P. v. Chavez

Filed 3/28/07 P. v. Chavez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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A jury convicted defendant Juan D. Chavez of attempted first degree murder (Pen. Code, 664/187) and assault with a firearm (Pen. Code, 245, subd. (a)(2)) and found true allegations that defendant personally discharged a firearm (Pen. Code, 12022.53, subd. (d)), inflicted great bodily injury (Pen. Code, 12022.7, subd. (a)), and personally used a firearm (Pen. Code, 12022.5, subd. (a)). The trial court sentenced defendant to life in prison for attempted murder, added a consecutive 25-year-to-life term for the Penal Code section 12022.53 enhancement, and stayed the remaining terms.

On appeal, defendant contends (1) the trial court abused its discretion by allowing the prosecution to amend the information to add the word premeditated to the attempted murder count, (2) erroneously denied his motion for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, and (3) should have dismissed the assault with a firearm count as a lesser included offense of attempted premeditated murder. We reject the contentions and affirm the judgment.

Facts and Proceedings

On May 15, 2004, at around 9:30 p.m., Daniel Rosas, Hector Lozano, and Antonio Abarca were standing by a Ford Eclipse parked on Grant Street. A Ford Focus driven by defendant passed by and nearly ran them over.

The Focus returned about 10 to 15 minutes later and parked in the middle of the road across from Rosas and his friends. Rosas walked up to the Focus and told defendant I dont have any problem with you. Defendant did not immediately respond, but said Ill be back as he drove off.

About 15 to 20 minutes later, defendant again drove up and parked in the middle of the street near the Eclipse. Defendant was in the rear seat of the Focus on the drivers side and his window was down. Rosas walked up to defendant and told him I dont have no problem. Defendant immediately shot Rosas in the chest with a shotgun and the Focus sped away. Rosas turned and fell to the ground. Rosas sustained life threatening injuries from the attack.

Rosas was not carrying a weapon nor did he say anything threatening to defendant on the night of the attack. Rosas lived in the same neighborhood as defendant and knew where he lived. He did not know defendants name until the police told him.

Abarca once bought a car through defendant. The car was in defendants name, but Abarca made monthly payments to defendant for the loan and insurance. After making three payments, Abarca stopped paying defendant. Defendant told Abarca there were no hard feelings because defendant was planning on selling the car to someone else.

Defendant testified on his behalf along with his girlfriend, Dulce De Castro, her sister, and her mother. Defendant lived with his girlfriend and her mother in the mothers house. On the night of the shooting, they watched television until about 8:45 p.m., then went to Rosas to watch movies. They got to Rosas between 9:00 and 9:10 p.m. and left the following morning.

Discussion

I

Amendment of the Charge

Defendant claims his defense was prejudiced by the trial courts decision to allow the prosecution to amend the attempted murder charge to include the word premeditated.

While the trial was recessed waiting for the prosecutions last witness to testify on the next day, the parties and the trial court discussed the jury instructions. The parties agreed with the court that CALJIC No. 8.20, which defines deliberate and premeditated murder, was unnecessary because the jury would be instructed with CALJIC No. 8.67, the instruction on willful, premeditated, and deliberate attempted murder.

The trial court noted the verdict form defined the offense as willful, deliberate, premeditated attempted murder, and defense counsel pointed out the offense is not actually charged as premeditated though, is it? The trial court determined the attempted murder charge did not contain the term premeditated. Over defendants objection, the court granted the prosecutions motion to amend the information to include the word premeditation in count one, the attempted murder charge.

As explained by People v. Winters (1990) 221 Cal.App.3d 997, 1005 (Winters), Penal Code Section 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. The questions of whether the prosecution should be permitted to amend the information and whether a continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion. Moreover, a trial court correctly exercises its discretion by allowing an amendment of an information to properly state the offense at the conclusion of the trial. Similarly, where the amendment makes no substantial change in the offense charged and requires no additional preparation or evidence to meet the change, the denial of a continuance is justified and proper.

Defendant contends he did not have sufficient notice he would be charged with a different offense. Since the information was amended after the testimony of the prosecutions chief witnesses, defendant argues he was deprived of the ability to conduct meaningful cross-examination on the issue of premeditation.

Penal Code section 1157 provides that when a defendant is convicted of a crime . . . which is distinguished into degrees, the judge or jury must find the degree of the crime. A simple charge of murder in the information is sufficient to support a conviction for first degree murder. (People v. Anderson (2002) 28 Cal.4th 767, 776.) Applying this rule, the Attorney General contends a charge of attempted murder provides sufficient notice to defendant that the jury could find him guilty of attempted premeditated murder.

Penal Code section 664, subdivision (a) provides in pertinent part: [t]he additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact. It is a general rule of statutory interpretation that, in the event of statutory conflict, a specific provision will control over a general provision. (Tapia v. Pohlmann (1998) 68 Cal.App.4th 1126, 1133.) We conclude the information must contain an allegation that the attempted murder was willful, deliberate, and premeditated.

A charge of attempted murder by itself does not provide sufficient notice of attempted premeditated murder.

However, defendant had notice of the charge of attempted premeditated murder. The information originally charged defendant with ATTEMPTED WILLFUL, DELIBERATE MURDER, a violation of Section 664/187 of the Penal Code but omitted the word premeditated.

In her opening statement, the prosecutor argued the case involved premeditation, willfulness, and deliberation. The parties agreed to instruct the jury with CALJIC No. 8.67, the standard jury instruction defining attempted willful, deliberate, and premeditated murder. The trial court did not abuse its discretion by concluding defendant had adequate notice of premeditation.

The remedy for any prejudice caused to the defense by amendment of the information is a continuance. (Winters, supra, 221 Cal.App.3d at p. 1005.) Defendant asked for a continuance after the trial courts ruling on the motion to amend. The court continued the trial from Thursday afternoon, the day of the hearing, until the following Tuesday. Defendant was given adequate time to react to the amendment of the information and to request the recall of witnesses or otherwise attack the prosecutions case in chief before presenting his own. We note that his defense was not based on a lack of premeditation, but simply on the claim that he was not the shooter and he had an alibi. He cannot now complain the trial courts ruling prejudiced his defense.

Defendant contends if the amendment was proper, then counsel was ineffective for failing to appraise defendant of his exposure to the charge of attempted premeditated murder. Attempted premeditated murder carries a life sentence, while attempted murder is punishable by five, seven, or nine years in prison. (Pen. Code, 664, subd. (a).) Defendant argues the failure to apprise defendant of the life sentence for attempted premeditated murder kept defendant from accepting a favorable plea bargain.

Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) We need not consider whether counsels performance was deficient before evaluating whether the defendant suffered any prejudice. (Ibid.)

Defendant was already facing a sentence of 25 years to life on the enhancement for discharge of a weapon. (Pen. Code, 12022.53, subd. (d)) and he was aware of plea negotiations. It appears he already had rejected an offer of nine years in state prison in the face of a potential sentence of 25 years to life. Nothing in the record supports defendants contention that he would have changed his plea had he known he was charged with attempted premeditated murder rather than attempted murder. Accordingly, defendant has not established prejudice from the alleged failure of counsel to apprise him of the attempted premeditated murder charge.

II

The Marsden Motion

Defendant contends the trial court abused its discretion by denying his Marsden motion without giving him the opportunity to explain his dissatisfaction with counsel.

The trial court started the Marsden hearing by asking defendant what did you want to say about your attorney? Defendant replied, Well, that I need another attorney because the one I have is not doing anything. Its my life thats at stake. The court said, Okay, and defendant stated, I will not go to prison for something I did not do.

The court explained this was why he was having a trial. By entering a plea of not guilty, defendant required the prosecution to prove its case by submitting evidence at trial. Defendant said, Yes, because I dont know what evidence they have against me.

The trial court reminded defendant he was present during the preliminary hearing, where the prosecution presented most of the evidence it would submit at trial. Defendant acknowledged attending the preliminary hearing.

Defendant said he did not know if counsel explained to him what happens at a jury trial. Trial counsel told the court he gave defendant sort of a brief description of what happens at a jury trial about one month ago. Counsel was ready to go to trial, and his investigator had contacted alibi and prosecution witnesses.

The court concluded by asking defendant if there was anything else he wanted to say. Defendant said I just dont understand that this could be happening because of some people that are accusing me of something I havent done--its because of them that Im facing prison.

The trial court gave a more detailed explanation to defendant of what happens at a trial. The court told defendant it was his decision whether to go to trial. Defendant then asked, What is the deal being offered to me?

Trial counsel told the court the latest offer from the prosecution was nine years, although he was trying to get a lower term. Counsel had not yet talked to defendant about whether the district attorney would even accept anything lower. The court told defendant it was understandable that defendant was upset with facing a possible prison term, but there was no basis for granting his Marsden motion.

When a defendant seeks substitution of appointed counsel on the ground of ineffective representation, the trial court must allow the defendant to explain in detail. If defendant shows appointed counsel is providing inadequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result, defendant is entitled to substitute counsel. (People v. Fierro (1991) 1 Cal.4th 173, 204.) [S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation] . . . . (People v. Smith (1993) 6 Cal.4th 684, 696.) A trial courts ruling denying a Marsden motion is reviewed for abuse of discretion. (People v. Earp (1999) 20 Cal.4th 826, 876.)

We find no abuse of discretion. The trial court allowed defendant the opportunity to explain his complaints about counsels performance. Defense counsel and the court responded to each complaint. (People v. Silva (2001) 25 Cal.4th 345, 366-367.) Defendant has not demonstrated an irreconcilable conflict with counsel that impaired his right to assistance of counsel.

III

Lesser Included Offense

By supplemental brief, defendant asserts the trial court should have dismissed the assault with a firearm count as a lesser included offense of attempted premeditated murder with a firearm use enhancement. We cannot agree.

Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.)

Under the statutory elements test, assault with a firearm is not included within attempted murder, and [t]he same result obtains under the accusatory pleading test because firearm use and great bodily injury enhancements may not be considered when determining whether an offense is necessarily included under this test. (People v. Parks (2004) 118 Cal.App.4th 1, 6; see People v. Wolcott (1983) 34 Cal.3d 92, 101 (Wolcott).)

Defendant argues, however, we should reject the latter holding because Wolcott, has been superseded by Apprendi v. New Jersey (2000) 530 U.S. 466, [147 L.Ed.2d 435] (Apprendi) as explained in People v. Seel (2004) 34 Cal.4th 535, 550 (Seel).

Nothing in either Apprendi or Seel undermines the California Supreme Courts holding in Wolcott. Apprendi held that sentencing enhancements must be tried to the jury. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) Applying Apprendi, the California Supreme Court concluded in Seel that the premeditation allegation in an attempted murder case constitutes the functional equivalent of an element of the greater offense (attempted first degree murder, rather than attempted second degree murder) within the meaning of the federal double jeopardy clause: [W]hen the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. (Seel, supra, 34 Cal.4th at pp. 546-547, quoting Apprendi, supra, 530 U.S. at p. 494, fn. 19 [147 L.Ed.2d at p. 458, fn. 19].)

Neither the holding nor the reasoning of Seel conflicts with the conclusion in Wolcott that a firearm use enhancement does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used. (Wolcott, supra, 34 Cal.3d at p. 100.) Seel never addressed the holding of Wolcott, and the California Supreme Court has not overruled Wolcott in any subsequent decision. We remain obligated to follow Wolcott. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Disposition

The judgment is affirmed.

HULL, J.

We concur:

SIMS , Acting P.J.

NICHOLSON , J.

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