P. v. Heupel

Filed 8/14/06 P. v. Heupel CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lisa A. Foster, Judge. Affirmed.

A jury convicted Anthony Evan Heupel of throwing a substance at a vehicle and its occupant with intent to do great bodily injury (count 1: Veh. Code, § 23110, subd. (b), hereafter Vehicle Code section 23110(b)) and assault with force likely to produce great bodily injury (count 2: Pen. Code, § 245, subd. (a)(1), hereafter Penal Code section 245(a)(1)). The court sentenced Heupel on count 2 to 365 days' local confinement, but stayed imposition of sentence for count 1 (§ 654) and granted three years' formal probation. Heupel appeals, contending (1) the court abused its discretion by denying his two Marsden^[1] motions for replacement of court-appointed defense counsel in light of a breakdown in the relationship between Heupel and his appointed counsel, and (2) the court erred by allowing convictions on both counts because count 1 (Veh. Code, § 23110(b)) is a lesser included offense of count 2 (Pen. Code, § 245(a)(1)), compelling a single felony conviction. We affirm.

FACTUAL BACKGROUND

On the afternoon of September 12, 2004, Monte Wright drove his car north on Genesee Avenue toward University Towne Center and stopped at the intersection of Clairemont Mesa Boulevard. Before stopping, Wright recognized Heupel, a former high school friend, riding a bike north on the sidewalk along Genesee Avenue. Wright made eye contact with Heupel, who stopped, got off his bike, and picked up a piece of concrete. Heupel ran behind Wright's car to the open driver's side window and threw the piece of concrete at Wright, striking him in the left arm and ribs. Wright sustained bruising from the impact. Wright immediately called police and filed a complaint against Heupel.

DISCUSSION

I. Denial of Marsden Motions

Heupel contends the court abused its discretion by denying his two Marsden motions because his relationship with appointed defense counsel suffered a total failure. We reject this contention.

A. Applicable Legal Principles

The California Supreme Court in People v. Hart (1999) 20 Cal.4th 546 (Hart) explained that "[t]he governing legal principles are well settled. '"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."'" (Id. at p. 603, quoting People v. Crandell (1988) 46 Cal.3d 833, 854.) "'"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.]'" (Hart, supra, at p. 603.)

In People v. Smith (2003) 30 Cal.4th 581 (Smith), our high court held that "the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." (Id. at p. 606, italics added, citing People v. Barnett (1998) 17 Cal.4th 1044, 1086.) "Disagreement concerning tactics, by itself, is insufficient to compel discharge of counsel." (Smith, supra, 30 Cal.4th at p. 606.)

Denial of a Marsden motion "is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel." (People v. Webster (1991) 54 Cal.3d 411, 435 (Webster), citing Marsden, supra, 2 Cal.3d at pp. 123-124.)

B. Heupel's First Marsden Motion

Heupel claims the record demonstrates that communications between appointed defense counsel and himself establish a total failure of the attorney-client relationship. This claim is unavailing.

1. Background

Heupel expressed dissatisfaction with counsel at his preliminary hearing stating, "I feel my attorney is duly unprepared . . . . She has shown no substantial effort in cross-examining the alleged victims. . . . [¶] . . . I am not willing to participate and continue until I have effective counsel ready to represent me to the best of my interests."

The court replied, "It sounds like you want a Marsden hearing," and proceeded to conduct one. Heupel specified complaints about counsel stating, "[Counsel] has informed me nothing about her stats, her ratings. She's provided me no kinds of reports. . . . [S]he said she would. [¶] Also, . . . I asked her if I can get a continu[ance] for this because I'm not ready . . . for the preliminary hearing. . . . [¶] She briefly spoke to me for about two minutes or less and that's the total contact that I ever had with her. [¶] . . . She's very noninformative."

Heupel's counsel responded to each of his complaints stating, "I went over the police report with him . . . . [¶] . . . [¶] But for him to say I'm not able to cross-examine the witnesses, we haven't even had the preliminary hearing yet." Also, counsel stated, "I didn't ask for a continu[ance] . . . [because] the [P]eople don't like to give you a continu[ance] just because they have already subpoenaed their witnesses . . . ." Counsel also said she briefly considered filing an incompetence motion (Pen. Code, § 1368, subd. (b))^[2] because at the initial interview, when she asked Heupel about the alleged attack on Wright, he said, "I don't remember anything while [that] was happening."

The court denied Heupel's Marsden motion stating, "Mr. Heupel, you can't judge cross-examination until it happens. . . . [¶] . . . [¶] In terms of not being prepared, it doesn't take a lot of preparation for a preliminary hearing. . . . [¶] . . . [I]n most cases there are no witnesses to be called by the defense in a preliminary hearing. [Defense counsel] don't want to let the prosecutor know . . . what your defenses are if it goes beyond today. . . . [¶] . . . [¶] . . . I'm going to deny the motion; there isn't evidence to show that counsel will not be able to represent you appropriately."

2. Analysis

The trial court conducted the Marsden hearing as required by Hart, supra, 20 Cal.4th at page 603. The court permitted Heupel to specify his complaints about counsel's representation and allowed counsel to address each complaint. Counsel reviewed the charges with Heupel and tried to obtain his side of events to facilitate defense preparation. The record shows the trial court found counsel adequately represented Heupel.

The record does not show that Heupel and appointed counsel were engaged in an irreconcilable conflict. Rather, it shows Heupel was uncooperative with counsel at the initial interview. "[A] trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel . . . ." (Smith, supra, 30 Cal.4th at p. 606.) Additionally, in seeking to replace counsel during the preliminary hearing before any witnesses testified, Heupel failed to give counsel a "fair opportunity to demonstrate trustworthiness." (Ibid.) We conclude the trial court did not "substantially impair" Heupel's right to counsel by denying his first Marsden motion, and thus its denial of the motion was not an abuse of discretion. (Webster, supra, 54 Cal.3d at p. 435.)

C. Heupel's Second Marsden Motion

Heupel also claims the court ignored an irreconcilable conflict between himself and appointed defense counsel when it denied his second Marsden motion. This claim is also unavailing.

1. Background

Prior to trial, Heupel wrote a letter to the court. The court treated the letter as another request for new counsel and conducted a second Marsden hearing.

In the letter, Heupel listed the following specific complaints about counsel: "1.) A redacted copy of the discovery has not been made available for my review. However, I did receive a work copy after my preliminary hearing. . . . 2.) Every attempt on my part to establish contact prior to [the preliminary hearing] with [counsel] has been unsuccessful. 3.) To date [counsel] has not reviewed the discovery with me in detail. 4.) [Counsel] has neglected to request a bail hearing at the proper opportunity. 5.) During the sum of a total of 2 hours [counsel] has spent with me in the last 126 days, [counsel] has constantly shown a lack [of] willingness to listen to my [input]. 6.) [Counsel] has constantly excluded me from my defense strategy planning. 7.) [Counsel] does not incorporate any arguments that I suggest for my defense. 8.) After numerous requests, she has not reviewed the evidence with me or discussed how it looks until 10 days after [the preliminary hearing]. 9.) [Counsel] has never discussed the weak points of my case. 10.) [Counsel] has not informed me of any investigator she obtained to clear up or develop[] evidence that would help me in my case. . . . 11.) [Counsel] has overlooked or disregarded crucial evidence and statements in the discovery. 12.) [Counsel] has made it impossible for me to monitor her progress. 13.) [Counsel] has not made any attempt to file any motions. I have suggested many motions and she has disregarded my [input], and fails to offer any defense."

During the Marsden hearing, Heupel expressed two additional complaints: "I was asked to waive something. . . . I went ahead and waived that. I don't even know if that was the right thing to do. . . . [¶] . . . [L]ast time I came to court to pick my jury, all my clothes were, like, ten sizes too small."

Heupel's counsel submitted a three-page reply letter responding to his complaints. Counsel stated, "As far as the clothes, I got the size[s] from him. . . . [¶] . . . [¶] . . . So if they were wrong, I apologize. . . . [¶] . . . [¶] . . . I gave him all the discovery . . . . [¶] . . . [¶] . . . So he has everything that I have." Counsel further replied that she did not file a motion to suppress because Heupel had a Fourth Amendment waiver,^[3] she did not file a severance motion^[4] because the trials would not be tried together, and she attempted to schedule the two cases one month apart, but the court decided to schedule the two trials back-to-back. Next, counsel addressed Heupel's concern that he waived something stating, "[A]t the preliminary hearing, he was saying the case is going too fast, that he wanted to waive [statutory] time. . . . [S]o we did waive time . . . at the arraignment . . . . [¶] . . . [¶] [Also] . . . he waived bail review. He's never asked me for a bail review. And normally in order to have a second bail review, there has to be a change in circumstances." Counsel then addressed Heupel's claim that she did not investigate stating, "I do have an investigator on the case . . . ," and then explained that the investigator had checked the victim's (Wright's) background and reinterviewed an eyewitness.

Before denying Heupel's motion, the court told him, "[Counsel] has already indicated to me everything that a good lawyer would do. She has reviewed what you said. She was looking for the defenses in [your statement]. . . . [S]he's got an investigator. She did check out the independent witness . . . . [¶] She's got all the discovery to you. . . .[¶] . . . [¶] I have to deny the motion because there is nothing here that indicates to me that she hasn't operated as a competent counsel."

2. Analysis

Here again, the court conducted the Marsden hearing as required by Hart, supra, 20 Cal.4th at page 603. The court allowed Heupel to specifically enumerate his complaints about counsel. Counsel responded to each complaint listing the actions she took and providing a rationale for each, thereby showing that (as the court found) she did "everything that a good lawyer would do."

Regarding an irreconcilable conflict, the record does not establish that Heupel and counsel suffered a total failure of the attorney-client relationship; rather, it shows merely miscommunication, good faith mistake, or tactical difference.

The record shows several miscommunications between Heupel and appointed counsel. Heupel complained that he only received a work copy of the discovery. However, counsel stated she gave Heupel the entire discovery. Heupel complained that counsel had not informed him whether she had obtained an investigator. Counsel told the court she had obtained an investigator and an investigation had taken place. Heupel also complained that he was unsure of what right he had waived. However, counsel advised Heupel to waive statutory time for trial because Heupel expressed concern the process was moving too fast and to waive bail review because no change had occurred in Heupel's circumstance since bail was set. These examples do not establish that Heupel and counsel were "embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (Hart, supra, 20 Cal.4th at p. 603.) They merely establish a series of miscommunications.

Additionally, Heupel's complaint that clothes provided for him did not fit resulted from a good faith mistake. Counsel stated that she obtained the sizes from Heupel and apologized for the error. Again, this does not show that Heupel and counsel were involved in such an irreconcilable conflict that ineffective representation was likely to result.

The complaints listed in items 6 and 7 of Heupel's letter concerned defense strategy planning and arguments for trial. However, as already noted, "[d]isagreement concerning tactics, by itself, is insufficient to compel discharge of counsel." (Smith, supra, 30 Cal.4th at p. 606.)

In item 5 of his letter, Heupel complained that he had seen counsel for only two hours in 126 days, and counsel had shown unwillingness to listen to his input. In addition, Heupel complained in items 8 and 9 that counsel had not reviewed with him either the evidence or the weak points of his case. Further, Heupel complained in item 12 that counsel had made it impossible for him to monitor her progress. These specific complaints did not merit new appointed counsel because "the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence." (People v. Silva (1988) 45 Cal.3d 604, 622.) Here, the record shows (as the court found) that counsel performed competently.

Finally, in item 11 of his letter, Heupel complained that counsel overlooked or disregarded evidence. This complaint is not corroborated by the record, which shows that Heupel's appointed counsel investigated witnesses and reviewed his statement for possible defenses.

We conclude the court did not abuse its discretion by denying Heupel's second Marsden motion because the denial did not "substantially impair" his right to counsel. (Webster, supra, 54 Cal.3d at p. 435.)

II. MULTIPLE CONVICTIONS

Heupel also contends the court erred in allowing convictions for both throwing a substance at a vehicle and its occupant with intent to do great bodily injury (count 1: Veh. Code, § 23110(b)) and assault with force likely to produce great bodily injury (count 2: Pen. Code, § 245(a)(1)) because count 1 is a lesser included offense of count 2. We reject this contention.

A. Applicable Legal Principles

Multiple convictions are permissible under Penal Code section 954, however "[a] judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.'" (People v. Reed (2006) 38 Cal.4th 1224, 1227, quoting People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Our high state court in Reed stated the rule for determining whether multiple convictions are necessarily included: "Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Reed, supra, 38 Cal.4th at p. 1231.) Under the statutory elements test, "'"if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former."'" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1168, quoting Montoya, supra, 33 Cal.4th at p. 1034.)

B. Background

Heupel was charged and convicted of both throwing a substance at a vehicle and its occupant with intent to do great bodily injury (Veh. Code, § 23110(b)─count 1) and assault with force likely to produce great bodily injury (Pen. Code, § 245(a)(1)─count 2), but imposition of the sentence for count 1 was stayed under Penal Code section 654 to avoid punishment under more than one provision for the one act of throwing concrete at the victim (Wright).

C. Analysis

Heupel asserts the presence of an automobile in this case was irrelevant because the object was thrown directly at Wright, not the automobile, and thus he could not have committed the Penal Code section 245(a)(1) offense charged in count 2 without necessarily committing the Vehicle Code section 23110(b) offense charged in count 1. We reject this assertion.

Vehicle Code section 23110(b) provides that "[a]ny person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm . . . at [a] vehicle or occupant thereof is guilty of a felony . . . ."

The foregoing statutory language plainly indicates a "vehicle or occupant [of a vehicle]" is an essential element of the offense described in Vehicle Code section 23110(b).

In Findley v. Justice Court (1976) 62 Cal.App.3d 566, 572, the Court of Appeal explained the purpose of a related statute─Vehicle Code section 23110, subdivision (a)^[5]─by stating a substance thrown at a vehicle "could distract the driver, or result in his injury or in an injury to any occupant, or do some mischief to the vehicle itself." (See also In re Wasif M. (2004) 119 Cal.App.4th 176, 183 [recognizing that one of the purposes of a similar statute prohibiting the willful throwing of an object at a bus (Pen. Code, § 219.2) is to safeguard drivers from distractions that could result in injury].) This explanation also applies with respect to the felony offense described in subdivision (b) of Vehicle Code section 23110, which includes the additional element of specific intent to do or cause great bodily injury. The inclusion of the term "a vehicle" in the statutory language of that subdivision is important under the facts of this case because Huepel's act of throwing the piece of concrete at Wright could have caused Wright to lose control of the vehicle he was driving, placing others at risk of harm.

Penal Code section 245(a)(1) provides that "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished . . . ." A conviction under Penal Code section 245(a)(1) does not require proof of the presence of a vehicle or vehicle occupant.

Thus, contrary to Heupel's assertion, the presence of Wright's car is relevant as an element of the crime he committed in violation of Vehicle Code section 23110(b), and is critical to the analysis under the elements test. Unlike an assault conviction under section Penal Code section 245(a)(1), conviction under Vehicle Code section 23110(b) requires proof of the presence of a vehicle.

In addition, conviction under Vehicle Code section 23110(b) requires proof that defendant acted with "intent to do great bodily harm." This intent element is in addition to the element of a malicious and willful throwing of a substance at a vehicle or occupant of a vehicle, and thus violation of Vehicle Code section 23110(b) is a specific intent crime. (See In re Wasif, supra, 119 Cal.App. 4th at p. 181 ["'"When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent"'"].) In contrast, conviction under Penal Code section 245(a)(1) requires proof the defendant committed an act "likely to produce great bodily injury." Because there is no statutory requirement under Penal Code section 245(a)(1) that defendant intend to cause such an injury, a violation of that statute is a general intent crime. (People v. Rocha (1971) 3 Cal.3d 893, 898-899.)

Because a conviction under Vehicle Code section 23110(b) requires proof of specific intent and the presence of a vehicle, which are not essential elements of a violation of Penal Code section 245(a)(1), the former is not a lesser offense that is necessarily included in the latter. Thus, here, count 1 (Veh. Code, § 23110(b)) is not a lesser offense necessarily included in count 2 (Pen. Code, § 245(a)(1)).

In his reply brief, Heupel claims Penal Code section 245(a)(1) should be viewed as a lesser included offense of Vehicle Code section 23110(b). This attempt to expand his original claim is unavailing. "[C]laims generally may not be raised for the first time in a reply brief." (People v. Peevy (1998) 17 Cal.4th 1184, 1208.) In any event, an act of throwing a substance solely at a vehicle, rather than at an occupant of a vehicle, in violation of Vehicle Code section 23110(b) would not also constitute an assault in violation of Penal Code section 245(a)(1), and thus a violation of Penal Code section 245(a)(1) is not a lesser offense necessarily included in a violation of Vehicle Code section 23110(b).

For the foregoing reasons, we conclude that Vehicle Code section 23110(b) is not a lesser included offense of Penal Code section 245(a)(1), and thus Heupel's conviction of both offenses was proper.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P.J.

O'ROURKE, J.

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^[1] People v. Marsden (1970) 2 Cal.3d 118, 124 (Marsden), holding "a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney."

^[2] Section 1368, subdivision (b) provides in part: "If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing."

^[3] At the time of his arrest, Heupel was on three years' probation stemming from three misdemeanor convictions in 2003.

^[4] Heupel's counsel also represented him regarding an unrelated charge of possession of stolen property and possession of methamphetamine to which he pleaded no contest.

^[5] Vehicle Code section 23110, subdivision (a), which is not at issue in this case, describes a misdemeanor offense and provides: "Any person who throws any substance at a vehicle or occupant thereof on a highway is guilty of a misdemeanor."