Defendant Jerry Dean Ivans was charged in an amended information in count 1 with attempted first degree murder of Joy Chavez (Pen. Code
Ivans admitted the prior felony. The jury found Ivans guilty as charged and found true the firearm use and great bodily injury allegations.
At the sentencing hearing, Ivans moved for a new trial and requested substitution of counsel. The court denied Ivans's motion for new trial and
On appeal, Ivans contends the trial court erred in (1) failing to instruct the jury with CALJIC No. 4.21; (2) failing to instruct the jury to consider joyriding as a lesser included offense; (3) refusing to conduct a Marsden
The People concede the trial court imposed an excessive restitution fine. We conclude that the trial court erred in (1) failing to instruct the jury on the lesser included offense of joyriding and (2) failing to inquire into Ivans's reasons for requesting substitution of counsel. We also conclude the finding of use of a motor vehicle in the commission of the offense must be stricken.
FACTS
Ivans had lived with Chavez for about three months in 1987. When their relationship ended, Ivans physically abused Chavez. Ivans's parole was revoked as a result of the incident. Chavez refused to testify in Ivans's behalf that she had started the fight.
In the early morning of August 4, 1989, Chavez and Cain were packing a pickup truck which had a camper shell, in preparation for a trip. Cain had received the pickup truck from his neighbor, Tim O'Leary. In settlement of a drug transaction gone awry, Cain had exchanged a travel trailer for the less expensive pickup truck. However, Cain had hooked the trailer up to the pickup and had left town for a week. He then returned and had patched things up with O'Leary. When Chavez and Cain were packing the pickup, Ivans approached. Ivans said he was there because he had heard the pickup
Ivans and Chavez began to argue about her failure to testify on his behalf at the parole revocation proceedings, and they called each other names. Cain said he had heard enough and started to get out of the pickup.
When Cain was climbing over the tailgate, he saw a bright light and heard a shot as Ivans's right hand came up holding a handgun. Cain heard four more shots. Cain did not have a weapon that morning.
Cain was shot just above his left eye. The bullet broke his jaw and lodged in his neck below his left ear. The bullet could not safely be removed, because of its position near the spinal cord. Cain's left eye had to be removed.
Chavez was shot four times. One bullet passed through her left arm and remains lodged near her heart. Two bullets entered the front of her chest. A fourth bullet entered her buttocks and exited near her genitals. Chavez had surgery twice following the shooting, and still experiences pain.
Cain and Chavez both had used methamphetamine (speed) in the past and had observed others who were under the influence of speed. Neither had taken any drugs that morning. Ivans did not appear to them to be under the influence of speed, although Cain assumed Ivans was on speed because he was a known user who was up at 4 a.m. Cain testified that after three or four days of using speed without sleeping, a person gets jittery, jumpy and paranoid.
A month or so after the shooting, the manager of an equipment rental center in Fontana reported that someone had broken into his business premises and had taken a black Mitsubishi pickup. The next day, September 7, 1989, California Highway Patrol (CHP) Officer Karlene Hicks noticed a Mitsubishi pickup stopped on the right shoulder of the freeway near Ludlow. She stopped to check on the welfare of the occupants. Ivans sat in the driver's seat, and he had a female passenger. Ivans seemed annoyed by the officer's contact. He stated he had lost his driver's license. When asked to produce registration and proof of insurance, he said he had borrowed the car from a friend.
He gave a false name, and the officer ran a check on that name and on the pickup. The officer learned the pickup was stolen and arrested Ivans. At the
He was questioned by other CHP officers. He eventually revealed his true name, and the officers learned through a computer check that he had an outstanding arrest warrant for attempted murder. Ivans initiated an "off-the-record" conversation in which he told the officers in a boastful manner about shooting Cain and Chavez. Ivans said he had been paid $900 to retrieve a pickup for a friend, but that a man in the back of the pickup had pulled a shotgun on him. Ivans pulled his own gun and "beat him to the draw and shot him once in the head." Ivans stated he then saw his ex-girlfriend in the back of the pickup. She started screaming, and Ivans shot her three times "in order to do it right" because she was a witness. He stated he had gotten even with Chavez for causing his parole revocation.
The Defense
Ivans lived with Chavez from fall of 1987 until January 1988. After his release from prison, he tried to find her to retrieve his personal belongings which she held. A month or so before the shooting, she told him she had put their possessions in storage, and they had been forfeited for failure to pay storage charges.
About the same time, Ivans met Cain when Ivans was coasting through an alley with his lights off to save a weak battery. Cain asked him what he was doing. About 10 minutes later, Ivans encountered Cain at O'Leary's garage. Cain was carrying a pump shotgun.
In the early morning of August 4, Ivans met John Masterson, another friend of O'Leary's, at an all-night grocery store. Masterson gave Ivans the key to a pickup and told Ivans he could make a few dollars by bringing the pickup to O'Leary. Masterson believed that Cain was in wrongful possession of the pickup. Ivans did not seem to Masterson to be under the influence of speed.
Ivans testified he had then been high on speed for a month and had not slept for several days. He decided to repossess the truck, but was worried about Cain's shotgun, so he borrowed a pistol from a friend. He was startled to see Cain and Chavez in the back of the pickup. A conversation ensued, which developed into an argument with Chavez. When Cain started climbing out of the pickup, Ivans thought he had something in his hand. Fearing it was Cain's shotgun, Ivans pulled out his pistol and emptied it into the shadows of
Ivans hid out in motel rooms. Around September 1, he caught a ride to Arizona in a Mitsubishi pickup with some acquaintances. He did not at first know the Mitsubishi was stolen, but had learned that before his arrest. He lied about his name to the CHP officer to protect his companion from grand theft charges.
He testified that he had told the CHP interrogators his story after he had been handcuffed to a table for three or four hours. He was scared and nervous, not boastful, when he was relating his story to the officers. He never told the officers he had gotten revenge on Chavez by shooting her. He denied he had told the officers other details about which the officers had testified.
DISCUSSION
Failure to Instruct the Jury With CALJIC No. 4.21
In Ramirez, the defendant testified he had drunk eight to ten beers the night of his crime, and "`was higher'" than he was when arrested a few days later with a blood-alcohol level of .14 percent. (Ramirez, supra, 50 Cal.3d at
In other cases, courts found insufficient evidence to support a sua sponte intoxication instruction when (1) the defendant had drunk some beer and whiskey and was "`pretty well plastered'" (People v. Spencer (1963) 60 Cal.2d 64, 88 [31 Cal.Rptr. 782, 383 P.2d 134]); (2) the defendant had been drinking for several hours, but was "only woozy and not completely `blacked out'" (People v. Simpson (1987) 192 Cal.App.3d 1360, 1370 [237 Cal.Rptr. 910]); (3) the defendant had been drinking before the crime; he appeared to be "`a little high'" at the time of the crime, and he testified he was "`pretty drunk'" (People v. Cram (1970) 12 Cal.App.3d 37, 42 [90 Cal.Rptr. 393]); and (4) the defendant had drunk a dozen beers and some wine and thought he was drunk, but knew what he was doing. (People v. Gonzales (1970) 4 Cal.App.3d 593, 607 [84 Cal.Rptr. 863]).
Lesser Included Offense of Joyriding
When an information charges a defendant with both driving and taking a vehicle without the owner's consent, it necessarily charges a violation of both section 499b and Vehicle Code section 10851. (People v. Barrick (1982) 33 Cal.3d 115, 133 [187 Cal.Rptr. 716, 654 P.2d 1243].)
A later decision has clarified the intent element of the offense of joyriding. (People v. Diaz (1989) 212 Cal.App.3d 745 [260 Cal.Rptr. 806].) "The ordinary meaning of the phrase `for the purpose of' is to delineate some additional consequence or purpose. Thus, the individual must not only intend to take the vehicle, but must also intend to temporarily use or operate the same." (Id., at pp. 750-751.)
The People argue that a person is guilty of joyriding but not of an unlawful taking if he reasonably believes his use will not deprive the owner of possession, citing People v. Bailey (1946) 72 Cal.App.2d Supp. 880, 883 [165 P.2d 558] and People v. Neal (1940) 40 Cal.App.2d 115, 116-118 [104 P.2d 555].
The Neal court discussed the differences between section 499b and former Vehicle Code section 503, the predecessor of Vehicle Code section 10851. The Neal court stated that "specific intent is not an element in the violation of [section 499b]." (Neal, supra, 40 Cal. App.2d at p. 118.) This position was abrogated in Barrick, supra, 33 Cal.3d at page 134.
The Bailey court stated that joyriding is a taking of a vehicle with the purpose not to deprive the owner of use or possession, but to temporarily use or operate the vehicle. According to Bailey, joyriding is committed, among
The People assert that if the jury believed that Ivans took the vehicle, it could not reasonably have believed he did not intend to deprive the owner of possession. However, in Neal, the court held that evidence that the defendant stripped the car was properly admitted to show the intent to deprive the owner of possession; the taking and abandoning of the car did not necessarily furnish sufficient evidence of that intent. (Neal, supra, 40 Cal. App.2d at pp. 117-118.)
The People also argue that as a matter of law, a person who knows he is driving a stolen vehicle cannot fail to intend to deprive the owner of possession. His act of driving it ratifies the deprivation of possession, and he thus becomes an aider and abettor of the deprivation of the owner's possession. This position is contrary to Neal, which the People rely on for another purpose. (Neal, supra, 40 Cal. App.2d at pp. 117-118.) This position is also inconsistent with the California Supreme Court's discussion in Barrick concerning whether the evidence in that case supported an instruction on joyriding. (Barrick, supra, 33 Cal.3d at p. 135.)
The Barrick court evaluated whether the evidence in that case supported an instruction on joyriding: "The Attorney General argues that because the evidence in this case showed that the ignition switch in the victim's car had been substantially altered, a more serious offense than joyriding was shown. In our view, the evidence relating to the tampered ignition does not reflect on whether the defendant had the specific intent to deprive the owner of the possession of her car or a mere intent to use and operate the vehicle, but merely shows the method by which the automobile was taken." (Barrick, supra, 33 Cal.3d at p. 135.) The court thus concluded that it was error to fail to give the joyriding instruction. (Ibid.)
Marsden Hearing
The People assert that the trial court "made inquiry and listened to appellant's complaints." The record reveals otherwise; the court did not inquire into all of the reasons for Ivans's request, even though Ivans explicitly stated he had listed only some of his reasons. This was error under Marsden.
In People v. Lewis (1978) 20 Cal.3d 496, 499 [143 Cal.Rptr. 138, 573 P.2d 40], the court discussed whether failure to hold a complete inquiry is prejudicial: "`There can be no doubt it was. On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable
When, as here, a request for new counsel comes after trial, and the court fails to conduct a proper Marsden hearing, "[t]he appropriate course of action is to remand to the trial court to allow it to fully inquire into appellant's allegations concerning counsel's performance. Following the inquiry, if the trial court determines that defendant has presented a colorable claim of ineffective assistance, then the court must appoint new counsel to fully investigate and present the motion for new trial. If, on the other hand, the inquiry does not disclose a colorable claim, the motion for new trial may be denied and the judgment reinstated. [Citation.]" (People v. Winbush (1988) 205 Cal.App.3d 987, 992 [252 Cal.Rptr. 722].) We conclude such a procedure is appropriate in this case.
Driver's License
Ivans complains of the suspension of his driving privilege under Vehicle Code section 13350. The court's finding of use of a motor vehicle related to Ivans's conviction of a violation of Vehicle Code section 10851. Because we reverse his conviction on that count, the issue of the suspension of his driver's license is moot. That finding must be stricken.
Restitution Fine
The trial court imposed a total restitution fine of $23,000 ($10,000 each on counts 1 and 2 and $3,000 on count 3.)
DISPOSITION
Ivans's conviction of a violation of Vehicle Code section 10851 is reversed; the finding of motor vehicle use is ordered stricken; and the restitution fine is ordered stricken. In addition, the remainder of the judgment is reversed and the matter is remanded for the limited purpose of holding a hearing on Ivans's Marsden motion. If Ivans makes a prima facie showing of ineffective assistance of counsel, the court is directed to appoint new counsel for the purpose of bringing a motion for new trial. If Ivans fails to make a
Ramirez, P.J., and Hollenhorst, J., concurred.
FootNotes
"If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether defendant had such [specific intent] [mental state].
"If from all the evidence you have a reasonable doubt whether the defendant formed such [specific intent] [mental state[s]], you must find that [he] [she] did not have such [specific intent] [mental state[s]]."
As Barrick points out, the manner in which the auto theft is charged may determine whether instructions on the joyriding statute (§ 499b) are required to be given as a lesser included offense of Vehicle Code section 10851. (Barrick, supra, 33 Cal.3d at p. 133.)
In addition to the three statutes described in People v. Thomas (1962) 58 Cal.2d 121, 125 [23 Cal.Rptr. 161, 373 P.2d 971], the Legislature in 1989 added section 499b.1. This gives the prosecutor greater latitude in charging an auto theft. However, it exacerbates the problem facing a trial judge in preparing appropriate jury instructions in a given case.
It is our suggestion that the Legislature should revisit the auto theft statutes and consider repeal, amendment or enactment of corrective legislation of these confusing statutes. Conceivably, one auto theft statute would suffice to cover the crime in California.
"THE DEFENDANT: For the record, your Honor, for good cause and justification, I wish to have new counsel appointed. My counsel is not competent. He won't file my motion for new trial. It was brought to my attention that evidence was removed from the jury room. It's my understanding that the most time I was to receive is fourteen years. Those are some of the grounds.
"[Defense counsel]: My client is upset.
"THE COURT: Mr. Ivans, number one, [defense counsel] represented you in my opinion in a very effective manner. Number two — your motion will be denied on that ground.
"Number two, the fact of the matter is Exhibit No. 1, for the record, is a diagram of the crime scene. And it is true, in fact, that Exhibit No. 1 ... was taken by a juror after the end of the trial.
"[The prosecutor]: After the verdict.
"THE COURT: After the verdict. Apparently it was left hanging up in the jury room and he took it home with him. It was brought to our attention the following morning that the exhibit was missing. That exhibit is a diagram of the scene which was adequately and totally talked about by witnesses, described on the record, photographs were admitted.
"In any event, that exhibit was searched for, extensive search was done, and a day later the juror brought the exhibit back to the court. It was located, brought back, and it appeared to be in an untampered condition.
"In fact, he was going to throw it away, I guess, and retrieved it, and it's there. It's not something that is an item of physical evidence, like drugs, or anything else that could be altered in any way. It's a diagram, appears to be unmarked except for the markings in the court, and frankly no major motion on that ground was proposed. And I deny it on that ground. There's no denial of due process or anything else. It temporarily was taken by a juror and brought back to the court after the verdict.
"[The prosecutor]: As to the allegation about the fourteen years, I think our record should reflect that fourteen years was offered to Mr. Ivans as a plea bargain and he was soundly advised regarding that offer and he rejected it.
"THE COURT: That's correct. I'm sure the record will reflect that, because it was talked about before the trial. And I thought in my opinion that was a fairly generous offer in the case. We had discussions about it. That was our pretrial offer. He rejected it and he went to trial. That's what happens at times. You weigh the risk of going to trial.
"[The prosecutor]: And he had conferred with his attorney and I think another attorney regarding that offer.
"THE COURT: I don't find any grounds for your motion. You've got a record here for the court of appeal. So if those are your grounds for new trial, each and every one of those motions are denied for the reasons just stated." (Italics added.)
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