California Court of Appeal Jul 1, 2013 No. E055057Unpublished
Filed 7/1/13 P. v. Hardy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055057
v. (Super.Ct.No. RIF1103524)
TARIUS JAVAR HARDY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Reversed with directions.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and James D. Dutton and Alana
Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Tarius Javar Hardy broke a window to get into his girlfriend‘s
apartment and, after entering her home, refused to allow her to leave the apartment to get
medical help for cuts she sustained from the broken glass. He also confiscated her
Here, the jury was instructed that the underlying felonies that defendant had the
intent to commit when he made entry into the residence was both false imprisonment or
dissuading a witness. The jury was instructed, in pertinent part, that ―[e]very person who
enters any building with the specific intent to commit false imprisonment or dissuading a
witness, a felony, is guilty of the crime of burglary . . . .‖ In closing argument, the People
argued that he possessed both intents when he entered the home. The jury found him
16
guilty of both underlying felonies. Based on the instructions and argument of the People,
at the time of entry, defendant possessed the intent to either falsely imprison Haro or
dissuade her from calling the police, or both. Since defendant‘s commission of the three
crimes had the same intent and objective, they could not be sentenced consecutively.
The People argue that the trial court could conclude that when defendant entered
Haro‘s residence, he only possessed the intent and objective to falsely imprison her.
However, the prosecutor below chose either crime as the underlying felony to prove
burglary and there was no unanimity instruction for the burglary charge. Hence, if some
of the jurors concluded that defendant formed the intent to commit the crime of
dissuading a victim as the underlying felony for burglary, we would be required to
reverse his burglary conviction under the theory advanced by the People on appeal.
The People rely upon People v. Williams (1984) 157 Cal.App.3d 145 and People
v. Wynn (2010) 184 Cal.App.4th 1210 to support their claim that defendant had separate
intents and objectives.
In People v. Wynn, supra, 184 Cal.App.4th 1210, the defendant entered a store and
took cigarettes. Once he left the store, he was confronted by a loss prevention officer.
The defendant threw down the cigarettes and attacked the loss prevention officer with a
nunchaku. (Id. at p. 1216.) He was convicted of burglary and several assault counts.
The Wynn court found that the defendant could be sentenced on both the burglary and the
convictions involving assault with a deadly weapon because the burglary involved the
desire to take cigarettes and the assault on the loss prevention officer was in order to
17
avoid arrest. It concluded: ―Because substantial evidence supports a finding that [the
defendant] had a different objective in committing the burglary than in committing the
assault, section 654 did not require the trial court to stay the sentence on the burglary
count.‖ (Ibid.)
In People v. Williams, supra, 157 Cal.App.3d 145, the defendant entered the
victim‘s home through an open window. He took a television from a room in which an
11-year-old girl was sleeping. He started to leave the room with the television when the
girl awoke. He then raped the girl, and she was found dead the next morning. (Id. at p.
157.) The appellate court discerned that defendant had two criminal objectives, first
being the theft of the television and second being the rape. (Ibid.) It concluded that
multiple punishment was not barred by section 654. (Id. at p. 158.)
The facts of Wynn and Williams clearly differ from this case. Here, the People
proceeded on the theory that defendant entered Haro‘s apartment either to falsely
imprison her or dissuade her from calling the police, or both. In the above cases, it is
clear that when committing the entry into the store and home, the defendants in those
cases had an intent to steal. The later decision to fight off the loss prevention officer in
Wynn and to rape the 11-year-old girl in Williams clearly were separate objectives.
The People also claim that defendant followed Haro into the bathroom and then
took her cellular telephone. When they moved to the bedroom, he gave the telephone
back to her. They insist that defendant had abandoned his intent to dissuade her from
calling the police but he continued to falsely imprison her. Part and parcel of the false
18
imprisonment was that Haro could not contact the police. She explained she did not call
the police because she knew he would not let her and because he had broken her
telephone in the past. There simply is no evidence that defendant‘s intent and objective
in committing burglary, false imprisonment, and dissuading a victim had separate intents
and objectives.
Based on the foregoing, the trial court erred by imposing consecutive sentences on
counts 1 and 3. We will order the trial court to stay the sentences pursuant to section 654.
VI
UPPER TERM AND CONSECUTIVE SENTENCES
Defendant additionally argues in his opening brief that the trial court erred by
imposing an upper term sentence on count 2 and consecutive sentences on counts 1 and 3.
In light of our determination that the trial court erred by imposing sentences on counts 1
and 3, rather than staying them pursuant to section 654, his argument that the court erred
by choosing consecutive rather than concurrent sentences is no longer applicable.
Moreover, defendant appears to concede in his opening brief that imposition of the upper
term on count 2 was supported by aggravating factors. Out of an abundance of caution,
we briefly review the validity of the upper term on count 2.
In sentencing on count 2, as the principal term, the trial court stated that it had
considered the aggravating and mitigating circumstances in the probation report. It
stated: ―In aggravation, the crime involved great violence, great bodily harm, the threat
of great bodily harm, and exposed a high degree of cruelty, viciousness, and callousness.
19
The manner in which this crime was carried out indicated planning, sophistication, and
professionalism. The defendant engaged in violent conduct that indicates a serious
danger to society. The defendant‘s prior convictions as an adult, sustained since a
juvenile, are numerous and are increasing in seriousness. He has served a prior prison
term, and his prior performance on probation and parole was unsatisfactory.‖ The trial
court found no mitigating factors.
―‗Sentencing courts have wide discretion in weighing aggravating and mitigating
factors . . . .‘‖ (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) ―[A] trial court is
free to base an upper term sentence upon any aggravating circumstance that the court
deems significant, subject to specific prohibitions. [Citations.] The [trial] court‘s
discretion to identify aggravating circumstances is otherwise limited only by the
requirement that they be ‗reasonably related to the decision being made.‘ [Citation.]‖
(People v. Sandoval (2007) 41 Cal.4th 825, 848, fn. omitted.) ―In making such
sentencing choices, the trial court need only ‗state [its] reasons‘ [citation]; it is not
required to identify aggravating and mitigating factors, apply a preponderance of the
evidence standard, or specify the ‗ultimate facts‘ that ‗justify[ ] the term selected.‘
[Citations.] Rather, the court must ‗state in simple language the primary factor or factors
that support the exercise of discretion.‘ [Citation.]‖ (Id. at pp. 850-851.)
A single factor in aggravation is sufficient to justify the upper term. (People v.
Cruz (1995) 38 Cal.App.4th 427, 433.) We review the trial court‘s sentencing decision
20
for an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
977-978.)
Here, the aggravating factors were properly considered by the trial court. Briefly,
defendant broke the window at Haro‘s apartment, causing her to bleed and believe that
she needed to go to the hospital. She was left with a permanent scar. This showed that
the crime involved great violence and great bodily harm (Cal. Rules of Court, rule
4.421(a)(1)) and that he engaged in violent conduct which was a serious danger to society
(Cal. Rules of Court, rule 4.421(b)(1)). Additionally, just based on the prior convictions
admitted by defendant in this case supported the upper term. (Cal. Rules of Court, rule
4.421(b)(2), (b)(3).) There were ample aggravating factors and no mitigating factors to
support the upper term on count 2.
Even if the trial court erred in relying on one or more of the above contested
factors, any error was harmless. ―‗When a trial court has given both proper and improper
reasons for a sentence choice, a reviewing court will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper.‘ [Citation.]‖ (People v. Cruz, supra, 38
Cal.App.4th at pp. 433-434.) We find no error and further no reasonable probability
defendant would have been given a lesser sentence.
21
VII
MOTION FOR NEW TRIAL
Defendant contends this case must be remanded for a careful inquiry concerning
his claim of ineffective representation by his trial counsel that he presented in a motion
for new trial that the trial court lodged but did not consider and whether or not he should
be appointed substitute counsel to investigate the claim for a motion for new trial.
A. Additional Factual Background
At the time of sentencing, defendant‘s counsel informed the trial court that
defendant wanted to file a motion for new trial. Defense counsel stated, in referring to
the motion prepared by defendant, ―Yes. That I would also like you to have an
opportunity to review.‖ The trial court stated that it would not read it but agreed to lodge
it. The trial court then proceeded to sentencing. Defendant‘s counsel stated: ―Your
Honor, I do want to be heard in that regard as far as sentencing goes, but I know that
[defendant] would like Your Honor to consider his motion for a new trial and have an
opportunity to read that. And I‘m sure [defendant] has some issues that he would like to
point out to Your Honor with regard to that motion for a new trial.‖ The trial court
responded: ―Well, [defendant] is not the attorney of record in this case, and it‘s my
philosophy not to accept motions from people who are not attorney of record. So I will
lodge it, but I‘m not going to consider it. Now, if he would like to say something at the
sentencing hearing, he can do that. Anything he wants to express about sentencing, fine.‖
22
Defendant‘s counsel conferred with defendant and then advised the trial court that
defendant was not requesting to make a statement. Neither defendant nor his trial
counsel divulged to the judge in open court the grounds for the motion for new trial or
make an oral request for substitution of counsel.
In the motion filed with the trial court, which defendant had prepared, he raised
several claims.3 He presented two claims that his due process rights and sixth
amendment rights to a fair hearing were violated when the motion was denied because a
lesser offense than burglary was committed and because the dissuading a witness charge
was filed after the preliminary hearing. He further raised a claim of ineffective assistance
of counsel based on his counsel not requesting a continuance or that a warrant be issued
for witnesses, not requesting a mistrial, and failing to request a jury instruction. He also
claimed that the trial court improperly failed to instruct the jury on the lesser offense of
aggravated trespass.
In his ―Prayer for Relief‖ defendant requested that an order to show cause be
issued, appointment of counsel, dismissal or modification of the charges, and other relief
that the trial court deemed fair and appropriate.
3 The clerk‘s transcript contained an illegible copy of the motion. Defendant‘s counsel on appeal provided a legible copy of the new trial motion, and we took judicial notice of the motion on July 9, 2012.
23
B. Analysis
In People v. Smith (1993) 6 Cal.4th 684, the California Supreme Court affirmed
that a defendant is entitled to raise the claim of ineffective assistance of counsel in a
motion for new trial and thus is entitled to substitution of counsel posttrial upon a ―proper
showing.‖ (Id. at pp. 692–693, 695; see also People v. Fosselman (1993) 33 Cal.3d 572,
582.) The Smith court explained that, ―‗[i]f the claim of inadequacy relates to courtroom
events that the trial court observed, the court will generally be able to resolve the new
trial motion without appointing new counsel for the defendant. [Citation.] If, on the
other hand, the defendant‘s claim of inadequacy relates to matters that occurred outside
the courtroom, and the defendant makes a ―colorable claim‖ of inadequacy of counsel,
then the trial court may, in its discretion, appoint new counsel to assist the defendant in
moving for a new trial. [Citations.]‘ [Citation.]‖ (Smith, at pp. 692-693.) However, the
court emphasized that new counsel should only be appointed if a proper showing of
ineffective assistance of trial counsel has been shown through inquiry by the trial court of
defendant and his trial counsel. (See, e.g. Smith, at pp. 695-696; People v. Stewart (1985)
171 Cal.App.3d 388, 396-397, disapproved of on other grounds in Smith, at pp. 693-694,
696.)
In People v. Stewart, supra, 171 Cal.App.3d at pp. 396-398, the defendant‘s
attorney of record, at the behest of the defendant, filed a motion for new trial on the basis
of his own incompetency. At a hearing on the motion, the trial court asked the defendant
and his counsel to divulge the basis for the claim of incompetence. ( Stewart, at pp. 393,
24
397.) At an in camera hearing, the defendant stated that he was inadequately represented
when counsel failed to call his personal doctor and ―‗two witnesses up on the fourth
floor.‘‖ (Id. at p. 394.) With respect to the latter two witnesses, the trial court failed to
question the defendant about their expected testimony. (Id. at p. 398.) The reviewing
court reversed and remanded the case because it reasoned: ―The trial court did not
inquire into the substance of the witnesses‘ expected testimony, but instead denied the
motion without endeavoring to learn whether the testimony might have been material or
even crucial and without appointing new counsel to assist the court in this regard. We
believe this constituted error. ‗A trial judge is unable to intelligently deal with a
defendant‘s request for [a new trial on the basis of trial counsel‘s incompetence or for]
substitution of attorneys unless he is cognizant of the grounds which prompted the
request.‘ [Citation.] A denial of appellant‘s motion for new trial based on ineffective
representation without careful inquiry into the defendant‘s reasons for claiming
incompetence ‗―is lacking in all the attributes of a judicial determination.‖ [Citations.]‘
[Citation.]‖ (Ibid.)
When a defendant with appointed counsel seeks new counsel on the grounds of
inadequate representation, the court must allow the defendant to explain the bases for his
contentions and describe specific instances of ineffective representation. (People v.
Marsden (1970) 2 Cal.3d 118, 124 (Marsden).) However, a defendant must make a
―‗clear indication‘‖ that he wants to substitute his attorney in order to be entitled to a
25
Marsden hearing. (People v. Sanchez (2011) 53 Cal.4th 80, 89-90; see also People v.
Richardson (2009) 171 Cal.App.4th 479, 484.)
Here, defendant filed a motion for new trial based on ineffective assistance of
counsel and specifically requested in his prayer for relief that he be appointed counsel.
Counsel for defendant in open court stated he and defendant wanted the trial court to
review the new trial motion. Neither trial counsel nor defendant stated in open court the
basis for the motion, and defendant did not explicitly state that he was requesting
substitute counsel. The trial court did not consider the written motion for new trial
because defendant was not counsel of record. If the trial court had read the motion for
new trial, it would have been clear from the motion that he was making a motion for new
trial based on ineffective assistance of counsel and that in his prayer for relief he sought
to be appointed new counsel.
Defendant has provided no case, and we have not found one, that holds a request
in the prayer for relief in a motion for new trial for appointed counsel is a ―clear
indication‖ of a request to substitute counsel. However, we need not resolve the issue.
Here, at the very least, the trial court should have considered the motion for new trial to
determine if it presented grounds for a new trial or substitution of counsel to present the
claim. We certainly do not purport to hold that the trial court is obligated to review every
document that is presented to it by a defendant when he has appointed counsel.
However, here, counsel asked that the trial court consider the motion for new trial on two
separate occasions in open court. Defendant did what he could to make his claims for a
26
motion for new trial be known, but they were ignored by the trial court. The trial court
erred by failing to make a further inquiry into defendant‘s request to file a motion for new
trial. If the trial court here had reviewed the motion for new trial, it may have easily
resolved the issues raised in the motion. It may not have had to substitute counsel if it
could resolve the issue simply by reviewing the new trial motion and making its decision
based on its courtroom observations. (See People v. Smith, supra, 6 Cal.4th at pp. 692-
693.)
Having determined that there was an inadequate inquiry into defendant‘s request
for a motion for new trial, the final question before us is whether the trial court‘s error
was prejudicial. (People v. Braxton (2004) 34 Cal.4th 798, 818 [court‘s refusal to hear
motion for new trial is harmless error if record on appeal allows reviewing court to
determine as a matter of law the motion lacked merit or the trial court properly exercised
its discretion to deny it].)
Here, although defendant filed his motion for new trial, he was not given the
opportunity to explain his motion or his reasons for appointment of counsel to pursue his
claims. The People claim defendant was not prejudiced by the inadequate inquiry
because the trial court would not have granted the motion for new trial. They insist the
evidence that defendant would have produced -- that his counsel failed to call
witnesses -- would not have warranted the granting of a new trial. The People base this
conclusion on the pretrial proceedings. Prior to trial, the trial court inquired of defense
counsel if there would be any defense witnesses. Defendant‘s counsel responded, ―I am
27
anticipating these three, although none of them did show up on their subpoena today, . . .
I heard from Gloria Hernandez. I didn‘t hear from the other two. I was going to try to
call them and see what their deal is. They live in the apartment complex that the incident
occurred in. [¶] I understand that she is saying that their testimony is irrelevant as to
whether defendant resided at the residence; however, they will testify that they saw him
there every day.‖ Defendant also stated that the neighbors hated him. Defense counsel
represented that they were impeachment witnesses to show that defendant lived in the
apartment and that he was there on a daily basis. The People claim this evidence would
not have helped defendant.
However, we cannot speculate, based on the record before us, as to defendant‘s
exact claims. The trial court‘s failure to conduct a further inquiry has resulted in a record
which does not explain whether defendant actually was complaining about the above
witnesses or other witnesses. It also does not address the instructional error claims or the
claim for mistrial. Despite the filing of the motion for new trial by defendant, his claims
are not entirely clear and he was not given a chance to explicate those reasons. As stated
in People v. Braxton, supra, 34 Cal.4th at page 819, ―when, as here, a trial court has
refused to hear a defendant‘s new trial motion, and the appellate record is insufficient to
permit a reviewing court to determine as a matter of law whether the proposed motion
was meritorious, the reviewing court may remand the matter to the trial court for a
belated hearing of the new trial motion, absent a showing that a fair hearing of the motion
is no longer possible.‖ As such, the appropriate remedy is remand for further inquiry by
28
the trial court into defendant‘s complaints about his trial counsel and other issues raised
in the new trial motion. If possible, the court may rule on the motion for new trial
without substituting new counsel; if not, it may determine if substitute counsel should be
appointed to file a new trial motion.4
VIII
DISPOSITION
The judgment is conditionally reversed and the matter is remanded with the
following directions: (1) The court shall hold a hearing on defendant‘s motion for new
trial; (2) if the court finds that defendant has made a proper showing of ineffective
assistance of trial counsel, it can either grant the motion for new trial or appoint new
counsel to represent defendant and entertain a motion for a new trial if newly appointed
counsel files one; and (3) if newly appointed counsel makes no new trial motion, if no
counsel is appointed and the trial court denies the motion for new trial, or the new trial
motion filed by substitute counsel is denied,the court shall reinstate the judgment.
4 We note that in the recent California Supreme Court case of People v. Cornwell (2005) 37 Cal.4th 50, the California Supreme Court felt that remand was not the appropriate remedy when substitution of counsel to file a motion for new trial was denied because the issues raised in the request for new trial or substitution of counsel consisted of facts outside the record. As such, a petition for habeas corpus was the appropriate remedy. (Id. at pp. 100-101.) However, in that case, the trial court had inquired of the defendant about his claims and it was clear they all pertained to matters outside the record. (Id. at p. 101.) Here, the trial court made no inquiry, and it is not clear from the record that all of the claims are outside the record on appeal or not based on the trial court‘s observations. Remand is the appropriate disposition in this case.
29
In the event of reinstatement of the judgment, we order that the sentences on
counts 1 (false imprisonment) and 3 (dissuading a witness) be stayed pursuant to section
654. The minute order from sentencing and the abstract of judgment shall be modified.
A copy of the corrected abstract of judgment shall be forwarded to the California
Department of Corrections and Rehabilitation. In all other respects, the judgment, if
reinstated, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J.
We concur:
KING J.
MILLER J.
30
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's sentences for false imprisonment and dissuading a witness must be stayed pursuant to Penal Code section 654 because those offenses were incident to the same objective as the burglary. The court also remanded the case for the trial court to address the defendant's motion for a new trial and substitution of counsel.
Issues
Whether there was sufficient evidence to support the first degree burglary conviction.
Whether Evidence Code section 1109 violates federal constitutional rights to due process and equal protection.
Whether the trial court erred by failing to stay sentences for false imprisonment and dissuading a witness under Penal Code section 654.
Whether the trial court erred by failing to inquire into the defendant's motion for a new trial and substitution of counsel.
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“We conclude that Evidence Code section 1109 is not unconstitutional on its face.”
“The trial court erred by refusing to consider or inquire into defendant‘s motion for a new trial and substitution of counsel, and the error requires remand to the trial court for further inquiry.”