P. v. Bell

Filed 3/17/06 P. v. Bell CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Judith L. Champagne, Judge. Affirmed.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Duvohn Bell was convicted, following a jury trial, of one count of attempted second degree commercial burglary in violation of Penal Code sections 459 and 664. The trial court found true the allegations that appellant had suffered four prior convictions within the meaning of section 667.5 The court sentenced appellant to the upper term of 18 months for his current conviction, plus 4 one-year enhancement terms pursuant to section 667.5, for a total term of 5 years, 6 months in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion for substitution of appointed counsel, and in admitting evidence of his prior burglaries and a statement he made during a prior burglary. We affirm the judgment of conviction.

Facts

On November 7, 2004, at about 5:00 a.m., Juan Gonzalez heard someone banging on a metal plate covering a hole in the roof of his business. Gonzalez lived behind the business. The hole had been made by a burglar a year earlier. Gonzalez had initially covered the hole with plywood, but a burglar removed the plywood. Gonzalez then covered the hole with a metal plate.

Gonzalez called the police. The banging stopped when the police arrived thirty minutes later.

Officers Kellogg and Sparkman were the Los Angeles Police Department officers who responded to the call. Officer Kellogg heard a rustling sound, looked up at the roof of the building and saw appellant about 15 feet away. Appellant did not comply with Officer Kellogg's command to get down. When back-up police units arrived, appellant did come down from the roof.

Gonzalez inspected the roof and discovered that the piece of metal which he had installed had been broken off. Officer Kellogg noticed that an air vent had been removed. The officer also saw a duffel bag lying about 15 feet away. The bag had two screwdrivers inside. Appellant had a screwdriver and a flashlight in his pocket.

At trial, evidence of two prior burglaries by appellant was presented. In 1993 appellant was arrested for burglary of a commercial building. At about 2:30 a.m., appellant entered the business through the ceiling. The area where he broke through the ceiling had been replastered after a previous break-in. Gloria Wayne and her son were inside the building at the time. Wayne testified at the current trial that she ordered appellant down from the hole in the ceiling and held him at gunpoint until police arrived. When the police arrived, they arrested appellant and discovered Wayne's purse hidden in appellant's jacket. According to Wayne, appellant said: "[B]itch, this is what I do. What the fuck [do] you think I do for a living. . . ." When Wayne later looked in the crawl space above the ceiling, she found a duffle bag.

In 1997, Los Angeles Police Department Officer Juan Gonzalez heard a burglar alarm coming from a cellular telephone business at 4:30 a.m. He saw a light shine inside that building. Officer Gonzalez and other officers set up a perimeter around the building. Officer Gonzalez eventually saw appellant drop a duffle bag from the roof to the ground and climb down. The bag contained cellular telephones, batteries and chargers. Officer Gonzalez checked the roof and found that an air duct had been pried off.

Appellant presented the testimony of Officer Keenan who responded to Wayne's call in the 1993 burglary. Officer Keenan testified that Wayne did not tell him that she held appellant at gunpoint. He also testified that when Wayne called the police, they told her to leave the building. After the police arrived, she told them that there was a hole in the ceiling that had not been there when she left at the direction of the police.

On cross-examination, Officer Keenan testified that appellant said to Wayne: "What you so amazed for, bitch. Of course I took your shit. What the fuck do you think I was doing?"

Discussion

1. Motion for substitute counsel

Appellant contends that the trial court erred in denying his motion for appointment of substitute counsel, made after appellant had been sentenced in this matter. Appellant contends that the trial court denied his motion solely because it was untimely, and without giving him a hearing. We see no abuse of discretion.

A criminal defendant is entitled to assistance of counsel at all critical stages of the proceeding. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Pen. Code § § 686, 859 & 987; Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.)

The court must appoint counsel to represent an indigent defendant. (Gideon v. Wainwright (1963) 372 U.S. 335, 345.) A defendant's right to a court-appointed lawyer "'does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. . . .' [Citation.]" (People v. Marsden (1970) 2 Cal.3d 118, 123.)

"A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant's right to effective legal representation has been compromised by a deteriorating attorney-client relationship." (People v. Roldan (2005) 35 Cal.4th 646, 681.) A trial court errs in denying a Marsden motion solely on the basis of untimeliness. (Ibid.)

"'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].' [Citations.]" (People v. Fiero (1991) 1 Cal.4th 173, 204.)

The decision whether to grant a requested substitution is within the discretion of the trial court. A trial court abuses its discretion in denying such a motion only if the denial would substantially impair the defendant's right to effective assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)

Here, appellant's motion was made at literally the very last minute, after the court had pronounced sentence and informed appellant of his right to appeal. After listening to appellant's complaints about his trial counsel, the court stated: "Mr. Bell, this is not a timely point to make a Marsden motion. We are finished and you are now sentence[d] to the Department of Corrections."

While appellant gave specific examples of his dissatisfaction with counsel, he offered no explanation of the purpose of a new attorney at such a late stage in the proceeding. On appeal, appellant contends that if he had known that he could file a motion for a new trial, he would have requested that new counsel be appointed for that purpose. Appellant's counsel did file a motion for new trial, so we cannot presume that appellant was ignorant of this type of motion. Appellant's request came immediately after the trial court informed him of his appellate rights, including the appointment of a lawyer to represent him on appeal. Given this timing, it seems much more likely that appellant was concerned with obtaining a new appointed counsel for his appeal. The trial court, of course, has nothing to do with such an appointment.

Even assuming for the sake of argument that appellant's request should have been construed as a request for substitute counsel for purposes of making a new trial motion, we would find no abuse of discretion in the trial court's denial of that motion. Appellant's request is very similar to the request for counsel which was properly denied in People v. Whitt (1990) 51 Cal.3d 620. In that case, the defendant insisted that his Marsden motion, made on a day set to hear all posttrial motions, should have been granted so that the incompetence of his trial counsel could have been raised as grounds for a new trial. (Id. at pp. 657-658.) Our Supreme Court found that "[t]he only reasons given in support of the Marsden motion related to counsel's performance before or during the February 1985 special circumstance retrial. Because defendant never indicated dissatisfaction with counsel in the ensuing three- to four-month period, the court had reasonable grounds to question the sincerity of his current criticisms. In any event, the motion could properly be denied as untimely. The court was not required to stop the nearly completed proceeding in its tracks in order to allow another attorney to completely familiarize himself with the case. Denial of the Marsden motion was within the court's discretion. [Citation.]" (Id. at pp. 658-659.)

The situation in Whitt is remarkably similar to the situation in this case. Appellant's complaints of inadequate representation centered around his counsel's preparation for and conduct of the trial, which had been completed more than three weeks earlier. Appellant stated: "[C]ounsel has lack of interest for reasons unknown. . . . He has denied rights for me picking my jury, putting in a Wheeler motion, and call[ing] witnesses during trial. [¶] Counsel has denied every motion I asked him to file before the trial has started. Counsel told me I was going to lose. . . . [¶] Counsel never investigated the crime scene nor took photos to show proof that the accusations were fabricated during trial." Appellant had not expressed any dissatisfaction with counsel before trial began, during the five days the trial took place or in the three-week interval between trial and sentencing.

Further, appellant's complaints do not remotely suggest that appellant's counsel failed to adequately represent him. They show, at most, a disagreement over tactical decisions during trial.

Given the timing of appellant's motion, his failure to explain the purpose of a substitute counsel, and the nature of his complaints, we see no abuse of discretion in the trial court's denial of motion for substitute counsel.

2. Prior burglaries

The trial court admitted evidence of a 1993 and a 1997 burglary committed by appellant to prove intent in the current case. In those burglaries, appellant also entered the building through the roof. Appellant contends that the trial court abused its discretion in admitting this evidence because it was more prejudicial than probative, and was cumulative to other evidence of appellant's intent. He further contends that this error violated his right to due process under the federal constitution.[1] We see no abuse of discretion.

Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)

To be admissible, evidence of uncharged misconduct must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Thus, the probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code § 352.) On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Appellant's prior burglaries were quite similar to the burglary which he attempted in this case. The trial court did not err in finding that evidence of those burglaries was relevant to show appellant's intent.

Appellant relies on People v. Balcom (1994) 7 Cal.4th 414 to show error in the section 352 analysis performed by the court. In Balcom, the victim testified that the defendant put a gun to her head and forced her to have sexual intercourse. The defendant claimed that he did not use a gun and the intercourse was consensual. The Court found that the victim's testimony, if believed, was "compelling evidence of defendant's intent" and that evidence of similar uncharged crimes to show intent was cumulative and the limited probative value of the uncharged crimes was outweighed by its substantial prejudicial effect. (Id. at p. 423.) Appellant contends that his case is like that of the defendant in Balcom. We do not agree.

Here, appellant was charged with attempted burglary. Appellant had not yet entered the building when police arrived. Thus, there was some ambiguity about appellant's intent. It was clear that appellant was trying to enter the building, and it was reasonable to infer that he intended to commit burglary. We do not find the evidence of appellant's intent in entering to be "compelling," however. A jury could believe that Officer Kellogg saw appellant on the roof without necessarily finding that appellant intended to burglarize the building. Thus, we see no abuse of discretion in the trial court's finding that evidence of appellant's prior burglaries was more probative than prejudicial.

3. Prior statement

Appellant contends that the trial court erred in admitting evidence that Wayne told Officer Keenan that appellant admitted taking her purse. He further contends that this error violated his federal constitutional right to a fair trial.[2] The trial court admitted the testimony as a prior consistent statement by Wayne. We see no error in the admission of the statement.

We do agree with appellant that the statement was not a prior consistent statement by Wayne and should not have been admitted as such. Wayne did testify that appellant made the incriminating statement. Officer Keenan, however, did not testify that Wayne told him that appellant made the incriminating statement. Officer Keenan testified that he heard appellant make the incriminating statement. Referring to the statement, the officer testified: "When I say record I wrote it down based upon my recollection of what he said that evening. It is included in the police report." (Emphasis added.)

This statement was nevertheless admissible under Evidence Code section 1220 as a statement by a party. (People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5.)

We see no abuse of discretion in the trial court's ruling that the testimony was more probative than prejudicial and thus was admissible under section 352. Appellant's statement was relevant both to prove the truth of the matter asserted, that appellant did take the purse, and to corroborate Wayne's testimony that appellant admitted taking the purse. We see nothing prejudicial in the statement within the meaning of section 352. (People v. Bolin (1998) 18 Cal.4th 297, 320 [prejudice refers to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. It is not synonymous with "damaging."].)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P.J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] We agree with respondent that appellant has waived his claim of federal constitutional error by failing to raise it in the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20.) Assuming for the sake of argument that this claim were not waived, we would reject it since we find no error in the admission of the evidence.

[2] We agree with respondent that appellant has waived his claim of federal constitutional error by failing to raise it in the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20.) Assuming for the sake of argument that this claim were not waived, we would reject it since we find no error in the admission of the evidence.