Trevor Knight of robbery (Pen. Code, § 211) and found not true the special allegation he inflicted great bodily injury on the victim. Because the robbery was his third strike within the meaning of Penal Code section 667, subdivisions (b)-(i), he was sentenced to a term of 25 years to life.
On appeal, defendant contends the trial court erred in a posttrial, presentence Marsden hearing when the trial court advised defendant he would waive his right to remain silent if he discussed the circumstances of the robbery. Defendant contends the trial court's warning effectively prevented him from fully articulating the reasons his counsel had been ineffective.
As we explain, we find that the judge's warning was erroneous and that on this record we cannot conclude beyond a reasonable doubt that the error was harmless. We reverse and remand to the trial court for the limited purpose of conducting a Marsden hearing free of error.
Around 2:00 a.m., on June 13, 2012, a fast-food restaurant shift manager, Edgar Velasquez, and a coworker, Maria Escobar, were closing the restaurant. While the two employees were cleaning the restaurant, Velasquez opened the door to a restroom to begin cleaning it. Velasquez noticed the lights were off and saw a figure standing three to four feet away from him, already in the restroom. This figure raised his arm toward Velasquez in an attacking motion and shoved Velasquez to the floor, where Velasquez hit his head and blacked out. Velasquez regained consciousness when he heard the sound of his own screaming; the unknown figure told Velasquez to take him to the store's safe.
Velasquez led his assailant to the store's safe, opened it, and the assailant took between $100 and $200 in $1 and $5 bills. After taking the money, the assailant left the store. Immediately, however, the assailant rushed back into the store and exited through the drive-through window.
When Escobar heard Velasquez's screaming, she left the store and flagged down a police officer. While the officer was speaking to Escobar, Velasquez hobbled out of the store, described what had just happened and gave the officer a description of his attacker. The officer immediately radioed the information Velasquez provided to other officers in the area.
Another law enforcement officer spotted defendant and detained him. Velasquez was transported to a nearby apartment complex where defendant was detained and Velasquez identified him as his attacker. Defendant was arrested and charged with robbery; the complaint alleged that defendant inflicted great bodily injury and further alleged that defendant suffered two prior robbery convictions in 1998 and 1999 and that they were serious or violent felonies within the meaning of section 667. subdivisions (b) through (i).
On July 3, 2013, a jury found defendant guilty of robbery.
Following the jury's verdict, defendant made a Marsden motion, which was heard on July 8, 2013. During the hearing, defendant expressed dissatisfaction that his attorney had failed to take any steps to preserve evidence and that his attorney let the prosecutor lead witnesses during ...