People v. Garza

• Decision Date: 09 October 2003
• Docket Number: No. H024041.,H024041.
• Citation: 112 Cal.App.4th 655,5 Cal.Rptr.3d 373
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos Ozuna GARZA, Defendant and Appellant.

5 Cal.Rptr.3d 373

112 Cal.App.4th 655

The PEOPLE, Plaintiff and Respondent, v. Carlos Ozuna GARZA, Defendant and Appellant.

No. H024041.

Court of Appeal, Sixth District.

October 9, 2003.

Review Granted January 14, 2004.

Alan Siraco, for Appellant (Under appointment by the Court of Appeal) Carlos Ozuna Garza.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Gerald A. Engler, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, for Respondents The People of the State of California.

RUSHING, P.J.

The defendant, Carlos Ozuna Garza, was found by police in a Lincoln Town Car that had been missing from his former employer for a week. He was under the influence of phencyclidine (PCP). A jury found the defendant guilty of auto theft, receiving or retaining stolen property (the Lincoln) and being under the influence of a controlled substance. He claims on appeal that these charges were unsupported by substantial evidence, his Marsden¹ motion and motion for new trial were improperly denied, conviction for theft of and retaining the same stolen property was barred by statute, the court improperly instructed the jury on various issues, the cumulative effect of these errors prejudiced his case, and his custody credits were improperly calculated.

We find the trial court properly denied his Marsden motion and motion for new trial, as he failed to produce evidence that defense counsel performed ineffectively or that an irreconcilable breakdown arose in communications between counsel and client. Substantial evidence supported each of the convictions. The jury was properly instructed regarding the legal and factual issues at hand. The improper conviction for both theft and retention of the same property requires the reversal of his conviction for retaining the Lincoln. Error did not cumulatively affect his conviction. We will remand the matter to the trial court for reconsideration of the calculation of custody credits.

Statement Of The Case

An information charged the defendant with auto theft (Veh.Code, § 10851, subd. (a)), receiving or retaining the same stolen vehicle (Pen.Code, § 496),² and being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)). The information also alleged the defendant had served two prior prison terms (§ 667.5, subd. (b)). A jury found the defendant guilty of all charges and, in bifurcated proceedings, the court found true the allegations of priors.

The court denied the defendant's motion for a new trial, which alleged ineffective assistance of trial counsel, and sentenced him to a total prison term of six years.

Statement Of Facts

Police Officer Kelvin Pham found the defendant lying in the driver's seat of a Lincoln Town Car with the engine running. The defendant's behavior showed signs of PCP intoxication: he was unresponsive to questioning, drooled, stumbled, and required assistance to get out of the car. The Lincoln was parked in a strip mall a few blocks from the limousine company that had just reported the auto stolen. The fleet administrator, Judy Walton noticed two cars missing, including this Lincoln, approximately one week before its recovery by Officer Pham. The defendant had worked as a mechanic at the limousine company until approximately three weeks before Officer Pham's discovery of the vehicle.

Walton testified that keys to the autos were kept hanging from a board that was open to company employees, or occasionally were left in the autos themselves. The area housing the keys and autos was not secure, but a stranger would have trouble finding his way into the office where the keys were kept. Walton never saw any customers in this area.

Discussion

I. The Marsden motion was Properly Denied

Facts

Prior to trial, defense counsel sought and obtained a one-month continuance in order to complete her investigation of the case. On the day set for jury selection, the defendant complained to the court regarding his legal representation. The court construed this complaint as a Marsden motion and cleared the courtroom. The defendant explained he had asked counsel to call certain witnesses and she had refused to do so. Specifically, the defendant wanted to present expert evidence regarding the effects of drug use. The court asked trial counsel about her investigation of the case and interaction with the defendant. Counsel explained that she had met with the defendant, investigated his account, found the witnesses requested by the defendant to be unhelpful to his case, and discussed with the defendant why she did not want to present such evidence. Counsel stated she believed the police report and cross-examination of Officer Pham would suffice to address matters related to the defendant's ingestion of PCP. The court explained to the defendant that the prosecution's witness, Officer Pham, could be cross-examined by defense counsel about this subject.

The court then asked the defendant why he had not previously lodged his complaints about counsel. The defendant responded that he did not know how to do so. The trial court ruled that the motion was too late, and regardless of the timing, denied the motion on its merits.

Discussion

Every defendant has the right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) These constitutional rights entitle the defendant not just to "bare assistance" but rather to effective assistance. (People v. Jones (1991) 53 Cal.3d 1115, 1134, 282 Cal.Rptr. 465, 811 P.2d 757; see also Wood v. Georgia (1981) 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220; People v. Bonin (1989) 47 Cal.3d 808, 833, 254 Cal. Rptr. 298, 765 P.2d 460.) "`"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."'" (People v. Hart (1999) 20 Cal.4th 546, 603, 85 Cal. Rptr.2d 132, 976 P.2d 683; People v. Barnett (1998) 17 Cal.4th 1044, 1085, 74 Cal. Rptr.2d 121, 954 P.2d 384.)

Defendant concedes he is entitled to replacement counsel only if he has made a substantial showing that the first appointed attorney is not providing adequate representation, or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Hart, supra, 20 Cal.4th at p. 603, 85 Cal.Rptr.2d 132, 976 P.2d 683.) Denial of the motion is proper unless the defendant shows that a failure to replace the appointed attorney substantially impaired his right to assistance of counsel. (People v. Barnett, supra, 17 Cal.4th at p. 1085, 74 Cal.Rptr.2d 121, 954 P.2d 384.) The denial of a Marsden motion is reviewed for abuse of discretion. (People v. Berryman (1993) 6 Cal.4th 1048, 1070, 25 Cal.Rptr.2d 867, 864 P.2d 40, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 822-823, 72 Cal.Rptr.2d 656, 952 P.2d 673.)

Disagreement between a defendant and trial counsel regarding trial tactics does not necessarily show that counsel is performing ineffectively. (People v. Crandell (1988) 46 Cal.3d 833, 859-860, 251 Cal.Rptr. 227, 760 P.2d 423, abrogated on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 364-365, 121 Cal.Rptr.2d 580, 48 P.3d 1136.) Nor does such disagreement require the court to find the defendant's account to be more credible than that of defense counsel. (People v. Smith (1993) 6 Cal.4th 684, 696-697, 25 Cal.Rptr.2d 122, 863 P.2d 192.) Rather, a defendant must produce exculpatory or impeachment evidence showing a likelihood that he would have obtained a more favorable result had such information been presented to a jury. (People v. Bolin (1998) 18 Cal.4th 297, 334, 75 Cal.Rptr.2d 412, 956 P.2d 374.)

Here, the defendant does not elucidate any evidence that would have positively impacted his case had defense counsel called expert or percipient witnesses to explain the effects of PCP on the defendant. He asserts that "[h]ad the jury been presented with evidence that PCP prevented [defendant] from driving, or from having the specific intent to permanently deprive [the limousine company] of the car because he did not really know he was in the car, it is extremely likely this jury would not have been convinced of the truth of [defendant's] guilt beyond a reasonable doubt."

While evidence regarding the effects of PCP was relevant to the defendant's mental state at the time when he was found, its relevance as to his mental state for the period of at least a week in which the Lincoln was missing was negligible. The verdicts show that the jury believed the defendant was responsible for the theft of the Lincoln approximately a week before he was found in the auto. We thus find no potential for prejudice from the lack of expert or percipient witnesses to the defendant's intoxication.

II. The Verdicts were Supported by Substantial Evidence that the Defendant Stole the Lincoln and that his Ingestion of PCP was Willful

Defendant claims there was insufficient evidence to support the convictions, in that the evidence did not show that he took the Lincoln, knew it was stolen when he was found sitting in it, or ingested PCP willfully. We disagree.

On appeal "the court `must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence— that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, 48 Cal. Rptr.2d 135, 906 P.2d 1290, quoting People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738; People v. Kipp (2001) 26 Cal.4th 1100, 1128, 113 Cal.Rptr .2d 27, 33...