People v. Brown CA2/2 ( 2015 )

Filed 6/30/15 P. v. Brown CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B254939
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA091665)
v.
ORDER MODIFYING OPINION
CHRISTOPHER LEE BROWN,
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:*
It is ordered that the opinion filed herein on June 2, 2015, be modified as follows:
On page 11, the first sentence of the first full paragraph, the words “Judge
Dasher,” are deleted so the sentence now reads:
Thereafter, on March 3, 2014, before Judge Moses, defense counsel
informed the trial court that appellant had “made some remarks that I think
could be interpreted perhaps as a Marsden.”
There is no change in the judgment.
*
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
Filed 6/2/15 P. v. Brown CA2/2 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B254939
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA091665)
v.
CHRISTOPHER LEE BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Jared D.
Moses, Judge. Affirmed.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Christopher Lee Brown of two counts of second degree
commercial burglary (Pen. Code, § 459)1 (counts 1 & 2) and one count of receiving
stolen property (§ 496, subd. (a)) (count 3). In a bifurcated proceeding, the trial court
found appellant had suffered two prior convictions for which he served prison sentences
(§ 667.5, subd. (b)). The trial court sentenced appellant to county jail for a total term of
four years eight months, determined as follows: The midterm of two years for the
burglary in count 2, plus a consecutive eight months (one-third the midterm for count 1),
plus two years for the prior prison enhancements.2
Appellant contends the trial court (1) erred by instructing the jury with CALJIC
No. 2.15, (2) gave incorrect responses to two of the jury’s questions, and (3) failed to
properly investigate the basis of his Marsden3 claim. We disagree and affirm.
FACTS
The Office Campus
Appellant was a transient who frequently trespassed on an office campus located
in the City of Alhambra (the campus). The campus had numerous buildings that housed
multiple companies and government agencies. Rolando Valdovinos (Valdovinos), a
security guard at the campus, had contacts with appellant, had escorted appellant off the
campus, and had told appellant he was not allowed on the campus and not to come back.
One of the companies located at the campus was AHMC Healthcare (AHMC),
which had an office on the sixth floor of one of the buildings. AHMC provided billing
and reporting services for six regional hospitals. The company maintained the personal
data of approximately 700,000 patients of the hospitals. There were three main doors
leading into AHMC’s office, which were kept locked and could only be opened by
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
The sentence on count 3 was stayed pursuant to section 654.
3
People v. Marsden (1970) 2 Cal. 3d 118.
2
swiping an electronic badge. There were four security cameras on the sixth floor that
recorded movement.
AHMC’s office was closed to the public, and Saturdays were not normal working
days for employees. No nonemployees had permission to enter AHMC’s office on
October 12, 2013.
October 12, 2013—Count 24
On Saturday, October 12, 2013, around 10:30 a.m., Saul Chihchan Hsu (Hsu), a
financial analyst at AHMC, went to the office to print out some reports. He used his
badge to unlock one of the doors. No one else was there at the time. The office’s
security cameras recorded him leaving after about 15 minutes at 10:45 a.m. When he left
the office, Hsu made sure the door locked behind him. He only checked the door that he
used.
Around 11:10 a.m., AHMC’s security cameras recorded appellant entering the
office through a different door than the one Hsu had used. Appellant was wearing a
black hooded sweatshirt with a blue skull on the backside. The hood was pulled up. The
security cameras recorded appellant walking around the floor, through cubicles, and
trying to open locked interior office doors.5 Appellant then walked to an area not covered
by the security cameras. Hsu and Peter Zhou (Zhou), another financial analyst at AHMC,
had their workspace cubicles located in this area. Appellant was later recorded carrying
what appeared to be a bag out of the office.
When Zhou came to work on Monday, October 14, 2013, he discovered that his
laptop computer was missing from the desk in his cubicle. A second laptop belonging to
the coworker who sat next to him was also missing. A flash drive used by Zhou was also
gone. He last saw the flash drive the previous Friday, October 11, 2013. The flash drive
contained information pertaining to patients at the various hospitals. The flash drive had
4
The charging information did not list the burglaries in chronological order.
5
Portions of the security recordings were played for the jury, and still photographs
were made from the recordings and used as evidence.
3
Excel files that had been deleted, but were recoverable. The laptops contained personal
information of the approximately 700,000 patients. Zhou’s computer was password
protected, but it could be overridden by someone with a technological background.
When Hsu arrived at work on Monday morning, he noticed that his desk drawer
was slightly open and a flash drive was missing from the drawer. Hsu last saw the flash
drive on the previous Friday. He used the drive to transfer data from his laptop to a
desktop computer. The drive contained some of his personal information and data files
pertaining to AHMC. A camera was also missing. The police were contacted.
It was discovered that someone had shoved tissue paper into one of the locks of an
entry door, which kept the door from automatically locking. This was the same door
used by appellant to enter the office.
As a result of the security breach, AHMC mailed letters to all of the approximately
700,000 patients impacted by the breach. For a number of the patients, the company had
to provide identity theft monitoring services.
October 23, 2013—Count 3
Alhambra Police Department Detective Katie Ng was assigned to investigate the
thefts at AHMC. The crime raised considerable concern because it involved the personal
information of approximately 700,000 patients. Appellant was identified as a suspect
from the security recordings.
On October 23, 2013, Alhambra Police Corporal Timothy Diller responded to a
location in Los Angeles that was frequented by appellant and where other officers were
already looking for appellant. Appellant came out from behind a building and told the
officers his name. He was wearing the same hooded sweatshirt he was seen wearing on
the security cameras at AHMC. Appellant was arrested and taken into custody. The
flash drive belonging to Hsu was found in the right front pocket of appellant’s pants.
Appellant was also carrying a black duffle bag. Inside the bag, Corporal Diller found the
flash drive taken from Zhou’s desk. Another flash drive not related to AHMC was also
inside the bag.
4
After appellant was arrested, Detective Ng spoke with him. Appellant waived his
rights under Miranda v. Arizona (1966) 384 U.S. 436. Appellant stated that he often
went to the campus to look for cigarettes or to take a shower.6 He said that the doors to
the facility were often left unlocked. Appellant admitted being at the location on
October 12, 2013, but he denied taking any laptops, and said he found the flash drives on
the ground. The detective showed appellant a still frame from the security recording.
Appellant admitted that it was a picture of him. Appellant said he was carrying a bag of
groceries and a shirt.
Alhambra Police Department Detective Minh Lee, assigned to the High-Tech
Crimes Unit, examined the contents of the flash drives. Officer Lee estimated there were
thousands of files relating to personal identifying information on the drives. He
explained that the information could be accessed even if password protected, which was
not the case here. He also testified that individual profiles relating to stolen personal
identification information sell on the black market for between $20 and $40 each.
December 3, 2013—Count 1
On December 3, 2013, around 11:30 a.m., security officer Valdovinos received a
call that a suspicious person was on AHMC’s floor. Valdovinos went to the building and
walked through all of the floors. He eventually saw appellant on the ground floor
pushing a wheeled office desk chair out of the building. The chair held a light fixture and
books. The chair was taken from an area on the first floor where salvaged equipment was
stored. The chair was the property of the County of Los Angeles, which had offices in
the building. Valdovinos asked appellant what he was doing with the items. Appellant
stated he was taking items that were given to him. Valdovinos confirmed with the
facilities manager for the Los Angeles County Public Health Substance Abuse Program,
located in the building, that appellant did not have permission to take the property.
6
AHMC’s office did not have a shower.
5
Valdovinos called the police. He then followed appellant and watched him push
the chair off the campus and down the street. Valdovinos also took several photographs
with his cell phone of appellant moving the property. Appellant was arrested.
DISCUSSION
I. CALJIC No. 2.15
Appellant contends the trial court erred by instructing the jury with CALJIC
No. 2.15,7 because the instruction allowed the jury to presume appellant’s guilt of
burglary based on slight corroborating evidence rather than forcing the prosecutor to
prove beyond a reasonable doubt that appellant had the intent to steal at the times he
entered the building.
Our Supreme Court has rejected this argument. In People v. Johnson (1993) 6
Cal. 4th 1, 37 the court stated: “Defendant asserts that CALJIC No. 2.15 created an
improper presumption of burglary arising from the mere fact of possession of stolen
property. But the instruction does not so state. Indeed, it relates a contrary proposition:
a burglary may not be presumed from mere possession unless the commission of the
offense is corroborated. . . . Thus, contrary to defendant’s assumption, CALJIC No. 2.15
did not remove the issue of intent from the jury’s consideration.” (See also People v.
McFarland (1962) 58 Cal. 2d 748, 754 [“Possession of recently stolen property is so
incriminating that to warrant conviction there need only be, in addition to possession,
slight corroboration in the form of statements or conduct of the defendant tending to
show his guilt”].)
7
The jury was instructed with CALJIC No. 2.15 as follows: “If you find that a
defendant was in conscious possession of recently stolen property, the fact of that
possession is not by itself sufficient to permit an inference that the defendant is guilty of
the crime of burglary. Before guilt may be inferred, there must be corroborating evidence
tending to prove defendant’s guilt. However, this corroborating evidence need only be
slight, and need not by itself be sufficient to warrant an inference of guilt.
“As corroboration, you may consider the attributes of possession—time, place and
manner, that the defendant had an opportunity to commit the crime charged, the
defendant’s conduct, his false or contradictory statements, if any, and any other evidence
which tends to connect the defendant with the crime charged.”
6
Moreover, the trial court also instructed the jury to “[c]onsider the instructions as a
whole and each in light of all the others.” The jury was instructed on the requirement that
the People must prove appellant guilty beyond a reasonable doubt. The court further
instructed the jury on the elements of burglary including that “[a]t the time of the entry,
that person had the specific intent to steal and take away someone else’s property, and
intended to deprive the owner permanently of that property.” Instructions are not
considered in isolation. The ultimate question whether appellant possessed the requisite
preexisting intent to steal was “left to the jury through the usual instructions regarding the
elements of that offense.” (People v. Johnson, supra, 6 Cal.4th at p. 37.)
Finally, contrary to appellant’s argument, corroborating evidence of intent to steal
existed on both occasions. Appellant regularly frequented the building and had been told
not to return. The jury could reasonably infer that appellant knew AHMC’s office was
vacant on the weekends and that he could enter the premises alone. AHMC’s office was
on the sixth floor of the building and had doors that locked automatically. The jury could
also reasonably infer that appellant’s frequent trespassing gave him the opportunity to
block the door from locking so that he could return later when the office was empty. It
defies logic and common sense to assume that appellant just happened upon a door on the
sixth floor that had its locking mechanism blocked by a wadded tissue.
After the AHMC thefts, appellant was arrested and interviewed by the police. As
the People note, this would have made it unmistakably clear that appellant was not to
return to the campus. Nevertheless, on December 3, 2013, he returned, entered the same
building, and took an office desk chair and other items from a more readily accessible
area. The jury could reasonably infer that appellant trespassed through familiar territory
with the intent to enter the building for the purpose of stealing property. (See People v.
Yeoman (2003) 31 Cal. 4th 93, 131 [permissive inference violates due process only if the
suggested conclusion is not one that reason and common sense justify in light of the
proven facts before the jury].)
7
II. Reponses to Jury’s Questions
During deliberations, the jury submitted several questions to the trial court.
Appellant contends that the court committed error in response to two questions pertaining
to CALJIC No. 2.15.
The jury asked the following questions:
“1) We need clarification on the language in [CALJIC No.] 2.15. What does
‘However, this corroborating evidence need only be slight’ refer to?
“2) Can we take into consideration the defendant’s mental state or condition?”
(Underlining in original.)
After consultation with the attorneys,8 the trial court responded as follows:
“1. The language in Jury Instruction 2.15 speaks for itself. 2. You can consider any
evidence that was presented at trial. Do not speculate about things outside the evidence.”
As our Supreme Court explained in People v. Beardslee (1991) 53 Cal. 3d 68, 97:
“The court has a primary duty to help the jury understand the legal principles it is asked
to apply. [Citation.] This does not mean the court must always elaborate on the standard
instructions. Where the original instructions are themselves full and complete, the court
has discretion under section 1138 to determine what additional explanations are sufficient
to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging
from the standard are often risky. [Citation.]” An appellate court reviews “‘for an abuse
of discretion any error under section 1138. [Citation.]’”9 (People v. Hodges (2013) 213
Cal. App. 4th 531, 539.)
8
The court’s minute order indicates that it consulted with the attorneys before
responding, but there is no reporter’s transcript of the discussion.
9
Section 1138 states: “After the jury have retired for deliberation, if there be any
disagreement between them as to the testimony, or if they desire to be informed on any
point of law arising in the case, they must require the officer to conduct them into court.
Upon being brought into court, the information required must be given in the presence of,
or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they
have been called.”
8
As to the first question, appellant argues that by referring the jury back to the
language of CALJIC No. 2.15, the trial court failed to fulfill its duty to assist the jury.
Specifically, appellant argues “the trial court’s answer to the jury’s question should have
clarified it could not use ‘slight’ evidence to decide the critical issue of when Mr. Brown
formed any possible intent to steal. The trial court should have clarified that . . . the only
fact the jury could infer from finding conscious possession of stolen property was
Mr. Brown’s identity and whether he had the intent to steal, not the timing of any
formation of the intent to steal.”
But the jury’s question does not indicate that it was struggling with the issue of
when appellant formed the intent to steal. The question makes no mention of this issue.
Thus, appellant’s argument is misplaced. The jury merely asked what “slight”
corroboration referred to. As the People note, the subject of the jury’s inquiry did not
have a special legal meaning that differed from its common meaning. Moreover, the
instruction itself gave examples of what the jury could consider as corroboration. For the
trial court to give more examples would have been improper. We find no error in the trial
court’s response.
As to the second question, appellant argues the trial court erred by not instructing
the jury that it was obliged “to consider his mental state to determine whether he had the
intent to steal at the time of entry for counts 1 and 2. Telling the jury it could only
consider the evidence at trial, failed to answer its specific question about whether it could
consider the defendant’s mental state.” But the jury was specifically instructed with
CALJIC No. 14.50 that in order to find appellant guilty of burglary, the jury had to find
that “[a]t the time of the entry, [appellant] had the specific intent to steal . . . .” Indeed,
whether appellant harbored the requisite specific intent was the focus of the defense
counsel’s argument and the prosecutor’s rebuttal argument to the jury. Thus, there was
no need for the trial court to further explain to the jury that it had to find the element of
intent to steal.
We agree with the People that the jury’s question more likely referred to any
perceived mental or psychological condition affecting appellant. The jury heard
9
testimony from security guard Valdovinos that he once was asked to escort appellant off
the campus because appellant was “acting irrational.” The People also point out that just
prior to the jury’s verdicts being announced, the trial court admonished appellant not to
display emotional outbursts. While the court made the admonishment outside the jury’s
presence, the court did say that it had seen appellant “get emotional sometimes.”
In any event, we find no error in the trial court’s response.
III. Marsden Claim
Appellant contends the trial court inadequately inquired as to the basis of his
request for a new attorney; therefore the matter should be remanded for a new hearing.
A. Background
On February 20, 2014, before Judge Beason, appellant complained that his
appointed attorney would not provide him copies of the discovery and a transcript of the
preliminary hearing. Defense counsel explained that budgetary restrictions did not allow
him to make such copies. As an alternative, defense counsel suggested that appellant
review the discovery during jury voir dire and take notes. Appellant found this solution
unacceptable because he had “A.D.D.” and it would take him a while to read the material.
The court noted that defendants were not provided transcripts as a matter of course unless
they paid for the court reporter to prepare a new copy. Appellant stated that he needed to
read the various reports to ensure that he was “being represented fairly.” He also stated:
“I had the A.C.L.U. involved with my case before and the F.B.I. I know I’m bringing
outside issues, but these are things that I need to make sure that I’m stating for myself to
feel like I’m protected because I don’t always feel protected.”
Defense counsel then stated: “As I’ve explained to Mr. Brown, I’m his attorney.
I’m well-versed in every single aspect of the case. I have read the reports. When I
announce ready for trial, I will be fully prepared. I’m his mouthpiece. I’m his brain. In
other words, when we’re in court, he has to sit down. If he wishes to testify, that will be
his right. But other than that, I’m the one who does all the work. He basically just sits
back and makes sure that he stays awake.”
10
Thereafter, on March 3, 2014, before Judge Dasher, defense counsel informed the
trial court that appellant had “made some remarks that I think could be interpreted
perhaps as a Marsden.” When asked if he was requesting a new attorney, appellant
replied, “I’m not sure.” Out of an abundance of caution, the court then conducted a
closed Marsden hearing.
At the hearing, appellant complained that he had not been able to read the
discovery reports. He also complained that his attorney was “kind of stand-offish,” and
appellant wanted “like a little bit of a doctor’s manner” from his attorney. He stated that
his attorney was a “nice man” and that he was “not talking against him or trying to offend
him in any way,” just that he wanted “to be assured” that he had an attorney who was
able to represent him. Appellant worried that a “state appointed public defender
. . . may possibly be, you know, not having my best interest at heart.” Appellant stated
there were “outside issues” that he “never really [got] to discuss openly” with his
attorney, and that he kept getting put into “suppressive” living situations where his rights
to free speech and free press were impeded. Appellant discussed being twice attacked by
deputies in the jail and interviewed by the F.B.I. and A.C.L.U. Appellant alluded to
problems in the sheriff’s department and stated that he had been “harassed” and “didn’t
want to testify for the FBI.” He complained that “they keep putting me on mental health
floors and imputing [sic] my integrity on the certain issues that are happening.”
Appellant further stated: “I am a prominent actor and musician. And I wouldn’t say
prominent, like, you know, famous. But I have a film degree from San Diego State—or
Cal State Los Angeles. I went to San Diego State University, played foo[t]ball there,
[and] was in ROTC. [¶] And a lot of things have happened between the DEA and the
FBI and the Sheriff[’]s Department. [¶] . . . [¶] And so the collection of all these things,
documented cases, you know, like, in the newspaper and at the county jail, these things, I
just am really uncomfortable using a state-appointed attorney, whereas I still can’t afford
my own attorney.” Appellant wanted “a conflict of interest attorney” or “possibly a
private attorney.” Appellant then stated that he had been a witness to some “pretty
violent” incidents at the jail.
11
At that point, the trial court stopped appellant and after making certain his attorney
was not declaring a conflict, reassured appellant that his appointed attorney was
experienced, had been a lawyer for more than 30 years, and had tried hundreds of serious
felony cases. The court explained, “I can say [defense counsel] has been in my
courtroom many times and he is constantly a professional, he is a gentleman, and he
fights very hard for his clients.” Noting that appellant’s request was made on the last day
for trial to begin and a jury had been ordered, the court denied the motion as untimely.
The court stated that even if it were timely, he would deny it because none of appellant’s
stated reasons for wanting a new attorney justified relieving his defense counsel.
B. Applicable Law
Our Supreme Court has explained: “‘“‘“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. [Citation.] A
defendant is entitled to relief if the record clearly shows that the first appointed attorney
is not providing adequate representation [citation] or that defendant and counsel have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.’” [Citation.] The decision whether to grant a requested substitution is
within the discretion of the trial court; appellate courts will not find an abuse of that
discretion unless the failure to remove appointed counsel and appoint replacement
counsel would ‘substantially impair’ the defendant’s right to effective assistance of
counsel.”’” (People v. Vines (2011) 51 Cal. 4th 830, 878.)
A Marsden hearing is an informal proceeding “in which the court ascertains the
nature of the defendant’s allegations regarding the defects in counsel’s representation and
decides whether the allegations have sufficient substance to warrant counsel’s
replacement.” (People v. Gutierrez (2009) 45 Cal. 4th 789, 803.) A trial court fulfills its
inquiry obligation if it gives the defendant an opportunity to state all of his or her
complaints and listens to the complaints. (People v. Vera (2004) 122 Cal. App. 4th 970,
12
979; People v. Williamson (1985) 172 Cal. App. 3d 737, 745; People v. Penrod (1980) 112
Cal. App. 3d 738, 745.)
C. Analysis
Appellant contends the trial court conducted an inadequate inquiry at the Marsden
hearing. He complains that the court did not inquire of his attorney whether he had
received copies of the discovery. But appellant had already stated that he had not, and
the issue had been addressed before another judge. Appellant also complains that the
court did not follow up on what “outside issues” he wanted to discuss with his attorney.
But appellant identified these issues at the hearing. Finally, appellant complains that
because the trial court interrupted him when he was stating he had witnessed some
violent incidents at the county jail, it is “impossible” to know whether he had catalogued
all his complaints. But at this point, appellant was not speaking directly about his
attorney; he was discussing issues at the jail.
Contrary to appellant’s claim, we find the trial court fulfilled its inquiry obligation
in this case. The trial court conducted the closed hearing even though appellant initially
stated that he was not certain he wanted a new attorney. The court then allowed appellant
to speak for a considerable amount of time (taking up four pages of the reporter’s
transcript) to convey his concerns to the court. Essentially, appellant indicated he was
aware of, and possibly involved with, the well-publicized reports of deputy misconduct at
the Los Angeles County jail that had been the focus of a F.B.I. investigation, and that he
believed a “state appointed public defender” would have a conflict of interest. Aside
from complaining that his appointed attorney was “stand-offish,” appellant did not have
specific complaints about his attorney, “a nice man.” Appellant wanted assurances that
his attorney could represent his interests without a conflict of interest, and the trial court
gave him those assurances. We agree with the People that taking appellant’s concerns to
their logical conclusion would mean recusing the entire Los Angeles County Public
Defender’s Office.
None of appellant’s stated concerns showed that his appointed attorney was not
providing adequate representation or that he and his attorney had become embroiled in an
13
irreconcilable conflict. (People v. Vines, supra, 51 Cal.4th. at p. 878.) Appellant’s
subjective lack of confidence in his attorney was insufficient to require substitute
counsel. “‘“[I]f a defendant’s claimed lack of trust in . . . an appointed attorney were
sufficient to compel appointment [or] substitut[ion of] counsel, defendants effectively
would have a veto power over any appointment and by process of elimination could
obtain appointment of their preferred attorneys, which is certainly not the law.”’”
(People v. Memro (1995) 11 Cal. 4th 786, 857.)
The trial court adequately conducted the Marsden hearing. Accordingly, the court
did not abuse its discretion in denying the motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, Acting P. J.
ASHMANN-GERST
We concur:
_____________________________, J.
CHAVEZ
____________________________, J.
HOFFSTADT
14