People v. Lemus CA3 ( 2023 )

Filed 5/1/23 P. v. Lemus 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C095845
Plaintiff and Respondent, (Super. Ct. No. 21CF02705)
v.
RAUL RUIZ LEMUS,
Defendant and Appellant.
A jury found defendant Raul Ruiz Lemus guilty of charges of (1) fleeing a peace
officer’s motor vehicle and driving against traffic (Veh. Code, § 2800.4) and (2) assault
with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c); undesignated
statutory references are to the Penal Code). After a prior serious felony conviction was
found to be true, defendant was sentenced to 11 years 4 months in state prison. On
appeal, defendant contends his Sixth Amendment rights were violated when defense
counsel refused defendant’s request to enter a plea of not guilty by reason of insanity
(NGI). Defendant further contends the trial court erred in denying his two Marsden
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motions (People v. Marsden (1970) 2 Cal.3d 118) and that cumulative errors denied his
due process right to a fair trial. We reject these claims and affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
On the evening of May 18, 2021, a sergeant with the Butte County Sheriff’s Office
responded to a call about a suspicious vehicle in a trailer park. He parked his patrol car
with the lights off by the entrance and waited for backup. While waiting, the sergeant
saw a vehicle driven by defendant matching the description of the suspicious vehicle
speed out of the park. As the vehicle turned, its rear tires spun and smoked, and the back
end swung into the oncoming lane. The sergeant turned on his headlights and followed
five to six vehicle lengths behind, so that the driver of the vehicle would not identify him
as a police officer. The sergeant radioed the vehicle’s position.
The sergeant saw the vehicle go around a car and through a four-way stop without
stopping and then turn. He followed and saw the vehicle make another turn, crossing into
the oncoming lane in the process. The vehicle then pulled over to the right and slowed
down. The sergeant activated the patrol car’s flashing lights to make a traffic stop, but
the vehicle veered back onto the road and took off.
When the vehicle made another turn, the sergeant activated his siren. The vehicle
slowed down but then speeded up again. The sergeant continued his pursuit of the
vehicle as it made additional turns, and then saw another patrol car coming in the
opposite direction with its lights and siren activated. Defendant’s vehicle went into the
opposite lane and drove towards the patrol car, causing it to swerve off the road to avoid
a collision. The patrol car turned and joined the pursuit. A third patrol car had also
joined, taking the lead. The vehicle made another turn without stopping at a stop sign
and again moved into the wrong lane, forcing another car off the road.
During the pursuit, the sergeant noticed that the vehicle was missing its doors and
that a male passenger was in the front seat. The sergeant identified defendant as the
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driver. Ultimately, the vehicle’s engine caught fire. The passenger jumped out of the
moving vehicle and fled. The vehicle continued on fire down the road while defendant
hung out the side, attempting to pour liquid on the fire to put it out. When the engine
finally died, defendant was apprehended by officers.
DISCUSSION
I
Plea of Not Guilty by Reason of Insanity
A. Additional Factual Background
At the end of the hearing on defendant’s second Marsden motion, defendant
complained: “He [(defense counsel)] didn’t even want to put my plea in. I said the
reason – because I don’t remember none of it. I mean, I remember some of it, but I don’t
remember most of it, because I don’t – I don’t remember most of it.” Defendant
continued: “I told him, Plead temporary insanity. He said, Oh, no, no, no. Said I was
crazy, you know. Like, I don’t need him representing me if he’s not going to do what I
ask him to do, you know.” Earlier in the hearing, defendant said: “I don’t even know
who was in my car. I barely remember what happened.”
At defendant’s first Marsden hearing, he also said: “And apparently the officer
that arrested me said I was screaming and yelling that I was Satan.”
B. Legal Background
“ ‘A plea of not guilty by reason of insanity refers to the defendant’s mental state
at the time of the commission of the crime, a mental state which is distinguishable from
that which is required of a defendant before he may be allowed to stand trial.’ [Citation.]
‘Insanity, under California law, means that at the time the offense was committed, the
defendant was incapable of knowing or understanding the nature of his act or of
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distinguishing right from wrong.’ ” (People v. Henning (2009) 178 Cal.App.4th 388, 396
(Henning).)
Under California law, every plea must be entered personally by the defendant in
open court. (§ 1018.) In general, defense counsel controls tactical decisions. (Henning,
supra, 178 Cal.App.4th at p. 397.) A defendant, however, has a personal right to enter
any plea he or she wants, even if defense counsel believes the plea is a poor tactical
choice. (People v. Clark (2011) 52 Cal.4th 856, 893 (Clark); Henning, at p. 397; People
v. Clemons (2008) 160 Cal.App.4th 1243, 1251 (Clemons).) A competent defendant who
makes an unequivocal request to enter an NGI plea has a statutory right to do so.
(§ 1018; People v. Weaver (2001) 26 Cal.4th 876, 963; People v. Gauze (1975) 15 Cal.3d
709, 717; Henning, at pp. 397-398.) “[A] defendant . . . cannot be compelled by counsel
to abandon [an insanity defense] merely because counsel disagrees with the tactics of that
decision.” (People v. Medina (1990) 51 Cal.3d 870, 900.)
We note that on June 9, 2021, defense counsel expressed doubt about defendant’s
mental competence. Counsel asked the court to order a section 1368 evaluation. The
court ordered the evaluation and suspended criminal proceedings. At a September 8,
2021, hearing, the court adopted the findings of the report of the psychologist appointed
to conduct the evaluation and found defendant mentally competent to stand trial.
C. Analysis
On this record, it is not clear that defendant made an unequivocal request to
defense counsel to enter an NGI plea. Defendant made the statements quoted above at
the end of a hearing that runs to 13 pages of reporter’s transcript. At the first and second
Marsden hearings, defendant voiced essentially the same complaints about defense
counsel’s tactics—which we discuss in the next section—before abruptly bringing up his
desire to enter an NGI plea at the end of the second hearing.
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This record is in contrast to that in Henning, where this court concluded that the
defendant “unequivocally requested to enter an NGI plea” during two Marsden hearings.
(Henning, supra, 178 Cal.App.4th at p. 397.) In Henning, the court granted the
defendant’s first Marsden motion where one of the grounds was “his dissatisfaction with
defense counsel’s refusal to allow him to enter an NGI plea.” (Id. at pp. 394-395.) At a
second Marsden hearing, the defendant stated that counsel “ ‘does not want to go along
with my plea,’ ” and answered in the affirmative to the court’s question, “ ‘is it your
position that you were insane at the time of the incident?’ ” (Id. at p. 395.)
Even assuming that defendant unequivocally requested to enter an NGI plea, we
must assess whether prejudicial error resulted from defendant’s counsel’s refusal to do
so. (Henning, supra, 178 Cal.App.4th at p. 398.) “Errors of state statutory law are
analyzed pursuant to our Supreme Court’s decision in People v. Watson (1956) 46 Cal.2d
818. [Citation.] Under Watson, an error warrants reversal only if it ‘is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.’ ” (Henning, supra, 178 Cal.App.4th at p. 398, quoting Watson,
at p. 836.)
Defendant disagrees that a showing of prejudicial error is required. Relying on
McCoy v. Louisiana (2018) ___ U.S. ___ [200 L.Ed.2d 821] (McCoy), defendant
contends that failure to enter an NGI plea is not subject to harmless error analysis. In
McCoy, the United States Supreme Court held that the defendant’s Sixth Amendment
right to assistance of counsel was violated when, during the guilt phase of a capital trial,
defense counsel conceded that defendant committed three murders in order to afford the
defendant the best chance to avoid a death sentence. (Id. at p. ___ [200 L.Ed.2d at
p. 827].) The defendant expressly told his counsel not to make that concession. (Ibid.)
The United States Supreme Court said: “When a client expressly asserts that the
objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his
lawyer must abide by that objective and may not override it by conceding guilt.” (Id. at
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p. ___ [200 L.Ed.2d at p. 831].) The court further held: “Violation of a defendant’s
Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called
‘structural’; when present, such an error is not subject to harmless-error review.” (Id. at
p. ___ [200 L.Ed.2d at p. 833].)
Defendant would extend McCoy to defense counsel’s refusal to enter an NGI plea.
Based on McCoy, defendant insists that the judgment must be reversed and the case
remanded for a new trial without any need to show prejudice.
Defendant does not cite any California cases applying McCoy to defense counsel’s
refusal to enter an NGI plea, and we are not aware of any. In McCoy, the court said,
“Some decisions . . . are reserved for the client—notably, whether to plead guilty, waive
the right to a jury trial, testify in one’s own behalf, and forgo an appeal. [Citation.] [¶]
Autonomy to decide that the objective of the defense is to assert innocence belongs in
this latter category.” (McCoy, supra, ___ U.S. at p. ___ [200 L.Ed.2d at p. 830].)
Accordingly, California case law has applied McCoy to circumstances where the
defendant desires to maintain his or her innocence and is overridden by defense counsel.
For example, in People v. Eddy (2019) 33 Cal.App.5th 472, this court held that the Sixth
Amendment right recognized in McCoy applies where the record shows “(1) that
defendant’s plain objective is to maintain his innocence and pursue an acquittal, and (2)
that trial counsel disregards that objective and overrides his client by conceding guilt.”
(Id. at p. 482; see also People v. Flores (2019) 34 Cal.App.5th 270, 282 [McCoy applies
where the defendant expressed his objective to maintain innocence].)
Defendant also relies on the Ninth Circuit’s opinion in United States v. Read (9th
Cir. 2019) 918 F.3d 712. We acknowledge that decisions of lower federal courts, while
not binding, are persuasive and entitled to great weight, especially where they bear a
marked factual similarity to the case before us. (Tichinin v. City of Morgan Hill (2009)
177 Cal.App.4th 1049, 1064, fn. 7.) But that is not the situation here. In Read, the Ninth
Circuit applied McCoy when defense counsel presented an insanity defense over
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defendant’s clear rejection of the defense. (Read, at p. 719.) In doing so, the court
emphasized that: “An insanity defense is tantamount to a concession of guilt.” (Id. at
p. 720.)
Accordingly, we do not extend the claim of structural error under McCoy outside
of the context of defense counsel’s disregard of a defendant’s objective to maintain his or
her innocence. Because we reject the claim of structural error and because defendant
failed to demonstrate or even argue that he was deprived of a fair trial or otherwise
suffered prejudice as result of the claimed error, he is not entitled to relief on appeal.
(People v. Stewart (2004) 33 Cal.4th 425, 462-463; People v. Ramirez (2022) 13 Cal.5th
997, 1032 [on appeal, the defendant must show error and prejudice].) In any event, if
defendant had claimed prejudicial error, we would reject it.
In Henning, we held that a trial court’s erroneous denial of the right to plead NGI
“does not warrant reversal if an insanity defense is baseless.” (Henning, supra,
178 Cal.App.4th at p. 400.) We declined to reverse the judgment, because “the record
affirmatively demonstrates the lack of credible basis for an insanity defense.” (Id. at
p. 401.) We noted, inter alia, that the record contained no evidence of mental defect or
condition that rendered the defendant incapable of appreciating that his acts were
wrongful. (Id. at p. 401.) Further, the circumstances of the defendant’s offenses and
flight indicated that he understood the wrongful nature of his acts. (Ibid.) He wore a ski
mask to avoid recognition and gloves to avoid leaving fingerprints. (Ibid.) He put duct
tape over his license plate. (Ibid.) He attempted to conceal the shotgun in his backpack
while trying to evade police. (Ibid.)
We distinguished Clemons, supra, 160 Cal.App.4th 1243 where the court
concluded insanity was not a “ ‘ “futile line of defense” ’ ” and reversed the judgment.
(Henning, supra, 178 Cal.App.4th at p. 402, quoting Clemons, at p. 1253.) The
defendant in Clemons “had a history of diagnoses of and hospitalizations for mental
illness.” (Henning, at p. 402.) The crime in Clemons, “possessing an illegal razor blade
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in prison . . . was discovered due to a ‘self-inflicted . . . wound to his arm that was deep
enough to require 18 stitches and [he] grinned sheepishly at the sheriff’s deputies when
they discovered what he had done.’ ” (Henning, at p. 402, quoting Clemons, at p. 1253.)
Our review indicates that the record lacks evidentiary support for a claim that, at
the time of vehicle pursuit, defendant was unable to understand that the nature of his acts
or to distinguish right from wrong. To be sure, defendant self-reported some mental
health diagnoses, but he had no documented history of diagnosis and hospitalization and
was not taking medication. In addition, defendant remembered the details of the poor
condition of the vehicle he was driving (i.e., no doors, no hood, etc.), which he correctly
identified as the reason for the pursuit by law enforcement. Although defendant claimed
he could not recall much of the events, when asked by a probation officer if his mental
health conditions contributed to the crime, defendant said, “ ‘I have no idea. I just
remember being angry about being harassed by law enforcement.’ ” When the vehicle
caught fire, he tried to put the fire out. Most significantly, defendant had a history of
traffic stops, including three in 2020-2021, and a 2019 felony conviction for fleeing law
enforcement.
Given this record, it was not reasonably probable that defendant would have had a
different result at trial had he entered an NGI plea. Therefore, we will not reverse his
conviction on that basis.
II
Marsden Motions
Defendant also contends the trial court abused its discretion in denying his
Marsden motions. According to defendant, he and defense counsel were embroiled in an
irreconcilable conflict such that ineffective representation was likely to result.
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A. Additional Factual Background
Questioned by the trial court at each hearing about the specific reasons why he
believed defense counsel had not properly represented him, defendant articulated largely
overlapping complaints, which we summarize. Defendant complained that his counsel
(1) misrepresented the nature of the flashing lights on a patrol car, which defendant said
had to be solidly facing forward for a felony charge; (2) showed defendant only one
video clip of the pursuit when there should be many based on the number of officers
involved; (3) walked out of the interview room while defendant was watching the video,
which led to defendant’s outburst that prompted counsel to ask for a section 1368
evaluation; (4) referred to the pursuit as a “horrible high-speed chase” when the patrol car
speedometer shown on the video only went up to 50 miles per hour and defendant’s
vehicle was in poor condition after sitting for 10 years; (5) did not ask defendant what
happened but assumed he was guilty; (6) did not address defendant’s desire to admit the
charge of violating postrelease community supervision (PRCS); (7) refused to talk to
defendant after their confrontation over viewing the police video; (8) knew that the
officers were lying about what happened during the pursuit and the arrest; and (9) had
made defendant agree to a plea in a previous case.
Invited by the trial court to respond to these complaints, defense counsel at the
first Marsden hearing described reviewing discovery and meeting with defendant to go
over it, including reviewing the video. Counsel was fast-forwarding to the most relevant
parts, but defendant wanted to watch the entire video. Counsel declined to watch the
video again and left the room to make telephone calls. When he returned, defendant lost
his temper and slapped the glass of the interview room, which prompted defense counsel
to ask for a section 1368 evaluation. Defense counsel denied stating that defendant had a
“terrible case.”
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At the second Marsden hearing, defense counsel acknowledged that he had not
met with defendant since his outburst. Counsel explained that defendant improbably
believed that all the sheriff’s patrol cars in Butte County do not have forward -facing red
lights, therefore he could not be guilty of a felony. When at their first meeting, counsel
said that patrol cars have red lights facing everywhere, defendant lost his temper.
Defense counsel also said that he did talk with defendant about the facts of the case;
defendant explained that he is a mechanic and repairs cars, and that was why the car did
not have doors or a hood.
When the trial court inquired specifically about defendant’s claim that defense
counsel had not addressed defendant’s PRCS violation, counsel explained the delay was
due to the section 1368 evaluation. Counsel further noted that: “[Defendant] wants to
admit his violation, and do the violation so he can bail out. And I explained to him if he
admits the violation that could probably, and most likely, be used against him when we
got to trial, because he refuses to plead guilty. So when we go to trial, not only is the
evading on a video, but now the People will have his admission that he did it.”
Defendant responded that he only wanted to admit “there was a person in there holding
me at gunpoint,” which the trial court pointed out did not constitute a valid admission of
the PRCS violation.
The trial court denied both of defendant’s Marsden motions, finding that defense
counsel had properly represented defendant and the relationship had not deteriorated to
the point that counsel would be unable to continue to represent defendant.
B. Legal Background
“A defendant is entitled to have appointed counsel discharged upon a showing that
counsel is not providing adequate representation or that counsel and defendant have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 (Jones).) “We
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review a trial court’s decision declining to relieve appointed counsel under the deferential
abuse of discretion standard.” (Id. at p. 1245.) Denial of a Marsden motion is “ ‘ “not an
abuse of discretion unless the defendant has shown that a failure to replace the appointed
attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” ’ ”
(People v. Valdez (2004) 32 Cal.4th 73, 95.)
“ ‘Tactical disagreements between the defendant and his attorney do not by
themselves constitute an “irreconcilable conflict.” ’ ” (People v. Valdez, supra,32 Cal.4th at p. 95.) Nor does a defendant’s “claimed lack of trust in, or inability to get
along with, an appointed attorney” compel, without more, the discharge of appointed
counsel. (People v. Crandell (1988) 46 Cal.3d 833, 860 (Crandell), abrogated on another
ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) “If a defendant’s claimed
lack of trust in, or 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.” (Jones, supra, 29 Cal.4th at
p. 1246.)
C. Analysis
We conclude defendant has failed to demonstrate an irreconcilable conflict. The
statements by both defendant and defense counsel at both hearings indicated that their
disputes principally concerned tactical decisions about evidence, which would not
constitute irreconcilable differences. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1302;
People v. Myles (2012) 53 Cal.4th 1181, 1207; People v. Dickey (2005) 35 Cal.4th 884,
922; People v. Welch (1999) 20 Cal.4th 701, 728-729.) For instance, defense counsel
believed the officer’s bodycam video was significant evidence of defendant evading
officers. Defendant disagreed based on the speed shown on the speedometer in the video
and the poor condition of the vehicle. Defendant maintained that the red lights on the
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patrol cars involved in the pursuit were not structured as required (i.e., what he called
“solid forward facing lights”) to establish a felony violation. Defense counsel found this
improbable. Moreover, as the trial court noted, to the extent there were conflicts between
the statements of defendant and defense counsel, the court was entitled to accept
counsel’s explanation. (Jones, supra, 29 Cal.4th at p. 1245.)
Defendant argues that the trial court ignored the “obvious conflict” over
defendant’s right to plead NGI. In People v. Loya (2016) 1 Cal.App.5th 932, the court
held: “A trial court should substitute new counsel upon learning in a Marsden hearing
that defense counsel refuses to allow a defendant to exercise his or her right to enter an
NGI plea.” (Id. at p. 945, citing Henning, supra, 178 Cal.App.4th at p. 404.) The court
in Loya, however, held that denial of a Marsden motion is harmless beyond a reasonable
doubt where, as here, the defendant’s behavior established that he was capable of
distinguishing right from wrong and knew or understood the nature of his actions. (Loya,
at pp. 945-946.)
Next, defendant claims his relationship with defense counsel had broken down and
created an irreconcilable conflict when counsel expressed doubt about defendant’s
competence. However, it was defendant’s own outburst that prompted defense counsel to
ask for a section 1368 evaluation. Thus, defendant created any conflict that defendant
now claims required substitution of counsel. “ ‘[A] defendant may not force the
substitution of counsel by his own conduct that manufactures a conflict.’ ” (People v.
Taylor (2010) 48 Cal.4th 574, 599-600, quoting People v. Smith (1993) 6 Cal.4th 684,
696.) In addition, after defendant’s first Marsden motion was denied, defendant told the
psychologist performing the section 1368 evaluation that defendant was able to work
with defense counsel.
Lastly, defendant contends that defense counsel failed to communicate with him
after his initial outburst. Any impediment in their communications, however, stemmed
from defendant’s furious reaction to being contradicted by his attorney. As counsel
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explained at the second Marsden hearing, “when I try to tell him anything different, that’s
when he went ballistic and wouldn’t have any type of rational conversation with me.” As
courts have explained, “[a] trial court is not required to conclude that an irreconcilable
conflict exists if the defendant has not made a sustained good faith effort to work out any
disagreements with counsel and has not given counsel a fair opportunity to demonstrate
trustworthiness.” (Crandell, supra, 46 Cal.3d at p. 860, italics omitted; see also Clark,
supra, 52 Cal.4th at p. 918 [defendant cannot refuse to cooperate with counsel and
demand substitution]; People v. Lindsey (1978) 84 Cal.App.3d 851, 860 [a breakdown
caused by defendant’s intransigence and failure to cooperate is insufficient to support
substitution of appointed counsel].)
We conclude that the trial court did not abuse its discretion in denying defendant’s
Marsden motions.
III
Cumulative Error
Defendant’s ultimate claim is that the cumulative prejudicial effect of multiple
errors requires reversal of his conviction, even if individual errors were harmless. As
mentioned, even to the extent there could be any error regarding defendant’s desire to
enter an NGI plea, that error was harmless. Therefore, there was no cumulative error.
(People v. Tuggles (2009) 179 Cal.App.4th 339, 388; People v. Letner and Tobin (2010)
50 Cal.4th 99, 209.)
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DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
EARL, J.
BOULWARE EURIE, J.
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