P. v. Gundelfinger

Filed 10/12/07 P. v. Gundelfinger 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, Patricia Cookson, Judge. Affirmed.

A jury convicted Charles Gundelfinger of burglary of an inhabited dwelling (Pen. Code, 459, 460) and vandalism (Pen. Code, 594, subd. (a)(b)(2)(A)). The court sentenced him to 365 days in local custody after the victims, his parents, requested he be spared prison commitment.

Gundelfinger appeals, contending there is insufficient evidence of intent to support his burglary conviction and the court erred by denying his Marsden^[1]motion for replacement counsel. We affirm in full.

FACTS

Charles Gundelfinger lived with his parents until they requested he leave and not return. On April 14, 2006, Gundelfinger sought food and refuge from the rain at his parents' home. Because he did not have house keys, he attempted to enter through a rear bedroom window. His mother, Melody Gundelfinger, who was home at the time, confronted Gundelfinger at the window after she heard the screen being removed. Melody told him to leave and warned she would call the police. Charles refused to leave and stated he was going to come inside because it was raining and he was hungry. After Melody refused to allow him in or provide any aid, Charles walked around the house, kicked in a side garage door, took food from pantry cabinets, and left. A deputy sheriff arrested Gundelfinger nearby as he ate the stolen food.

DISCUSSION

I

SUFFICIENCY OF THE EVIDENCE

Gundelfinger contends there was insufficient evidence of intent to support his burglary conviction. We disagree.

Gundelfinger erroneously contends that CALCRIM No. 224 (Judicial Council of Cal. Crim. Jury Instns. (2006-2007)), a jury instruction addressing conflicting circumstantial evidence, governs the standard of review on appeal. While CALCRIM No. 224 governs the jury's decisionmaking in the trial court, the standard shifts and jury instructions have no bearing on appeal, where this Court reviews the judgment for substantial evidence.

In reviewing the sufficiency of the evidence to support a conviction, the proper standard requires us to determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under this standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

We may find substantial evidence of intent to commit theft based on rational inferences and circumstantial evidence. "Commonly, . . . intent [to commit a felony or theft] must be inferred from the circumstances of the charged offense or offenses. [Citation.] ' "While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." [Citations.]' [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 669-670.)

We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, 312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) Gundelfinger fails to satisfy this burden.

Though Gundelfinger testified he did not form the intent to steal until he was inside the garage, the People presented substantial evidence from which a jury could infer intent. For example, despite his knowledge that his mother would not let him in the house, Gundelfinger persisted in his attempt to gain entry as he circled the house and knocked on windows. After his mother continued to deny him entry, Gundelfinger "kicked in the . . . door and got some food because he was hungry." After he entered the garage, Gundelfinger yelled "you fucking whore, that's what you get for fucking around, you fucking whore." Gundelfinger's actions and statements tend to negate his testimony that he only sought to talk to his mother and seek shelter when he forcibly entered the garage.

Additionally, Gundelfinger testified Melody's calling the police after he entered the garage induced him to abandon his search for shelter, and he formed the intent to steal only at that point in response to Melody's actions. However, Charles's testimony logically conflicts with Melody's testimony that she initially told him she would call the police when he was outside the house. A jury could reasonably settle this conflict and infer that Melody's call to the police when Charles was inside the house did not affect or induce him to leave because her initial threat to call the police had not deterred him from forcibly entering the garage. Based on Melody's continued refusal to provide Gundelfinger any aid and his actions and statements, a jury could reasonably infer Gundelfinger knew his mother would not voluntarily give him shelter or food and, thus, formed the intent to forcibly take what he wanted before entering the garage.

We conclude there was substantial evidence to support the jury's finding that Gundelfinger formed the intent to steal before he entered the garage and was guilty of burglary.

II

MARSDEN MOTION

Gundelfinger contends the court erred in denying his Marsden motion for substitution of his attorney. On this record, the court properly denied Gundelfinger's Marsden motion.

A trial court has broad discretion to grant or deny a motion. When the court denies a Marsden motion, we review the denial under an abuse of discretion standard. (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) A denial is not an abuse of discretion unless the defendant shows the failure to replace the appointed attorney substantially impaired the defendant's right to competent counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) A trial court's discretionary decision will not be disturbed on appeal if there exists a reasonable or even fairly debatable justification under the law for the action taken. (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.) Consequently, we will interfere with the trial court's exercise of discretion only when we conclude that under all the circumstances, viewed most favorably in support of the trial court's action, no judge could have reasonably reached the challenged result. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

Under article I, section 15 of the California Constitution, a defendant in a criminal case has a right to competent assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) Under the Marsden standard, a defendant must show that appointed counsel is not providing competent representation or that there is an irreconcilable conflict such that ineffective representation is likely to result. (People v. Dickey (2005) 35 Cal.4th 884, 917.) However, "a defendant does not have the right to the appointment of new counsel absent a clear showing of inadequate representation." (People v. Silva (1988) 45 Cal.3d 604, 622.) "All Marsden held was that a defendant is denied a fair trial when the trial court refuses to hear enumerated specific examples of inadequate representation." (People v. Huffman (1977) 71 Cal.App.3d 63, 77 (Huffman).) The trial court must permit the defendant to explain the basis of his contention and relate specific instances of the attorney's inadequate performance. (Marsden, supra, 2 Cal.3d 118 at p. 124.) When the defendant is afforded an opportunity to state the reasons for discharging an appointed attorney, the trial court's decision to allow a substitution of attorney is discretionary unless the defendant has shown that failure to order substitution is likely to result in constitutionally inadequate representation.

Here, the trial court complied with the requirements of Marsden by asking Gundelfinger to explain the reasons for his dissatisfaction with counsel and then listening fully to the reasons he specified for seeking substitution of counsel. (People v. Salazar (1977) 74 Cal.App.3d 875, 887; Huffman, supra, 71 Cal.App.3d at p. 77.) Gundelfinger explained his counsel "[did not] want to bring up things [Gundelfinger felt] need[ed] to be brought up." He objected that the burglary charge was not proper and felt he was guilty of other uncharged offenses. He further believed he could not be guilty of burglary because he had been a resident of his parents' home 15 days before the crime and had never been evicted. He also explained he did not have the intent to steal food when he went to the house. Counsel explained he did not believe Gundelfinger's "theories of the case [were] legally correct." We conclude Gundelfinger's reasons for his request were essentially objections to counsel's trial strategy.

"There is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. [Citations.] Nor does a disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney." (People v. Lucky (1988) 45 Cal.3d 259, 281-282.) Gundelfinger has not shown his disagreements with counsel signaled "a breakdown in the attorney-client relationship of such magnitude as to jeopardize [his] right to effective assistance of counsel." (People v. Robles (1970) 2 Cal.3d 205, 215.) The alleged relationship breakdown here was a direct result of a difference of opinion over trial strategy. Gundelfinger wanted counsel to advance legal theories that counsel felt were incorrect. "[A]n attorney representing a criminal defendant has the power to control the court proceedings." (People v. Guillen (1974) 37 Cal.App.3d 976, 981.) As the court found, this was "just a question of whether or not [Gundelfinger's] disagreement over a defense constitutes a breakdown in a relationship . . . ." We conclude the disagreement did not constitute a breakdown in the attorney-client relationship. Therefore, the court acted within its discretion in finding Gundelfinger did not make a showing sufficient to justify discharge of his appointed counsel. (See People v. Crandell (1988) 46 Cal.3d 833, 859-861, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; Silva, supra, 45 Cal.3d at p. 622; Marsden, supra, 2 Cal.3d at p. 123; Salazar, supra, 74 Cal.App.3d at p. 887.)

However, Gundelfinger contends that a sufficient showing was made at the time of the Marsden motion because counsel "refused" to further assist him in his defense and stated that "communication between us has totally broken down . . . ." He also contends one of Gundelfinger's enumerated reasons that counsel did not want to present evidence that he did not "go to the property with intentions to steal the food," bore directly on his defense.

We first note that counsel made this statement after the Marsden motion in the context of a motion in limine. It, therefore, has no bearing on the Marsden motion. Second, counsel did not refuse to assist Gundelfinger if he testified, but indicated that he had no questions to ask if Gundelfinger testified to what counsel considered a legally incorrect theory.

Third, counsel correctly believed that Gundelfinger's intent theory was legally incorrect. To commit burglary, one must form the intent to steal at the time of entry. (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166; People v. Henderson (1956) 138 Cal.App.2d 505, 509.) During the Marsden motion, Gundelfinger stated he "didn't go to the property with intentions to steal." Gundelfinger may not have originally intended to steal anything or kick in the garage door when he went to the property, but his lack of intent as he traveled to the house is irrelevant. The intent element is satisfied so long as he had the requisite intent at the time he entered the garage.

Finally, counsel was not responsible for any breakdown in the relationship. (People v. Smith (2003) 30 Cal.4th 581, 606.) Counsel's statement regarding the state of their relationship "was based on what defendant had told the court and does not itself compel the court to grant new counsel." (Ibid.) "[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict." (People v. Smith (1993) 6 Cal.4th 684, 696.) A contrary view would eviscerate the standard required to substitute counsel, as any disagreement over trial strategy would prompt the court to replace counsel.

Because the record does not show any significant impairment of Gundelfinger's right to competent counsel, we conclude the trial court properly denied his Marsden motion.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

BENKE, J.

AARON, J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118.