People v. Jensen CA2/7 ( 2022 )

Filed 2/28/22 P. v. Jensen CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303083
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA120724)
v.
RYAN PATRICK JENSEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Victor D. Martinez, Judge. Affirmed.
Sunnie L. Daniels, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Colleen M. Tiedemann and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
Ryan Patrick Jensen appeals the judgment entered after a
jury convicted him of two counts of second degree robbery (Pen.
Code, § 2111) and three counts of grand theft (§ 487, subd. (a).)
Jensen contends the trial court erred in denying his motion to
replace his appointed counsel under People v. Marsden (1970) 2
Cal.3d 118 (Marsden). Jensen also contends insufficient evidence
supported the jury’s verdict on one of his theft counts.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges
The District Attorney of Los Angeles County filed a seven-
count information charging Jensen with two counts of second
degree robbery (§ 211; counts 1, 4) and five counts of grand theft
(§ 487, subd. (a); counts 2, 3, 5, 6, 7). The charges stemmed from
five thefts at The Home Depot stores in Monrovia, Covina and
Glendora between March 15, 2019 and April 12, 2019. As to all
seven counts, the information included special allegations that
Jensen had served a prior prison term for a felony conviction
within five years of his current charges (§ 667.5, subd. (b)) and
that he had been convicted of two prior felonies, rendering him
ineligible for probation (§ 1203, subd. (e)(4)).
Jensen pleaded not guilty and denied the special
allegations.
B. The Marsden Motion
Fifty days before trial, Jensen asked to replace his
appointed attorney. The trial court held an in camera hearing
1 Undesignated statutory references are to the Penal Code.
2
and denied Jensen’s Marsden motion, as discussed in detail
below.
The day before trial, the court asked Jensen if he would
like to make another Marsden motion. After conferring with
defense counsel, Jensen replied, “No. That’s fine.”
C. The Jury Trial
The prosecution submitted clips from surveillance videos of
all five incidents, which the trial court admitted into evidence.
The parties stipulated that the person in the videos was Jensen.
In addition, the prosecution presented three witnesses: Michelle
Ramos, David Castaneda and Jesus Sanchez. Jensen did not
present any witnesses or submit additional evidence.
1. March 15, 2019 (counts 4 and 5)
Ramos, a cashier at The Home Depot store in Monrovia,
testified about the March 15 robbery and theft. After seeing
Jensen leave the store without paying for merchandise in his
cart, Ramos asked Jensen for a receipt. Jensen reacted
“[a]ggressive[ly]” and told her to “get the fuck away from him.”
Jensen put his hand in his pocket, which scared Ramos because
she did not know whether he had a weapon. Sanchez, an asset
protection specialist at The Home Depot store in Monrovia,
reviewed the surveillance footage. In the video, Jensen ran out of
the store with a shopping cart and put the merchandise into a
green sedan. The value of the stolen merchandise, which
included power tools, was $1,375.
2. March 17, 2019 (count 3)
Sanchez testified about the March 17 theft at The Home
Depot store in Covina. Sanchez reviewed the surveillance
3
footage. In the video, Jensen ran out of the store with a shopping
cart without paying for the merchandise in it. Jensen went to a
green sedan. The value of the stolen merchandise, which
included power tools, was $1,000.
3. March 18, 2019 (count 1 and 2)
Castaneda, a member of the loss prevention department at
The Home Depot store in Glendora, testified about the robbery
and theft on March 18. After Jensen left the store through the
garden department with a cart full of merchandise without
paying for it, Castaneda ran after him. Jensen had a trash can, a
rug and power tools. When Castaneda approached Jensen,
Jensen reached into his pants pocket, and Castaneda backed off
because he felt “unsafe” and believed he “was in danger of being
probably stabbed.” Jensen grabbed some of the merchandise and
got into a green sedan. The value of the stolen merchandise was
$1,078.
4. March 26, 2019 (count 6)
Sanchez reviewed the surveillance footage and testified
about the March 26 theft at The Home Depot store in Monrovia,
as discussed in detail below.
5. April 2, 2019 (count 7)
Sanchez testified about the April 2 theft at The Home
Depot store in Monrovia. Sanchez reviewed the surveillance
footage. In the video, Jensen left through the garden department
without paying for products. Power tools and other items were
concealed in a trash can. Once outside, Jensen placed the goods
in a green sedan, the same vehicle in the surveillance footage of
4
the prior incidents. The value of the stolen merchandise was
$2,073.97.
6. Jury verdict and admission of prior allegation
A jury convicted Jensen of two counts of second degree
robbery (§ 211; counts 1 and 4) and three counts of grand theft
(§ 487, subd. (a); counts 3, 6 and 7).2
Jensen admitted the truth of the prior prison term
allegation (§ 667.5, subd. (b)).
D. The Sentencing
The trial court sentenced Jensen to a total of six years in
state prison, comprised of a three-year middle term on count 1,
one-third of the middle term on count 4 (i.e., one year), and one-
third of the middle term of two years each on counts 3, 6 and 7
(i.e., eight months each, totaling two years). The court struck the
prior prison term enhancement. The court ordered Jensen to pay
$280 in court operation assessments and $210 in conviction
assessments. The court also sentenced Jensen to eight months
for the felony offense for which Jensen had violated probation, to
run consecutive to the sentence in this case.
As the Attorney General points out, the trial court erred in
the assessment amounts. Subdivision (a)(1) of section 1465.8
mandates that an assessment of $40 be imposed “on every
conviction for a criminal offense,” and subdivision (a)(1) of
Government Code section 70373 similarly mandates that an
assessment of $30 be imposed “for each misdemeanor or felony.”
Since Jensen was convicted of five offenses (and not seven
2 Counts 2 and 5 were lesser crimes of the crimes charged in
counts 1 and 4 respectively and were dismissed.
5
offenses), the correct amount of court operations assessments is
$200, not $280, and the correct amount of conviction assessments
is $150, not $210. But because the minute order and abstract of
judgment state the correct amounts, no modification of the
judgment is necessary.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion by Denying
Jensen’s Marsden Motion
Jensen argues the trial court erred by denying his Marsden
motion to replace his appointed counsel because he and counsel
were “embroiled in an irreconcilable conflict,” including “their
total inability to have meaningful communication with each
other.” Jensen further argues the denial of his motion prejudiced
him and violated his Sixth Amendment right to counsel.
We disagree.
1. Relevant proceedings
Fifty days before trial, Jensen moved to replace his
appointed attorney. The trial court held an in camera hearing
under Marsden, supra, 2 Cal.3d 118.
Defendant’s appointed counsel explained Jensen had four
theft-related cases pending before the court, including this case
and a felony case for which Jensen was on probation. 3 Counsel
described the history of plea offers from the district attorney.
Counsel said she made her first appearance in the case on June
17, 2019. At that time, the district attorney had offered “a plea to
3 According to an August 13, 2019 minute order, the four
cases were the instant case and cases 9PC02382, KA116263 and
KA117969.
6
three counts, including one strike, including all the probation
violations, for three years.” Jensen “indicated he needed time to
think,” so counsel continued the case and requested on the record
that the offer be held open. But the offer was not held open. On
July 2, the district attorney offered a two-year prison sentence for
a plea to “all counts, which includes multiple strikes.”4 The
district attorney also indicated he would ask the court to impose
a sentence of three years eight months for the felony offense for
which Jensen was on probation.5 Again, Jensen “indicated he
needed time to think.”
Defense counsel explained Jensen “basically quizze[d]” her
about her investigation of his case whenever they were in court.
She provided Jensen with all the notes from the case. She told
him many times that the main issues in the case were that
Jensen violated his probation and that two of the victims testified
at the preliminary hearing that they were afraid, which
supported the robbery counts.
Defense counsel said Jensen indicated to her that she was
rude, that she did not talk to him, that she told him he did not
understand anything, and that she did not do anything for him.
But according to counsel, “There’s no other way that I can explain
it to him.” She explained that even if Jensen prevailed at trial, in
this case, the court could impose a three-year eight-month prison
4 An August 13, 2019 minute order states that Jensen
rejected “the People’s early disposition offer of 2 years state
prison total in this matter and case numbers 9PC02382,
KA116263 and KA117969.”
5 In case KA116263, Jensen was on probation for a felony
conviction for driving or taking a vehicle without the consent of
the owner. (Veh. Code, § 10851, subd. (a).)
7
sentence for the felony offense for which Jensen was on
probation. And if Jensen lost at trial, he could receive a sentence,
“which is upward to about nine years” in this case and which
could run consecutively to the prison sentence in the probation
case.
Jensen acknowledged that for the first plea offer, “I did ask
for more time and . . . to think about it.” But that offer was off
the table, and “I understand that that’s my fault.” Jensen
complained that defense counsel gave him “no time to talk, ask
her any types of questions about the deal, what’s going on,
because I wanted to take it to trial, I was not comfortable with
the deal.” Jensen explained, “I’m not a violent person. I don’t
feel like this is a robbery. It was a theft. I’ll do the time. It’s not
a robbery. I’m not a violent person. I have no violence in my
record, nothing.” Jensen also explained defense counsel
“basically threw the deal in my face, called me stupid, told my
family in court that I need to take a deal and go bye.” Jensen
also said that he “get[s] frustrated” and “a little mad because she
don’t [sic] let me talk,” and “[s]he snaps and walks out.” Jensen
concluded, “So I mean, I’m not saying she’s a bad lawyer. It’s just
I can’t get through to her.”
Defense counsel said she had been a criminal defense
attorney for 31 years. Jensen started to speak, but counsel
continued. She explained she had not had any arguments with
Jensen “because he’s generally very polite to me, where his
mother jumps up in my face every time I see her.” Counsel told
Jensen’s mother that she would not speak to her again and that
“[f]or [Jensen] to say I told his mother he needs to go bye is
hilarious.” Counsel said Jensen’s “delays caused the offer to get
8
worse,” and she could not do anything about that, but she would
proceed according to Jensen’s wishes.
Jensen responded, “Correct,” and said he understood
sentencing on the violation of probation was out of defense
counsel’s control.
Defense counsel said, “all he has to do is tell me would he
like a trial or would he like to accept the plea.” Counsel said if
Jensen wanted to go to trial, “that’s fine. I can do it. No
problem.” But the core issue was Jensen could not make up his
mind whether he wanted to accept a plea deal or go to trial.
Jensen repeated he “never said you’re a bad lawyer” but
felt his counsel was not “trying to fight my case or have any
competence of me winning my case.”
The court asked Jensen, “What do you want her to do?”
Jensen responded, “Set for trial.”
Defense counsel asked the court to explain to Jensen his
exposure on the felony underlying his probation. The court said
Jensen faced a prison sentence of three years eight months for
the felony in his probation case and “maybe up to 13 years”
prison if he was acquitted of the robbery charges but convicted of
the remaining counts in this case. Jensen reiterated his belief
that the incidents were not robberies. The court asked Jensen if
he would be okay with a 13-year sentence, and Jensen responded,
“No.” The court observed, “Well, you see, I think that’s the
dilemma [defense counsel] is in.” The court went over Jensen’s
exposure again, asking Jensen to consider what sentence length
he might receive if convicted by a jury.
The court asked Jensen, “What do you expect [defense
counsel] to do? Has she told you can’t have your trial?” Jensen
responded, “No.” The court asked Jensen, “All right. She says
9
she was going to take a dive if you were going to trial?” Jensen
again responded no. The court asked Jensen, “Then what is it
that’s the problem?” Jensen started to speak, but the court
interrupted to confirm that defense counsel had explained the
options to Jensen. The court asked again, “So what’s the
problem? Your perceived inappropriateness of her delivery?
What about your mom? Did she have her two cents in also?”
Jensen nodded yes. The court asked, “Do you think [your mother
is] helping the cause?” Jensen shook his head to indicate no. The
court asked if there was anything else Jensen wanted to say, and
he responded no.
Defense counsel reiterated that she and Jensen “have had
no problems,” that Jensen was “extremely polite and respectful,”
and that she thought he was “a nice guy.” She repeated her
concern that at the preliminary hearing, the two victims had
testified to their fear during the incidents, so “I don’t know what
you’re thinking is going to happen at trial” because “[i]f they were
fearful, we’re going to eat the robberies. I hate for you to get
nine, 12 years for no reason.” She concluded, “But I will do the
trial for you. No problem. And I’ll do my best. [ ] I apologize if I
hurt your feelings. But this is how I talk to my clients, because
it’s serious and we’re in trouble here, because of your exposure,
not because I’m not a good lawyer. What do you want to do?”
Jensen replied, “I just don’t understand. Like if -- ” and
defense counsel interrupted, instructing Jensen, “Tell the court
what you don’t understand because I can’t explain it to you any
other way.” Jensen said, “It’s that you never reviewed my case.
You never told me what was wrong -- .” Counsel interrupted
again, explaining that she had told Jensen everything she had
done to prepare for the case, including reviewing the case file, the
10
surveillance videos, the photographs, the police reports and the
preliminary hearing transcript, that she was ready to go to trial,
and that Jensen needed to choose how he wanted to proceed.
The court denied the motion.
2. Applicable law and standard of review
“Under both the Sixth Amendment to the United States
Constitution and article I, section 15, of the California
Constitution, a criminal defendant has the right to the assistance
of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215; accord,
McCoy v. Louisiana (2018) 584 __ U.S. __ [138 S.Ct. 1500, 1507].)
“[T]he Sixth Amendment right to effective representation
virtually compels a hearing and an order granting a motion for
substitution of counsel when ‘there is a sufficient showing that
the defendant’s right to the assistance of counsel would be
substantially impaired if [the defendant’s] request was denied.’”
(People v. Stankewitz (1990) 51 Cal.3d 72, 87–88.)
“‘It is the very nature of a Marsden motion . . . that the trial
court must determine whether counsel has been providing
competent representation. Whenever the motion is made, the
inquiry is forward-looking in the sense that counsel would be
substituted in order to provide effective assistance in the future.
But the decision must always be based on what has happened in
the past.’” (People v. Sanchez (2011) 53 Cal.4th 80, 88.)
“‘“A defendant is entitled to relief if the record clearly
shows that the appointed counsel 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.”’ [Citation.] ‘A trial court
should grant a defendant’s Marsden motion only when the
defendant has made “a substantial showing that failure to order
11
substitution is likely to result in constitutionally inadequate
representation.”’” (People v. Streeter (2012) 54 Cal.4th 205, 230;
accord, People v. Loya (2016) 1 Cal.App.5th 932, 945.)
“‘We review the denial of a Marsden motion for abuse of
discretion.’ [Citation.] ‘Denial is not an abuse of discretion
“unless the defendant has shown that a failure to replace counsel
would substantially impair the defendant’s right to assistance of
counsel.”’” (People v. Streeter, supra, 54 Cal.4th at p. 230; accord,
People v. Loya, supra, 1 Cal.App.5th at p. 944.)
3. Jensen failed to show he and his counsel were
embroiled in an irreconcilable conflict
At the Marsden hearing, Jensen did not express the
existence of an irreconcilable conflict with defense counsel. In
fact, Jensen acknowledged that his counsel was not a “bad
lawyer” and that she told him his options. According to counsel,
they had no problems getting along.
Jensen’s primary grievances were that he felt unheard by
and unable to ask questions6 about his case to his defense counsel
and that he believed counsel was not fighting hard enough for
him.
However, standing alone, a defendant’s subjective feelings
about his counsel cannot support granting a Marsden motion.
This is because “the way in which one relates with his attorney[ ]
does not sufficiently establish incompetence.” (People v. Silva
(1988) 45 Cal.3d 604, 622; accord, People v. Cole (2004) 33 Cal.4th
1158, 1192.) ‘“[I]f a defendant’s claimed lack of trust in, or
6 Specifically, defense counsel walked away when Jensen
tried to talk to her, and counsel ignored Jensen when he
announced he wanted to proceed to trial.
12
inability to get along with, an appointed attorney were sufficient
to compel appointment of substitute counsel, defendants
effectively would have a veto power over any appointment and by
a process of elimination could obtain appointment of their
preferred attorneys, which is certainly not the law.”’” (People v.
Michaels (2002) 28 Cal.4th 486, 523.)
Further, Jensen’s belief about defense counsel’s “purported
inadequate investigation, trial preparation, and trial strategy
were essentially tactical disagreements, which do not by
themselves constitute an ‘irreconcilable conflict.’” (People v. Cole,
supra, 33 Cal.4th at p. 1192; accord, People v. Welch (1999) 20
Cal.4th 701, 728–729.) Despite counsel’s concern that the
outcome of a trial could result in a longer sentence than the
proposed plea deal, counsel said she was prepared to go to trial if
Jensen wished to do so, and she assured Jensen and the court
that she would “do her best.” (See People v. Valdez (2004) 32
Cal.4th 73, 95-96 [no abuse of discretion in denying Marsden
motion “[a]lthough counsel did not agree with all of defendant’s
suggestions, he maintained that he was prepared to go to trial
and would be able to work with defendant to address his
concerns”].) She had explained to Jensen everything she had
done to prepare. To the extent there was any credibility conflict
between Jensen and his counsel, the court was entitled to credit
defense counsel’s representations. (See People v. Orey (2021) 63
Cal.App.5th 529, 569; accord, People v. Myles (2012) 53 Cal.4th
1181, 1207-1208.)
13
B. Substantial Evidence Supported the Jury’s Verdict on
Count 6
Jensen contends insufficient evidence supported the jury’s
finding that he failed to pay for the merchandise he was charged
with stealing from The Home Depot on March 26, 2019.
We disagree.
1. Relevant proceedings
Sanchez, an asset protection specialist for The Home Depot,
was at the Monrovia store on March 26, 2019. He was dealing
with an unrelated incident when he was notified of a theft, which
prompted him to review surveillance footage.
At trial, the prosecution presented seven clips from
surveillance videos. Sanchez described the locations around the
store depicted in the clips. In one video, Jensen entered the store
with an empty cart and placed merchandise in the cart. The
items in the cart included six boxes containing power tools. A rug
covered the merchandise at one point, which Sanchez believed
was an attempt to “conceal [the merchandise] from view.” At
“garden exit no. 2,” which has “p[oints] o[f] s[ale],” Jensen
entered the frame with a trash can in his cart in addition to the
boxes of power tools. Next, Jensen was “running out of the
garden exit with power tools.” Finally, in an “exterior garden
shot showing the exit of the garden into the parking lot,” a man
drove up to Jensen.7 Jensen loaded the trash can, which
7 Sanchez did not expressly testify about the make, model
and color of the vehicle in connection with the March 26 incident
but later testified a green sedan was seen picking up the
merchandise in the incidents depicted in the surveillance footage
he reviewed.
14
contained the boxes of power tools, into the vehicle, the man
stepped out of the driver’s seat, and Jensen got into the driver’s
seat. Jensen and the man drove away from the store.
Sanchez identified the six items taken and testified their
total value was $2,371. Jensen’s counsel did not cross-examine
Sanchez.
2. Applicable law and standard of review
Theft of personal property valued at more than $950
constitutes the felony of grand theft. (§487, subd. (a).) Section
484, subd. (a) defines “theft” as “[e]very person who shall
feloniously steal, take, carry, lead, or drive away the personal
property of another . . . .” Theft occurs when a person takes
possession of personal property belonging to another, without the
owner’s consent and with the intent to deprive the owner of
possession permanently. (See People v. Davis (1998) 19 Cal.4th
301, 305; accord, People v. Vidana (2016) 1 Cal.5th 632, 639.)
When sufficiency of the evidence is challenged on appeal,
we determine whether the record discloses substantial evidence
from which, considered as a whole, a reasonable trier of fact could
conclude that the crime was committed as charged. (See People
v. Truong (2017) 10 Cal.App.5th 551, 555-556 (Truong); accord,
People v. Maciel (2013) 57 Cal.4th 482, 514-515.) In making this
determination, we view the evidence in the light most favorable
to the judgment and presume every fact in support of the
judgment that the jury could have reasonably deduced from the
evidence. (See Truong, at p. 556.) Substantial evidence is
“evidence that is reasonable, credible and of solid value . . . .”
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard
applies to our review of circumstantial evidence. (See People v.
Ceja (1993) 4 Cal.4th 1134, 1138.)
15
“The focus of the substantial evidence test is on the whole
record of evidence presented to the trier of fact, rather than on
‘“isolated bits of evidence.”’” (People v. Cuevas (1995) 12 Cal.4th
252, 261.) The testimony of a single witness, if believed by the
finder of fact, can constitute sufficient evidence. (People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 885; accord, Truong, supra,
10 Cal.App.5th at p. 556 [“[U]nless [a witness’s] testimony is
physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.”].) When two
or more inferences can reasonably be deduced from the facts, we
do not substitute our deductions for those of the trier of fact. (See
People v. Garcia (2020) 46 Cal.App.5th 123, 144-145 [“We do not
reweigh the evidence or resolve conflicts in the testimony when
determining its legal sufficiency.”]; accord, People v. Ceja, supra,4 Cal.4th at p. 1139.)
3. Substantial evidence supported the jury’s finding that
Jensen stole merchandise
Because the surveillance footage does not have time
stamps, Jensen contends at some point, not on video, he could
have paid for his items at the cash register. Jensen also points
out Sanchez did not explicitly testify that Jensen failed to pay for
the merchandise. Finally, Jensen urges us to conclude the jury
improperly inferred he did not pay for the items based on the
evidence presented about other similar offenses.
However, the surveillance video coupled with Sanchez’s
testimony was credible and solid evidence from which the jury
could have reasonably deduced that Jensen did not pay for the
merchandise before leaving the store. Sanchez’s job was to
investigate thefts from the store. As he explained, in the
surveillance footage, Jensen could be seen concealing boxes of
16
power tools in his cart with a rug. The jury could have inferred
that Jensen hid the merchandise to steal it. (See People v.
Hooker (1967) 254 Cal.App.2d 878, 880, disapproved on another
ground in People v. Corey (1978) 21 Cal.3d 738, 746 [“His
objective in concealing merchandise was to steal it.”].) In
addition, the footage showed Jensen “running out of the garden
exit with the power tools.” The jury could have inferred Jensen’s
consciousness of guilt. (See, e.g., CALCRIM No. 372 [“If the
defendant fled or tried to flee immediately after the crime was
committed, that conduct may show that he or she was aware of
his or her guilt. [ ] However, evidence that the defendant fled or
tried to flee cannot prove guilt by itself.”]; People v. Tully (2012)
54 Cal.4th 952, 1024 [approving standard criminal jury
instructions that allow “any inference regarding guilt to be drawn
from the circumstances described by them . . . [including] flight . .
[as] permissive . . . [but] insufficient alone to prove guilt”]);
accord, People v. Scully (2021) 11 Cal.5th 542, 596.)
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DISPOSITION
The judgment is affirmed.
IBARRA, J.
We concur:
PERLUSS, P. J.
FEUER, J.

Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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