P. v. Heath

Filed 10/11/07 P. v. Heath CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

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

Joan Comparet-Cassani, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Appellant Stanley Lebron Heath (Heath) was convicted on two counts of assault on a peace officer with a semiautomatic firearm (Pen. Code, 245, subd. (d)(2));[1]one count of carrying a concealed firearm ( 12025, subd. (a)(2)); three counts of second degree robbery ( 211); one count of making a criminal threat ( 211); and one count of false imprisonment ( 236). He was sentenced to 27 years in state prison. On appeal, Heath advances the following contentions: (1) the trial court erred when it denied his motion for the appointment of substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (2) there was insufficient evidence to convict him for assault on a police officer with a semiautomatic weapon; and (3) he was prejudiced when the trial court failed to instruct the jury on a lesser included offense of assault on a nonpeace officer with a semiautomatic weapon.

We affirm.

FACTS

The Marsden motion

On the first day scheduled for trial, Heaths attorney requested a continuance to interview a new witness who had just been discovered by Heaths family. The trial court did not believe that a brand new witness had suddenly appeared out of the blue on the day set for trial. The motion for a continuance was denied. On the heels of that, Heath made a Marsden motion.[2]

After an inquiry, the trial court denied the Marsden motion and stated: [Heath] has not made [a] good showing under the law that [his attorney] is failing to operate at a level . . . required of competent counsel. [] Mr. Heath, the fact that your parents have come up with a brand new witness the day of trial, the fact that the day of trial that youre now demanding a new attorney, to me again all goes to the fact that youre trying to delay the proceedings and nothing else.

Prosecution evidence

While Emmanual Guzman (Guzman) and Migual Baragan (Baragan) were working at the Game Stop in Wilmington, Heath entered the store. He was wearing a black ski mask and a black, hooded sweater. Heath said, This is a robbery, and ordered Guzman and Baragan to go behind the counter and hand over the money in the register. Guzman did as told. Next, Heath ordered Guzman to open the safe and Baragan to get a specific X Box controller from behind the counter. Baragan handed over the controller. As Guzman punched in the code for the safe, Heath noticed that Brittany Donovan (Donovan), a customer, was also in the store, hiding. Heath said he was going kill her for hiding. When Donovan started crying, Heath started screaming at her to shut up. Then he ordered her to go behind the counter and get down, which she did. Heath threatened to kill Guzman, Baragan and Donovan if they called the police. In particular, Heath said he would go to Baragans house and kill his family. Guzman never saw a gun; Heath had his hand inside his sweater pocket the whole time.

Heath told Guzman, Baragan and Donovan to produce their IDs. When Heath began reciting information from the IDs and said Guzmans name, Guzman recognized who Heath was from his voice. They had gone to elementary school together, and Heath had been in the store before. The safe was on a time delay. When it finally popped open, Heath took about $650 to $700 and left. Not only did he take the money, he also took the IDs and the X Box controller.

About a week later, Heath entered a Game Stop in Harbor City. Valerie Grace Hilgenfeldt (Hilgenfeldt) was working. He asked some questions and then left. He came back a few minutes later, when there were no customers. He showed Hilgenfeldt a gun, said he needed the money from the register, and told her to start the safe. He then told her that if she called the police that he would kill her, then kill himself. When she took money out of the register, she put it in a plastic bag, as directed. She punched the combination into the time delay safe. When a customer walked into the store, Hilgenfeldt acted normal. Heath pretended to be a Game Stop employee. After the customer left, they went to the back and she showed Heath the security system. He took the CD out of the disc drive connected to the security cameras and broke the CD. They went back to the front, and by then the safe had opened. He emptied probably $400 from the safe and left, taking the broken CD with him. Even though he said he would kill her if she called the police, she called 911.

Hilgenfeldt identified Heath in a photographic six pack.

Detective John David Siko of the Fullerton Police Department supervised a surveillance unit of Los Angeles Police Department and Fullerton Police Department officers assigned to apprehend Heath. While staking out Heaths apartment at 7:15 in the evening, Detective Siko observed Heath exit his apartment and walk toward his parked vehicle. Once he got into his vehicle, Detective Siko instructed the unit to move in.

Heath opened his vehicle door and swung his legs out. Detective Siko pulled his vehicle next to Heaths door, trying to block his escape path. At the time, Detective Siko was wearing a bullet proof vest with a badge on it. Heath jumped up and over the front of Detective Sikos vehicle and fled in a westerly direction. Detective Siko exited his vehicle and said, Police. Stop. Heath did not comply, so Detective Siko pursued.

Several other officers also said, Police. Fullerton Police Department Detective Mario Magliano was one of those officers. He was wearing a jacket which bore the letters R-A-I-D, and he had a badge hanging off his neck in front of his jacket. After Heath ran up a driveway and jumped over a wrought iron fence, Detective Siko saw a muzzle flash from Heaths direction. Detective Magliano saw the muzzle flash from waist high and heard a gunshot. Detective Eric Halverson of the Fullerton Police Department also heard the gunshot. Detective Halverson recovered a roll of money in a rubberband, a handgun, and an expended round from the driveway.

Officer Dominick Fuentes of the Los Angeles Police Department apprehended Heath and took him into custody.

When questioned, Heath said he went to the Game Stop in Wilmington to get money because he owed someone money. He did not have a gun, but he put his finger in his pocket and simulated a gun. According to Heath, he obtained about $700 and a game box, and then left the store. For the robbery of the Game Stop in Harbor City, Heath obtained a .25 caliber semi-automatic weapon. He said it was not loaded. He obtained about $3,000 and some checks.

Regarding the shooting, Heath said he thought the officers in pursuit were two Mexican gang members who had tried to rob him a couple days before. He said he accidentally put his finger on the trigger as he was climbing over the fence, and that he fired one round. When Detective Halverson walked into the interview, Heath said something similar to I didnt mean to shoot at you guys. Heath then said he fired because he was scared, and that he thought he was being chased by two Mexicans. He indicated that he turned backwards toward his left in order to fire. But he also gave a second explanation, which was that the gun only fired because he dropped it on the ground. He said when the weapon fired, he knew he had shot at police officers.

The conviction, sentence and this appeal

Heath was found guilty and sentenced to 27 years in state prison.

This timely appeal followed.

DISCUSSION

1. The claim of Marsden error.

a. The law.

A defendant is entitled to the assistance of court appointed counsel if he cannot obtain private counsel. (Marsden, supra, 2 Cal.3d at p. 123.) Pursuant to Marsden, a defendant may request that the trial court to discharge a court appointed defense attorney if the defendant believes he or she is receiving inadequate representation. (People v. Smith (1993) 6 Cal.4th 684, 690 (Smith).) [T]he trial court must permit the defendant to explain the basis of his contentions and to relate specific instances of counsels inadequacy. (People v. Cole (2004) 33 Cal.4th 1158, 1190.) The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial courts discretion, which will not be overturned on appeal absent a clear abuse of that discretion. (Smith, supra, 6 Cal.4th at p. 696.) A defendant is entitled to relief if the record clearly shows that the [court] 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]. (People v. Crandell (1988) 46 Cal.3d 833, 854.)

What type of factual inquiry is dictated when a defendant makes a Marsden motion? According to the Marsden court, when inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy. [Citation.] Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendants offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention is lacking in all the attributes of a judicial determination. [Citation.] (Marsden, supra, 2 Cal.3d at pp. 123124.)

Marsden error is reversible unless the record shows beyond a reasonable doubt that the error did not prejudice defendant. [Citations.] (People v. Eastman (2007) 146 Cal.App.4th 688, 697.)

b. The trial court did not commit error at the Marsden hearing.

Heath made a Marsden motion before opening argument. The trial court transcript of that proceeding was filed under seal with the Court of Appeal. On appeal, Heath contends: The trial court only considered its own view of whether counsel was objectively competent, but failed to consider whether the conflict between counsel and [Heath] would impair the adequacy of representation. The trial court only assessed the question from the perspective of its own knowledge of counsel, rather than assessing the relationship between counsel and [Heath], and whether a breakdown in that relationship had occurred. As a result, the [trial court] failed to exercise its full, and required, discretion under the Marsden standard.

We reviewed the trial court transcript of the Marsden hearing. Without revealing the specifics, we found that the trial court gave Heath an opportunity to state his concerns, and to give examples. The trial court rejected some of Heaths statements as lacking credibility. As for other statements, it conducted an inquiry with Heaths counsel, who explained his thought processes. The trial court explained that certain statements Heaths counsel made to Heath were either permissible or required by the ethical standards of his profession. On this record, the trial court did not abuse its discretion when it denied Heaths motion.

It is apropos to quote the law that to the extent there was a credibility question between defendant and counsel at the hearing, the court was entitled to accept counsels explanation. [Citations.] [Citation.] If a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law. [Citations.] (People v. Jones (2003) 29 Cal.4th 1229, 12451246.) Here, the trial court permissibly resolved factual disputes between Heath and his counsel in favor of his counsel.

c. Subsequent events did not trigger Marsden.

In his opening brief, Heath adverts to the fact that he tried to talk to the trial court and jury while his counsel was giving closing argument. The trial court interrupted closing argument and instructed counsel to consult with his client. Afterwards, Heaths counsel said he could not control his client, and that maybe he would just rest. In addition, he said that Heath intended to take the stand after closing argument. The trial court said that was impossible. When asked why Heath was trying to talk to the trial court and the jury, Heath said he simply wanted to know what his counsel was going to argue. His counsel responded, saying he had explained it to Heath many times. After a colloquy with the trial court, Heath said, Okay. [Judge], Ill let him do his job.

It is unclear why Heath recited these facts. The only relevance would be if Heath had made a second Marsden motion. He did not.

A trial court has no obligation to permit a defendant to state the reasons for why he might be dissatisfied with his attorney unless the defendant in some manner moves to discharge his current counsel. [Citation.] (People v. Freeman (1994) 8 Cal.4th 450, 480.) Our Supreme Court held that the law does not necessarily require a proper Marsden motion, but there must be at least some indication that the defendant wants a substitute attorney. (People v. Freeman, supra, at p. 480.) Here, there was no indication that Heath wanted a substitute attorney during closing argument.

2. The claim that the evidence was insufficient to support the conviction for assault on a police officer with a semiautomatic weapon.

Heath contends: [N]o reasonable trier of fact could have found, beyond a reasonable doubt, that substantial evidence supported the elements of assault with a firearm on a police officer. The evidence in this case did not sufficiently prove either that [Heath] knew that the men chasing him were police officers or that [Heath] intentionally fired the gun at all.

We disagree.

a. The law.

In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [ Citations.] We apply an identical standard under the California Constitution. [Citation.] In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1175 (Young).)

Sufficient evidence to support a conviction means evidence which is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In contrast, mere speculation cannot support a conviction. [Citations.] (People v. Marshall (1997) 15 Cal.4th 1, 35.) In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (Young, supra, 34 Cal.4th at p. 1181.)

b. There is sufficient evidence that Heath knew, or reasonably should have known, that he was being chased by police.

Heath was properly convicted under section 245, subdivision (d)(2).

Section 245, subdivision (d)(2) provides: Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years.

Just before Heath was chased, he left his apartment and got into his vehicle. Police units move in to apprehend Heath on Detective Sikos signal. Detective Siko drove up to Heaths drivers side door in a Dodge Intrepid. At the time, Detective Siko was wearing a bulletproof vest with a badge hanging on the outside. Simultaneously, police officersincluding those from Los Angeles in a black and white vehicledrove up to Heath from different directions. Heath and Detective Siko made eye contact. After Heath went over the hood of Detective Sikos vehicle, Detective Siko said, Police. Stop. Other officers, including Detective Magliano, called, Police.

Next, the evidence showed that Detective Siko, Detective Magliano and Detective Halverson pursued Heath on foot. When the chase began, Detective Siko was only about 20 feet away. By the time Heath got to the wrought iron fence and jumped over it, Detective Siko was about 15 feet away. Also, after Heath was taken into custody, Heath told Detective Halverson that when the weapon was fired, he realized he had fired at police.

This evidence, beyond a reasonable doubt, demonstrates that Heath knew he was being pursued by the police, or he reasonably should have known. Also, it shows that he knew he was not being pursued by two Mexican gang members. Detective Siko was wearing a badge, Detective Magliano was wearing a badge, other police vehicles (including a black and white vehicle) converged on Heath, and Detective Siko and other officers identified themselves as police. During the chase before the gunshot, Detective Siko was only 15 to 20 feet behind Heath. The only reasonable conclusion is that Heath knew or should have known he was being pursued by police. This is supported by his admission that he realized he shot at police.

c. There is sufficient evidence that Heath intentionally fired the gun.

Detective Siko stated: [W]hen I saw the muzzle flash, I could actually see the barrel, what would be a dark spot in the middle of this muzzle flashing. And I knew it [was coming] my direction. According to Detective Magliano, the muzzle flash came from waist high on Heath, on his left side. When he was interviewed, Heath give different accounts of why the gun fired. Though he said the gun fired accidentally, he also said that he turned backwards toward his left to fire the gun, and that the only reason he fired the gun was that he was scared and thought he was being chased by two Mexicans. Also, when Detective Halverson entered the interview room, Heath apologized for shooting.

Beyond a reasonable doubt, Heath intentionally fired the gun. Because Detective Siko saw a dark spot in the middle of the muzzle flash, the evidence establishes that the barrel was pointed at Detective Siko. Further, Heath admitted that he fired the gun intentionally by turning backwards toward his left and firing. Though Heath contradicted himself by saying that the gun went off accidentally, either because it fell or he unintentionally pulled the trigger, that contradicting story was implausible. Heath would not have said he turned to fire if he had not actually fired. And, if Heath dropped the gun and it fired, or if he accidentally pulled the trigger, the barrel would not have been pointing directly at Detective Siko and Detective Magliano. Moreover, we note that Detective Magliano testified that the muzzle flash came from waist high, which rebuts Heaths claim that he dropped the weapon.

3. The claim that Heath was prejudiced because the trial court did not instruct on a lesser included offense.

In Heaths view, the trial court should have instructed the jury on a lesser included offense of assault with a semiautomatic weapon upon a nonpeace officer in violation of section 245, subdivision (b).

We turn to this issue.

a. The law.

A trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. (People v. Birks (1998) 19 Cal.4th 108, 118.) Substantial evidence in this context is evidence from which a jury composed of reasonable people could find that the lesser offense was committed, but that the greater offense was not. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Instructional error in a noncapital case requires reversal if it was reasonably probable the defendant would have obtained a more favorable outcome if the error had not occurred. (Id. at p. 178.)

b. If there was error, it was not prejudicial.

The jury was instructed on assault with a semiautomatic weapon on a peace officer, and on grossly negligent discharge of a firearm. The latter instruction provided that to prove the crime, the prosecution had to establish that the defendant willfully and unlawfully discharged a firearm in a grossly negligent manner that could result in injury or death to a person.

In closing argument, Heaths counsel stated: The only issue in this case is what happened in those five seconds on December the 9th, 2005[,] when the detectives, the officer from Fullerton, arrived. . . .  We have a pitch black street with a pitch black driveway. The car accelerates, hits the brakes, lights up my client, and the chase is on. Whether he believed [they] were ghosts, whether he believed they were police men, whether he believed they were gang members is irrelevant. In conclusion, Heaths counsel averred: I think the evidence is clear that a shot was fired. Whether it was reckless, whether it was stupid or insane, thats probable. [] Was there an intent to fire at these police officers? [] I believe there was not.

Given the testimony, instructions and closing argument, it is not reasonably probable that an instruction on assault with a semiautomatic weapon on a nonpeace officer would have resulted in a different outcome.

Heaths defense was that the shooting was unintentional, not that he was unaware that he was shooting at police officers engaged in the performance of their duties, or that he could not have reasonably known. The jury verdict establishes that it rejected Heaths defense and believed that the gunshot was intentional. The question is whether, if instructed on the lesser included offense, the jury would have believed that though Heath intentionally fired the gun, he did not know, or should not have reasonably known, he was firing at peace officers engaged in the performance of their duties. We think not. The evidence established that numerous police officers converged on Heath in his vehicle. When he ran, numerous police officers identified themselves by saying, Police. Further, Detective Magliano and others were wearing jackets with the letters R-A-I-D, and wearing badges. When Heath was interviewed, his story kept changing. At one point he professed that he thought he was being chased by two Mexican gang members. But that statement was implausible. In the absence of evidence giving Heath a basis for thinking he was being chased by two Mexican gang members, that story would not have gained traction with the jury.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

CHAVEZ

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The transcript of the Marsden hearing was filed under seal.