P. v. Khuu

Filed 3/30/06 P. v. Khuu CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Hoa Trung Khuu appeals his conviction by jury trial for two counts of first degree burglary (Pen. Code, § 460, subd. (a))^[1] (counts 1 & 3), one count of attempted first degree burglary (§§ 664, 460, subd. (a)) (count 2) and two counts of receiving stolen property (§ 496, subd. (a)) (counts 4 & 5). The court found true allegations of a prior strike and a prior serious felony. (§§ 1170.12, subd. (c)(1), 667, subd. (a).) Defendant contends that the trial court denied his request to discharge his retained attorney, thus violating his state and federal constitutional rights to due process and assistance of counsel.^[2] We disagree and affirm.

Factual Background

Attempted Burglary of Tommy Hui

On March 10, 2004, Tommy Hui worked from his Foster City home. At around noon, he heard footsteps, peeked out his front door and saw a black Range Rover parked in front of his house. He then heard his doorbell ring repeatedly and the footsteps of a person walking away from his front door. After going upstairs, he heard the sound of metal scraping near the side of his house. When he went downstairs to investigate, he saw two men outside his home, one of whom was using an instrument to pry open the door. When Hui yelled, the two men ran away. Hui then called the police.

Police Officer William Sandri received a dispatch with descriptions of the suspects and the Range Rover. While on his way to the Hui home, Sandri noticed a black Range Rover and initiated a traffic stop. The Range Rover came to a stop and the two males inside then fled on foot. Sandri caught up with the suspects and saw them bending over, breathing heavily. When he ordered them to the ground, the suspects hopped a nearby fence. Sandri was joined in pursuit by Officer Mark Lee. While fleeing, a cell phone belonging to defendant's mother fell out of one of the suspect's pockets.

Lee suspected that the men went to a nearby lagoon. As he approached, he saw a man, later identified as defendant, hiding behind a boat. Defendant then tried to swim across the lagoon. When Lee ordered him to give up, defendant told the officer to shoot him. Defendant eventually emerged from the water, went over a fence and lay down on the grass. As Lee approached, defendant got up, climbed over the fence and again fled.

San Mateo County Deputy Sheriff Kenneth Kammuller participated in the search and eventually found defendant hiding inside a garbage can. Defendant was taken into custody, as was the second suspect, Ryan Bui, who was found hiding underneath bushes inside a nearby yard.

Burglary of the Chi and Hung Residences

Inside the Range Rover, officers found various items and currency belonging to the Chi and Hung families. On March 9, 2004, Sharon Chi went on a trip, leaving behind over $3,000 in a cabinet, a collection of $2 bills, jewelry and a Rolex watch. The next day, her husband Yao Chi left for work. He did not notice anything missing when he returned home later that evening. However, a day later, when he went to the cabinet, he noticed it was slightly open and had pry marks and scratches and that all the money inside was missing. The screen to the bathroom window had been pried open. He realized sometime afterward that his Rolex watch was missing. When she returned from her trip, Mrs. Chi discovered that her jewelry was also missing. She later recognized her jewelry in a police photograph.

Other items inside the Range Rover belonged to the Hung family. On the morning of March 10, 2004, George Hung left for work and made sure that all doors and windows were closed and locked. Later that day, he received a phone call from police stating that they had found his name on property inside the Range Rover. When he arrived home, he saw that the garage door knob was broken and that a laptop computer, camera, money and jewelry were missing. His wife, Pamela, noticed that the curtain in the living room was closed when she had left it open that morning. The Hungs later identified property found inside the Range Rover as property stolen from their residence.

On September 8, 2004, a jury found defendant guilty on all counts. On November 18, 2004, the court sentenced defendant to 17 years in state prison.^[3] Defendant filed a timely notice of appeal.

Discussion

On October 21, 2004, following trial, but prior to sentencing, defense attorney Frank Bell moved to withdraw as defendant's retained counsel. In his motion, Bell stated that defendant and his family had paid him an initial $15,000 deposit but had not paid any other bills. According to Bell, defendant indicated that he did not intend to pay the money owed because â€