Filed 4/6/22 P. v. Brooks CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

A jury convicted Charles Anthony Brooks of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) after he stole some power cords from a frightened sandwich shop patron. In this appeal, he argues that the trial court erred in failing to provide him with a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to determine whether he should be appointed substitute counsel based on his concerns about his appointed attorney’s performance. Further, he contends that the evidence was insufficient to support his robbery conviction and the court erred in declining to instruct the jury on attempted robbery. We conclude that his arguments lack merit, and we therefore affirm.

Background

According to the victim’s trial testimony, on the day of the incident, she was seated at a table in a sandwich shop in Redwood City, working on her laptop. Brooks sat down at a table across from her and stared at her for what seemed like a long time; he was shaking, leading the victim to believe he was on drugs. The victim was terrified; she was worried he might have a weapon and she could be killed. Brooks subsequently stood up and approached the victim, standing about four feet away while continuing to shake and stare at her. He told her not to bother calling the cops and said, “I’m getting ready to take this [shit].” The victim screamed, grabbed her laptop, and moved away from Brooks. Brooks then grabbed the power cord for the victim’s laptop and another power cord belonging to the victim out of the wall and ran out of the shop. When the police responded to the scene, the victim was still shaking and scared.

After the jury found Brooks guilty, the court sentenced him to two years in prison.

Discussion

A.

Brooks contends that the trial court erred in failing to hold a Marsden hearing after he informed the court that he believed his attorney was working against him. We disagree.

Under Marsden, supra, 2 Cal.3d at pp. 122-124, when a criminal defendant asserts inadequate representation and seeks substitute counsel, the court must provide the defendant with an opportunity to explain his grounds for believing his counsel’s performance is ineffective. (See People v. Johnson (2018) 6 Cal.5th 541, 572 (Johnson).) However, the court’s obligation to conduct such an inquiry is triggered only when the defendant clearly indicates, in some fashion, that he wants a substitute attorney, although no formal motion is necessary. (People v. Sanchez (2011) 53 Cal.4th 80, 91 (Sanchez); see also Johnson, at p. 573.)

There is no dispute that prior to the trial, Brooks informed the court he had concerns about his counsel. Brooks told the court that he thought his attorney was not working in his best interest, suggested his attorney was “working hand in hand” with the prosecutor and the judge, and stated that his constitutional rights were being violated. His complaints may have been aimed more at the legal system generally. In any case, Brooks never suggested that he wanted a substitute attorney. When the court asked him to elaborate on his concerns about his attorney, Brooks refused to do so, stating, “we ain’t going to get nowhere going back and forth, Your Honor. I don’t want to respond to it no more. I just want to go to trial and get it over with.” He concluded, “[t]hat’s all I want to say. I just want to move forward.” Thus, rather than asking the court to appoint substitute counsel, Brooks stated that he wished to proceed with trial.

Simply raising concerns about an attorney’s performance – without some indication that substitute counsel is desired – is insufficient to trigger the obligation to hold a Marsden hearing. (See Sanchez, supra, 53 Cal.4th at pp. 90 & fn. 3, 91.) For example, in Johnson, when the defendant stated that his attorney did not represent his interests, our Supreme Court held that the trial court was not required to hold a Marsden hearing because the defendant did not request that the court appoint substitute counsel. (Johnson, supra, 6 Cal.5th at pp. 573-574.) Similarly, in People v. Dickey (2005) 35 Cal.4th 884, our Supreme Court concluded that no Marsden hearing was required where the defendant stated that he was not satisfied with the competency of his attorney, but he never indicated that he wanted substitute counsel appointed. (Id. at pp. 919-921; see also People v. Valdez (2004) 32 Cal.4th 73, 96-97.)

In sum, because Brooks did not indicate that he wanted substitute counsel, the court had no obligation to hold a Marsden hearing here.

B.

Brooks next argues that his robbery conviction must be reversed because there was insufficient evidence that the power cords were taken by means of fear. We conclude that the robbery conviction is supported by substantial evidence. (See People v. Lara (2017) 9 Cal.App.5th 296, 320.)

To establish a robbery, the prosecution must show that the defendant took personal property from another person, against her will, by means of force or fear. (Pen. Code, § 211.) To satisfy the requirement that a robbery was committed using fear, the prosecution must point to evidence that the victim was afraid and the victim’s fear allowed the defendant to take or carry away the property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165 & fn. 8; People v. Montalvo (2019) 36 Cal.App.5th 597, 612.) Here, Brooks conceded in the trial court that the victim was afraid, but argues on appeal that there is no evidence that he used fear to accomplish the robbery.

The victim testified that Brooks sat 10 feet away from her in the sandwich shop and stared at her for an extended period. He then stood up and approached her, telling her not to bother to call the police and that he was getting ready to take her “shit.” She started screaming, grabbed her laptop, and backed away from him, enabling him to grab the power cords. She stayed there, frozen and scared. The victim’s testimony thus provided substantial evidence that Brooks used the victim’s fear – which was apparent from her screaming – to achieve the crime: once the victim backed away and froze, he was able to take the power cords and exit the shop. (Cf. People v. Collins (2021) 65 Cal.App.5th 333, 344-345.)

Brooks contends that there was no evidence that he intended to use fear to take the power cords. However, our Supreme Court has held that to constitute a robbery, there is no requirement that the defendant intended to use force or fear. (People v. Anderson (2011) 51 Cal.4th 989, 995-996.) Instead, the intent necessary for a robbery conviction is a specific intent to permanently deprive the victim of the property. (Id. at p. 994.) So long as the defendant had the intent to steal, the force or fear element can be met even if the use of force or fear was accidental. (Id. at p. 996.) Further, if a defendant applies force or fear intending to steal one item, and then subsequently steals another item during the same transaction, he is nonetheless guilty of robbery. (See People v. Wear (2020) 44 Cal.App.5th 1007, 1023.) Brooks does not dispute that, at a minimum, he intended to steal the laptop at the outset. Thus, the fear element is satisfied because regardless of whether he intended to use fear to take the power cords, he took advantage of the victim’s fear when he grabbed them.

C.

Finally, Brooks asserts that the trial court violated his rights by failing to instruct the jury on the lesser included offense of attempted robbery. Reviewing this question independently (People v. Souza (2012) 54 Cal.4th 90, 113 (Souza)), we find no error.

The trial court is required to instruct the jury on a lesser included offense arising out of a single act or course of conduct when there is substantial evidence that the defendant is guilty only of the lesser offense but not the greater offense. (See People v. Bordelon (2008) 162 Cal.App.4th 1311, 1320; see also Souza, supra, 54 Cal.4th at p. 116.) Brooks contends that the trial court should have instructed the jury on attempted robbery as a lesser included offense of robbery, because the evidence showed that he attempted to steal the laptop but failed. He argues that the evidence of the greater offense – robbery of the power cords – was weak because there was no evidence that he used fear to take the power cords.

As discussed in the preceding section, we disagree with Brooks’s characterization of the evidence that he used fear to take the power cords. Brooks conceded that the victim was afraid, and there was no dispute that just after she screamed and backed away, he successfully took the power cords and carried them out of the shop. The evidence that he used fear to take the power cords was quite strong, and the evidence that he did not use fear was insubstantial.

Further, a taking without the element of force or fear is a theft, so theft is a lesser included offense of robbery. (See People v. Ledesma (2006) 39 Cal.4th 641, 715.) Even if there had been substantial evidence that Brooks did not use fear to take the power cords, the trial court properly instructed the jury on theft. Accordingly, defense counsel argued to the jury that because the fear element was missing, the jury could find theft, but not robbery.

We also conclude that had the trial court instructed the jury on attempted robbery, it is not reasonably probable that Brooks would have obtained a more favorable outcome. (See People v. Watson (1956) 46 Cal.2d 818, 836-837.) If the jury believed he did not use fear to obtain the power cords, it would have found him not guilty of robbery and would have convicted him of the lesser included offense of theft. The jury’s finding that he was guilty of robbery indicates that it rejected the defense argument that the prosecution failed to prove the element of fear.[1]

Disposition

The judgment is affirmed.

_______________________

BURNS, J.

We concur:

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JACKSON, P.J.

____________________________

SIMONS, J.

A162104

[1] Neither are we persuaded by Brooks’s argument that the jury was confused about whether it was being asked for a robbery conviction based on the power cords or the laptop. The evidence was unambiguous that the victim retained her laptop and that Brooks only stole the power cords, and defense counsel reiterated this point more than once in his summation.