P. v. Reyes

Filed 5/10/07 P. v. Reyes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Jose Richard Reyes of second degree murder and petty theft. He contends the trial court erred in denying his mistrial motion and his motion to discharge his counsel. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Walter Shubin was found dead near his apartment on December 19, 2004. Reyes was seen displaying Shubins passport and was in possession of Shubins watch. Reyess right thumbprint was on a wine bottle found at the crime scene. His hat was at the crime scene. A knife found in Reyess apartment had Shubins blood on it.

Shubin sustained 15 to 16 separate stab wounds to his face, neck, head, left arm and hand. The cause of death was a massive hemorrhaging from a stab wound to Shubins jugular vein.

Reyes was charged with first degree murder pursuant to Penal Code section 187, subdivision (a)^[1]and robbery, pursuant to section 212.5, subdivision (c). Weapons enhancements also were alleged.

On December 22, 2005, a jury convicted Reyes of the lesser included offense of second degree murder with use of a knife. He also was found guilty of the lesser included offense of petty theft.

The trial court sentenced Reyes to a term of imprisonment of 15 years to life, plus one year.

DISCUSSION

Reyes contends the trial court erred prejudicially in not granting his motion for a mistrial after his outburst from the witness stand during trial. He also claims the trial court erred prejudicially in denying his motion to discharge his trial counsel.

I. Denial of Mistrial Motion

On December 19, 2005, after the prosecution rested its case, defense counsel called Reyes to the stand to testify. When the court clerk attempted to administer the oath, Reyes stated, Youre fired. I -- the jury, I am not guilty and this guy has -- they have railroaded me. I tried to fire him 12 times already. The trial court called for a brief recess. Before the jury was excused, however, Reyes again spoke out claiming he was being held in court. He then went on to state, My public defender is fired. He is fired.

The trial court reiterated that a brief break would be taken and instructed the jury to Please disregard the comments that were made by the defendant and theyre not to be held against him. Well take about a 10-minute break. [] And please do not talk about the case. Kindly continue to keep and maintain an open mind. Thank you.

Out of the presence of the jury, Reyes continued to insist that he had fired his attorney and that he was dissatisfied with his attorney. The trial court attempted to convince Reyes that because his previous motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 had been denied, counsel still represented him.

The trial court observed, Now, you have displayed behavior that is indicating to me that you want to do anything you can to disrupt the orderly progression of this courtroom and thats not going to occur. Reyes continued to disrupt the proceedings, eventually admitting that the intent of his conduct was to Buy time. At that point, the trial court had Reyes removed from the courtroom.

After the outburst by Reyes, defense counsel moved for a mistrial. The People opposed the motion and the trial court denied the motion. When Reyes was returned to the courtroom on December 19, he brought another Marsden motion, which was denied.

The jury returned to the courtroom and the trial court again admonished the jurors to disregard the little situation that occurred just before our break at noon. Thats not evidence and thats not to in any way prejudice you against the defendant or the defense case in this matter.

A trial court should grant a mistrial when prejudice that is not curable by instruction or admonition has occurred. (People v. Hines (1997) 15 Cal.4th 997, 1038.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] (People v. Jenkins (2000) 22 Cal.4th 900, 986.)

No incurable prejudice is present here. Reyess outburst during the trial was brief. The jury was admonished both before and after the break to disregard the conduct and not to allow the conduct to prejudice them against Reyes or the defense in any way.

Furthermore, Reyes should not be allowed to benefit from his own misconduct. A defendant is not, as a matter of policy, allowed to profit from his own misdeeds. Otherwise, a defendant could control the trial through his or her conduct. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1030.) In Lewis and Oliver, the codefendants assaulted their counsel in court and disrupted the proceedings. The trial court denied a mistrial motion and the California Supreme Court affirmed. (Ibid.)

We will not reward Reyes for his conduct. The trial court here did not abuse its discretion in denying the motion for mistrial. (People v. Ayala (2000) 24 Cal.4th 243, 283.)

II. Denial of Marsden Motions

Reyes requested different counsel be appointed in nine separate hearings pursuant to People v. Marsden, supra, 2 Cal.3d 118. On August 4, 2005, the date of the hearing on Reyess fifth Marsden motion, the trial court granted Reyess motion to proceed in propria persona, after admonishing Reyes regarding the pitfalls of self-representation. On October 7, 2005, however, Reyes changed his mind and requested appointment of counsel to represent him. That request was granted and a public defender was appointed for Reyes. Thereafter, Reyes made four more Marsden motions before his outburst at trial. After the request for a mistrial, two additional Marsden motions were made.

Reyes contends that an irreconcilable conflict arose because counsel wanted Reyes to admit to killing Shubin, but plead self-defense. Reyes wanted to challenge the DNA evidence and assert mistaken identity or third party culpability. Thus, Reyes contends the trial court erred prejudicially in denying his request to discharge defense counsel. We disagree.

A defendant is entitled to have counsel discharged and substitute counsel appointed upon a showing that counsel is not providing adequate representation or that counsel and he have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]. [Citations.] (People v. Memro (1995) 11 Cal.4th 786, 857.) The trial court retains discretion to deny a Marsden motion as untimely. (People v. Whitt (1990) 51 Cal.3d 620, 659.) A defendant cannot substitute counsel as a matter of right because to permit unlimited substitutions of counsel would delay trials and prohibit effective prosecution of a case. (People v. Williams (1970) 2 Cal.3d 894, 906.)

Reyes had numerous Marsden hearings. At one point, the trial court did grant Reyess request to represent himself. After a brief period of being self-represented, he then requested counsel be appointed. Shortly thereafter, Reyes again began requesting Marsden hearings. Reyes clearly had a proclivity for requesting Marsden hearings and, because of this, the trial court was aware of the quality of counsels representation. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.)

Reyess contention that he needed substitute counsel is based on Reyess assertion that he and counsel differed on trial tactics. A difference of opinion over trial tactics does not trigger a duty to hold a Marsden hearing. (People v. Valdez(2004) 32 Cal.4th 73, 97.)

Furthermore, Reyes made his request to remove his second counsel from the case on the date trial was scheduled to start, which the trial court deemed an untimely request. A disagreement over trial tactics is not a reason to grant an untimely request. (People v. Scott, supra, 91 Cal.App.4th at p. 1206.)

Although a defendant has a right to have a viable defense presented, and defense counsel cannot override a defendants position, there is no right to present a nonviable defense. (People v. Carter (2005) 36 Cal.4th 1114, 1197.)

Reyess claim that the evidence was suspect and a third party was responsible for Shubins death is not a viable defense considering the state of the evidence. Reyes was in possession of Shubins passport; Reyes left his distinctive cap and fingerprints at the scene; and a knife with blood matching Shubins DNA was in Reyess room. Because Reyes did have blood on his face and appeared to have been in a fight the night that Shubin was killed, counsels suggestion to assert self-defense was a viable defense strategy. Reyes made no showing that he was not being represented effectively by his counsel. Hence, the trial court did not abuse its discretion in denying Reyess Marsden motion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, Acting P.J.

WE CONCUR:

_____________________

DAWSON, J.

_____________________

HILL, J.

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