The California Jury Instructions (CALCRIM 581) define the crime of voluntary manslaughter as follows:
To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence);AND

2. The defendant’s acts caused the death of another person.
[The People allege that the defendant committed the following crime[s]: _________________ <insert misdemeanor[s]/infraction[s])/non-inherently dangerous (felony/felonies)> .  Instruction[s] _________________ tell[s] you what the People must prove in order to prove that the defendant committed _________________ <insert misdemeanor[s]/infraction[s])/ non-inherently dangerous (felony/felonies)> .]  [The People [also] allege that the defendant committed the following lawful act[s] with criminal negligence: _________________ <insert act[s] alleged> .]   [ Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;AND

2. A reasonable person would have known that acting in that way would create such a risk.
In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.]  [An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.]          [There may be more than one cause of death.

An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.]

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.      [The People allege that the defendant committed the following (crime[s]/ [and] lawful act[s] with criminal negligence): _________________ <insert alleged predicate acts when multiple acts alleged> . You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged acts and you all agree on which act (he/she) committed.]

Millington said he did not take into account more than 270 e-mails and letters from cyclists that were filed with the court urging a tough sentence.

The July 4, 2008, crash also highlighted simmering tensions between cyclists and residents along Mandeville Canyon Road, the winding five-mile residential street where the crash took place.

One cyclist was flung face-first into the rear window of Thompson’s red Infiniti, breaking his front teeth and nose and cutting his face. The other cyclist slammed into the sidewalk and suffered a separated shoulder.

At his sentencing hearing at the county’s airport branch court, Thompson cited the Bible in urging cyclists and residents of Mandeville Canyon to try to resolve their differences peacefully.

“If my incident shows anything it’s that confrontation leads to an escalation of hostilities,” Thompson said.

Thompson, a former emergency room physician who described the crash as a terrible accident, testified during his trial last year that he and other Mandeville Canyon residents were upset that some cyclists rode dangerously and acted disrespectfully toward residents and motorists along the street, a popular route for bike riders.

On the day of the crash, Thompson said he was driving down the road on his way to work when several cyclists swore at him and flipped him off as he called on them to ride single file. He said he stopped his car to take a photo to identify the riders and never intended to hurt anyone.

But the cyclists said the doctor was acting aggressively from the start. They said he honked loudly from behind them and passed by dangerously close as they moved to ride single file before he pulled in front and braked hard.

A police officer told jurors that shortly after the crash that Thompson said he slammed on his brakes in front of the riders to “teach them a lesson.”

Prosecutors said Thompson had a history of run-ins with bike riders, including a similar episode four months before the crash when two cyclists told police that the doctor tried to run them off the road and braked suddenly in front of them. Neither of the riders was injured.

Jurors convicted Thompson in November of mayhem; assault with a deadly weapon, his car; battery with serious injury; and reckless driving causing injury.

“We have thoroughly reviewed the record of the proceedings in this matter as well as the allegations made by Polanski of serious misconduct by the original judge and a member of the district attorney’s office.  Even though the allegations, if ultimately found to be true, present a very significant systemic issue of injustice and misconduct, we cannot conclude that the trial court abused its discretion here in precluding Polanski from affirmatively seeking relief from the trial court until he submitted to its jurisdiction.  Contrary to Polanski’s argument, the trial court did not simply deny Polanski’s request for relief because of his status as a fugitive, without weighing any equitable factors.  To the contrary, the court exercised its discretion in reaching its conclusion, and its thoroughly considered ruling was in no respect arbitrary, capricious, or patently absurd.”

The Court of Appeal Finds the Availability of Legal Remedies Other than Flight

“Polanski argues that the trial court should be precluded from invoking the disentitlement doctrine to deny him relief today because his absence resulted from the original trial judge’s own misconduct in failing to abide by the sentencing agreement and threatening Polanski with additional incarceration coupled with illegal deportation conditions.  Even in light of our fundamental concern about the misconduct that has been alleged here with significant evidentiary support, flight was not Polanski’ s only option.  It was not even his best option.  From the record Polanski has provided to this court, at the time he fled Polanski knew what he needed to know to make a case for a violation of due process,  and at all times in this matter, he has had means at his disposal other than flight by which he could have obtained relief.”

The Court of Appeal lists the remedies available to him:

“Even now Polanski has remedies besides seeking a dismissal of the entire action from this court while remaining a fugitive.  While section 977, subdivision (b)(1) imposes a general requirement of personal appearance for sentencing in felony matters, section 1193 permits defendants to be sentenced in absentia when specific conditions are met.  Whether the offense is treated as a misdemeanor or a felony, Polanski could request to be formally sentenced in absentia.  Section 1193, subdivision (a) provides that when a defendant is convicted of a felony, “the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence . . .  Sentences for misdemeanors, of course, may be imposed in absentia without the satisfaction of any conditions.  (§ 1193, subd. (b).)  At sentencing, Polanski’s counsel could argue that the proper sentence is the time already served.

Polanski could also cooperate with the extradition process and return to California.  Once back in the jurisdiction, he could request that the trial court exercise its discretion to dismiss the prosecution in the interest of justice under section 1385.  Alternatively, as he had already fulfilled the terms of the agreed sentence he alleges, he could appear for the formal sentencing hearing from which he fled and ask the trial court to honor those sentencing provisions.  Potentially more expeditiously, upon his return he could immediately file a petition for writ of habeas corpus with a request for an immediate stay of all further sentencing proceedings.  While we neither claim an ability to predict the future nor purport to prejudge any matter for ourselves or for the trial court, the evidentiary showing that he has mustered in support of this petition would appear highly likely to merit both a stay and an immediate review of the propriety of any continued detention.  While Polanski most likely would have to incur some amount of custodial detention while his allegations were addressed—for it is difficult to envision a California court offering bail to a recently extradited long-standing fugitive with family and residence outside the country—if he would return to this jurisdiction it appears that he would soon thereafter be able to establish a factual record of, and obtain all appropriate relief for, the very serious misconduct that it appears may have occurred here.

Polanski is not without any remedy.  He is only without the remedy that he prefers:  complete release not only from any threat of future punishment, but also from the very charges themselves—despite the fact that no misconduct has been alleged impacting the validity or voluntariness of Polanski’s plea to unlawful sexual intercourse—and all without ever having to subject himself to the jurisdiction of the court.”

The Court of Appeal concludes:

“While we agree with Polanski’s contention that the gravity and constitutional aspects of his allegations matter greatly in this analysis and that when “a fugitive defendant seeks to vindicate a right vouchsafed by the United States Constitution, the Court should give weight to this factor in determining how to exercise its discretion” (Veliotis, supra, 586 F.Supp. at p. 1515), the responsibility of a court considering whether to apply the disentitlement doctrine remains to balance the many equitable concerns and to reach a decision based on the totality of the circumstances.  (Van Cauwenberghe, supra, 934 F.2d at pp. 1054-1055.)  Here, the seriousness of the misconduct that Polanski alleges played a role in his decision to flee clearly weighs against disentitlement, but the traditional justifications for the doctrine, Polanski’s refusal to accept relief offered in the past, and the fact that he has always had legitimate alternatives to flight all weigh in favor of applying disentitlement here and support the trial court’s ruling.  Considering the totality of circumstances in reviewing the trial court’s ruling on disentitlement, Polanski has not established that the trial court’s decision fell outside the bounds of reason under the law and the facts here.  (Giordano, supra, 42 Cal.4th at p. 663.)  Whether or not we would have reached the same conclusion if we had been in the position of the trial court, we cannot say that the trial court’s decision was so irrational or arbitrary that no reasonable person could agree with it, nor may we substitute our judgment for that of the trial court.  (See, e.g., Carmony, supra, 33 Cal.4th at p. 377.)”

The Court of Appeal denies relief for Mr. Polanski:

“Polanski urges this court to override the trial court’s exercise of discretion and compel it to dismiss the prosecution.  We decline to do so for several reasons.
In the first instance, this court lacks a sufficient factual foundation to grant relief.  No factual findings have ever been made as to the allegations of misconduct in this case, and as an appellate tribunal we are not equipped to make the factual findings that would be necessary for us to determine whether relief was warranted.  What we have before us at this time is a set of declarations of judicial misconduct; a series of out-of-court statements in filmed interviews concerning judicial misconduct; and Wells’s interview detailing what appears to be his own unethical conduct.  Polanski asserts that the misconduct he has alleged is “undisputed,” but the record and briefing submitted to this court reveal that there are in fact disputes as to the underlying facts.  Judge Rittenband contradicted some of these statements in 1978 in his verified answer to Polanski’s disqualification papers, and Polanski’s communications with this court indicate that Wells may have recanted an unspecified number of his statements made in his film interview.  Without dismissing or diminishing the allegations made here, at this point they remain allegations, and we lack a factual foundation that would permit us to offer the immediate dismissal relief that Polanski seeks.  We cannot exercise our discretion on the basis of facts that no court has found.

Moreover, even if we were to accept all of Polanski’s misconduct allegations as if they were supported by factual findings and admissible evidence, it is not at all clear to us that the relief Polanski seeks from this court is the proper relief for the misconduct that he has alleged.  Polanski has claimed that all he is seeking is that we recognize that misconduct occurred and “provide him with the relief that he should have been given upon his release from prison over 30 years ago—conclusion of this prosecution without further threat of punishment” but the relief that he requests goes far beyond asking the courts to honor Judge Rittenband’s alleged 1977 commitment that the diagnostic study would constitute Polanski’s full punishment for unlawful sexual assault, presumably by a formal sentence to time served.  Instead, Polanski seeks a complete dismissal of the criminal prosecution against him under section 1385, and he asks us to compel that result by means of writ of mandate.  The effect of such a dismissal would be not only to bar any further prosecution or punishment for the crime, but also to entirely erase Polanski’s plea to unlawful sexual conduct.  He would “stand as if [he] had never been prosecuted” for the crime.  (People v. Simpson (1944) 66 Cal.App.2d 319, 329; see also Barro, supra, 93 Cal.App.4th at p. 67; People v. Superior Court (Flores), supra, 214 Cal.App.3d at p. 136 (Flores).)

Nothing in the record suggests that this is an appropriate result.  Polanski has not alleged any misconduct with  respect to the plea itself or at any point in the proceedings prior to the consideration of sentencing, and therefore has not established any reason for this court to nullify the criminal proceeding altogether.  “While irresponsible or overzealous conduct by government agents is not to be condoned, in the case of challenged conduct which occurred only after a plea of guilty and neither coerced nor induced that plea, it is not immediately apparent how there could have been prejudice to a defendant which would justify withdrawal of the plea or dismissal.”  (People v. Shaw (1989) 210 Cal.App.3d 859, 865 (Shaw).)  In the cases on which Polanski relies to support his request for outright dismissal, Boulas v. Superior Court (1986) 188 Cal.App.3d 422 (Boulas) and Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 (Morrow), the prosecutorial misconduct occurred before trial, impacted the integrity of the entire criminal proceeding, and could not be adequately remedied by any order short of dismissal.

Here, in contrast, except for one media statement in June 1977 all the malfeasance is alleged to have occurred post-plea, and therefore there appears to be no basis for this court to conclude that the process by which the determination of Polanski’s guilt was made was compromised in any way.  Polanski, in short, has not shown that this court, on this record, should overturn his apparently untainted conviction for unlawful sexual assault because of misconduct occurring after he pleaded guilty to that offense.
Furthermore, Polanski seeks a writ of mandate, but a writ of mandate is only proper when the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law.  (Code Civ. Proc., § 1086.)  Here, Polanski has not demonstrated that he is without such a remedy in the ordinary course of law.  Polanski asked the trial court to apply section 1385 to conduct a hearing on his very serious allegations of misconduct that implicate due process in his criminal matter.  Having no legal standing to make a motion under the express terms of section 1385, Polanski necessarily had to request the court to grant that hearing on its own motion, and ultimately the court declined to exercise its discretion to grant that evidentiary hearing because of Polanski’s fugitive status.  But this does not mean that Polanski has no other tools at his disposal to obtain the evidentiary hearing that he seeks and to make a record of, and obtain factual findings on, his evidence of judicial and prosecutorial misconduct.

Without returning to the United States or dropping his battle against extradition, Polanski may, through counsel, request that the trial court conduct the never-yet-held sentencing hearing in absentia pursuant to section 1193.  If the trial court approves this request, then Polanski, through his counsel, will be able to obtain the evidentiary hearing that is so urgently required to establish the facts of what occurred in 1977 and 1978.  The trial judge now presiding over the matter, Judge Espinoza, has already indicated that at a sentencing hearing Polanski would be able to fully litigate the allegations of misconduct and a prior pledge by Judge Rittenband as to Polanski’s punishment:  At the same hearing at which Judge Espinoza ruled that he would not entertain Polanski’ s section 1385 request, he also stated, “[H]aving reviewed all of the evidence in this case, notwithstanding the People’s assertion that the misconduct that occurred is still in dispute, there was substantial, it seems to me, misconduct that occurred during the pendency of the case which will be among the many factors that would be considered by me and any other court that would sentence Mr. Polanski.  He had a plea agreement with Judge Rittenband.  Unfortunately, Judge Rittenband is long since deceased, but the terms and conditions of that plea agreement are well known.”  While Judge Espinoza has expressed the view that Polanski is required by section 977 and the bench warrant to be present at any proceeding regarding his case, on this record it does not appear that he has ever been asked to release Polanski from that obligation, as he is authorized to do by section 1193.  Because Polanski possesses a means to seek an evidentiary hearing on his allegations of prosecutorial and judicial misconduct, he has not demonstrated that he is without any remedy in the ordinary course of the law.”

The Court of Appeal outlines the relief available to Mr. Polanski:

“Even without appearing in California courts Polanski may request to be sentenced in absentia.  (§ 1193.)  While the trial court would have to consent to this request, if it agreed, this would resolve the disentitlement problem that Polanski has encountered in the trial court and would afford him the evidentiary hearing that he so urgently seeks to support his allegations of misconduct.  Judge Espinoza has already indicated on the record his opinion that the misconduct alleged by Polanski and the issue of the original trial court’ s sentencing commitment are relevant to and may be explored at a sentencing hearing.  Polanski, therefore, still holds in his hands the potential means to hold the trial court to the commitment it allegedly made to him in 1977.  As we have expressed elsewhere in this opinion, if Polanski presents admissible evidence leading the trial court to conclude that Judge Rittenband committed to the diagnostic study as Polanski’s entire punishment, it is difficult to imagine that the trial court would not honor that commitment today.

Alternatively, or if a request for sentencing in absentia is denied, Polanski could return to California. . . [R]eturning to the jurisdiction would permit Polanski to obtain the evidentiary hearing he seeks through a section 1385 request or at a sentencing hearing.  Upon a return to custody, Polanski would also be able to seek relief by means of petition for habeas corpus.  Whatever avenues he may pursue, Polanski’s return would enable him to present admissible evidence of judicial and prosecutorial misconduct and to finally conclude the criminal proceedings that have languished these many years.”

USSC Case No. 08-680.

Oral Argument Date:  Oct 5 2009

In the groundbreaking case of Miranda v. Arizona, the United States Supreme Court held that police officers must inform suspects of their right to remain silent, to consult with an attorney, to have an attorney present during questioning, and to have an attorney appointed if they cannot afford one. The Miranda opinion also noted that “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”

In the subsequent case of Edwards v. Arizona, the Supreme Court addressed a cognate question: What happens when a police officer reads a suspect a Miranda warning, but still asks questions after the suspect invokes the right to counsel? In Edwards, the Court held that statements made in response to such questioning are inadmissible at trial.

This fall, the Supreme Court will revisit the Miranda-Edwards line of case in Maryland v. Shatzer. Mr. Shatzer, the respondent in this case, was serving a prison sentence on an unrelated crime when a detective first interviewed him. When the detective read Mr. Shatzer his Miranda rights, Mr. Shatzer responded that he wanted an attorney present while the detective asked him questions. The detective wrote in his report, “When I attempted to again initiate the interview, he told me that he would not talk about this case without having an attorney present.” The detective then terminated the interview and closed the case. Two years and seven months later, though, a different detective conducted a follow-up investigation. That detective read Mr. Shatzer his Miranda rights and then — without allowing Mr. Shatzer any access to an attorney — interrogated him. Mr. Shatzer then confessed that he had committed a crime.

At trial, Mr. Shatzer argued that his confession was inadmissible, because the second detective obtained it in violation of Edwards. But in Edwards, only a day had elapsed between the suspect’s invocation of the right to counsel and the second interrogation. In contrast, two years and seven months had elapsed between Mr. Shatzer’s invocation of the right to counsel and the second interrogation. Moreover, while the suspect in Edwards was in continuous police custody between the first and second interrogation, Mr. Shatzer was not. Mr. Shatzer, though, was in prison for that entire period.

Mr. Shatzer’s Supreme Court case presents two important questions about the application of Edwards. First, is Edwards a bright-line rule that applies regardless of the amount of time that elapses between a suspect’s invocation of the right to counsel and any subsequent interrogation? Second, is Edwards a bright-line rule that applies regardless of whether the suspect has been in continuous police custody between the invocation of the right to counsel and any subsequent interrogation?

In its Supreme Court brief, Maryland argues that rather than treat Edwards as a bright-line rule, the Supreme Court should construe as rebuttable the Edwards presumption of coercion:

Excluding a statement made under circumstances where there has been a break in custody and a significant passage of time, followed by an effective Miranda advisement and the suspect’s voluntary election to talk with police without counsel present, would expand Edwards beyond its intended purpose. Where, as here, there is no reasonable likelihood of badgering, the Edwards presumption of coercion should terminate.

Not surprisingly, Mr. Shatzer disagrees. In his Supreme Court brief, he argues that a bright-line Edwards rule is easy for police officers, lawyers, and judges to apply. In contrast, permitting reinterrogation after some indeterminate break in time or custody will require police officers, lawyers, and judges to make difficult, case-by-case, fact-specific inquiries that will ultimately lead to arbitrary results:

The bright-line rule of Edwards benefits the courts in that it conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms. Trial judges called upon to ensure compliance with the requirements of Miranda and Edwards are best served by a bright-line rule. Prior to the decision in Edwards, courts engaged in a case-by-case analysis of whether a waiver of the right to counsel by a person who had previously invoked it was knowing, voluntary, and intelligent.  [Maryland's] approach would require a return to the case-by-case analysis which undermines the benefit of a rule allowing police officers, prosecutors and trial judges to readily determine the admissibility of statements made during custodial interrogation.

Heinous pictures and videos can be deposited on computers by viruses — the malicious programs better known for swiping your credit card numbers. In this twist, it’s your reputation that’s stolen.

Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they’ll get caught. Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites.

Whatever the motivation, you get child porn on your computer — and might not realize it until police knock at your door.

An  investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus. It can cost victims hundreds of thousands of dollars to prove their innocence.

Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.

“It’s an example of the old `dog ate my homework’ excuse,” says Phil Malone, director of the Cyberlaw Clinic at Harvard’s Berkman Center for Internet & Society. “The problem is, sometimes the dog does eat your homework.”

The  investigation included interviewing people who had been found with child porn on their computers. The AP reviewed court records and spoke to prosecutors, police and computer examiners.

One case involved Michael Fiola, a former investigator with the Massachusetts agency that oversees workers’ compensation.

In 2007, Fiola’s bosses became suspicious after the Internet bill for his state-issued laptop showed that he used 4 1/2 times more data than his colleagues. A technician found child porn in the PC folder that stores images viewed online.

Fiola was fired and charged with possession of child pornography, which carries up to five years in prison. He endured death threats, his car tires were slashed and he was shunned by friends.

Fiola and his wife fought the case, spending $250,000 on legal fees. They liquidated their savings, took a second mortgage and sold their car.

An inspection for his defense revealed the laptop was severely infected. It was programmed to visit as many as 40 child porn sites per minute — an inhuman feat. While Fiola and his wife were out to dinner one night, someone logged on to the computer and porn flowed in for an hour and a half.

Prosecutors performed another test and confirmed the defense findings. The charge was dropped — 11 months after it was filed.

The Fiolas say they have health problems from the stress of the case. They say they’ve talked to dozens of lawyers but can’t get one to sue the state, because of a cap on the amount they can recover.

“It ruined my life, my wife’s life and my family’s life,” he says.

The Massachusetts attorney general’s office, which charged Fiola, declined interview requests.

At any moment, about 20 million of the estimated 1 billion Internet-connected PCs worldwide are infected with viruses that could give hackers full control, according to security software maker F-Secure Corp. Computers often get infected when people open e-mail attachments from unknown sources or visit a malicious Web page.

Pedophiles can tap viruses in several ways. The simplest is to force someone else’s computer to surf child porn sites, collecting images along the way. Or a computer can be made into a warehouse for pictures and videos that can be viewed remotely when the PC is online.

“They’re kind of like locusts that descend on a cornfield: They eat up everything in sight and they move on to the next cornfield,” says Eric Goldman, academic director of the High Tech Law Institute at Santa Clara University. Goldman has represented Web companies that discovered child pornographers were abusing their legitimate services.

But pedophiles need not be involved: Child porn can land on a computer in a sick prank or an attempt to frame the PC’s owner.

In the first publicly known cases of individuals being victimized, two men in the United Kingdom were cleared in 2003 after viruses were shown to have been responsible for the child porn on their PCs.

In one case, an infected e-mail or pop-up ad poisoned a defense contractor’s PC and downloaded the offensive pictures.

In the other, a virus changed the home page on a man’s Web browser to display child porn, a discovery made by his 7-year-old daughter. The man spent more than a week in jail and three months in a halfway house, and lost custody of his daughter.

Chris Watts, a computer examiner in Britain, says he helped clear a hotel manager whose co-workers found child porn on the PC they shared with him.

Watts found that while surfing the Internet for ways to play computer games without paying for them, the manager had visited a site for pirated software. It redirected visitors to child porn sites if they were inactive for a certain period.

In all these cases, the central evidence wasn’t in dispute: Pornography was on a computer. But proving how it got there was difficult.

Tami Loehrs, who inspected Fiola’s computer, recalls a case in Arizona in which a computer was so “extensively infected” that it would be “virtually impossible” to prove what an indictment alleged: that a 16-year-old who used the PC had uploaded child pornography to a Yahoo group.

Prosecutors dropped the charge and let the boy plead guilty to a separate crime that kept him out of jail, though they say they did it only because of his age and lack of a criminal record.

Many prosecutors say blaming a computer virus for child porn is a new version of an old ploy.

“We call it the SODDI defense: Some Other Dude Did It,” says James Anderson, a federal prosecutor in Wyoming.

However, forensic examiners say it would be hard for a pedophile to get away with his crime by using a bogus virus defense.

“I personally would feel more comfortable investing my retirement in the lottery before trying to defend myself with that,” says forensics specialist Jeff Fischbach.

Even careful child porn collectors tend to leave incriminating e-mails, DVDs or other clues. Virus defenses are no match for such evidence, says Damon King, trial attorney for the U.S. Justice Department’s Child Exploitation and Obscenity Section.

But while the virus defense does not appear to be letting real pedophiles out of trouble, there have been cases in which forensic examiners insist that legitimate claims did not get completely aired.

Loehrs points to Ned Solon of Casper, Wyo., who is serving six years for child porn found in a folder used by a file-sharing program on his computer.

Solon admits he used the program to download video games and adult porn — but not child porn. So what could explain that material?

Loehrs testified that Solon’s antivirus software wasn’t working properly and appeared to have shut off for long stretches, a sign of an infection. She found no evidence the five child porn videos on Solon’s computer had been viewed or downloaded fully. The porn was in a folder the file-sharing program labeled as “incomplete” because the downloads were canceled or generated an error.

This defense was curtailed, however, when Loehrs ended her investigation in a dispute with the judge over her fees. Computer exams can cost tens of thousands of dollars. Defendants can ask the courts to pay, but sometimes judges balk at the price. Although Loehrs stopped working for Solon, she argues he is innocent.

“I don’t think it was him, I really don’t,” Loehrs says. “There was too much evidence that it wasn’t him.”

The prosecution’s forensics expert, Randy Huff, maintains that Solon’s antivirus software was working properly. And he says he ran other antivirus programs on the computer and didn’t find an infection — although security experts say antivirus scans frequently miss things.

“He actually had a very clean computer compared to some of the other cases I do,” Huff says.

The jury took two hours to convict Solon.

“Everybody feels they’re innocent in prison. Nobody believes me because that’s what everybody says,” says Solon, whose case is being appealed. “All I know is I did not do it. I never put the stuff on there. I never saw the stuff on there. I can only hope that someday the truth will come out.”

But can it? It can be impossible to tell with certainty how a file got onto a PC.

“Computers are not to be trusted,” says Jeremiah Grossman, founder of WhiteHat Security Inc. He describes it as “painfully simple” to get a computer to download something the owner doesn’t want — whether it’s a program that displays ads or one that stores illegal pictures.

It’s possible, Grossman says, that more illicit material is waiting to be discovered.

“Just because it’s there doesn’t mean the person intended for it to be there — whatever it is, child porn included.”

Source

The Constitution prohibits shielding prosecutors who, well in advance of trial, fabricate evidence in order to frame innocent citizens.

Pottawattamie County, IA v. McGhee (08–1065) | LII / Legal Information Institute

Oral argument: Nov. 4, 2009

Question presented

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.

Issue

Can a prosecutor who knowingly procures false testimony and introduces such testimony at trial be subject to a §1983 civil suit?

Facts

In 1978, Petitioners Joseph Hrvol and David Richter obtained convictions and life sentences against Respondents Curtis McGhee and Terry Harrington for the murder of retired police captain John Schweer in Council Bluffs, Iowa the previous year. See McGhee v. Pottawattamie County, 547 F.3d 922, 925 (8th Cir. 2008). Although police attention initially focused on Charles Gates, a man identified by two witnesses as being near the scene with “a shotgun and a dog,” Hrvol and Richter soon turned their attention to McGhee and Harrington. See id. at 926. The foundation of their case against McGhee and Harrington was 16-year-old Kevin Hughes. See id. Hughes, who already had a lengthy criminal record, was facing charges for stealing a Cadillac and possible involvement in the Schweer murder. See id. Detectives offered not to charge Hughes for the murder and drop the laundry list of other criminal charges against him and held out the possibility of his recovering a $5,000 reward for information regarding the Schweer murder if he cooperated in the investigation. See id. at 927. Hughes agreed. See id.

Investigators quickly discovered Hughes’s unreliability after he twice definitively implicated two men whom police investigation proved innocent; nevertheless, Hrvol and Richter viewed Hughes as the key to the Schweer murder investigation. See McGhee v. Pottawattamie County, 547 F.3d 922, 927 (8th Cir. 2008). McGhee and Harrington allege that the prosecutors pressured Hughes to incriminate them. See id. Thus, even though Hughes had initially stated that he did not think they were involved, Hughes subsequently implicated McGhee and Harrington in a series of stories that continued to prove inaccurate. See id. With evidence centering on the testimony of Hughes, his friends and criminal associates, and jailhouse informants, Hrvol and Richter brought murder charges against McGhee and Harrington. See id. After their convictions in separate trials, McGhee and Harrington received life sentences. See id.

In 2002, the Iowa Supreme Court overturned McGhee and Harrington’s convictions on post-conviction relief due to the prosecutors’ failure to provide defense counsel with exculpatory information, including the initial investigation into Gates and the full nature of Hughes’s statements to police. See McGhee, 547 F.3d at 925. The Iowa Supreme Court found that the prosecutors committed a due process violation under the Supreme Court’s decision in Brady v. Maryland. See id. Prosecutors chose not to retry Harrington, and McGhee made an Alford plea in exchange for a sentence of time served. See id. McGhee and Harrington were free after over 25 years in prison. See Brief for Respondents, Curtis McGhee and Terry Harrington at 14.

Respondents McGhee and Harrington sued Pottawattamie County and prosecutors Hrvol and Richter under 42 U.S.C. §1983, a statute creating a cause of action for victims of constitutional violations. See Brief for Respondents at 14. McGhee and Harrington allege in their complaint that Hrvol and Richter knowingly coerced false testimony from Hughes, his friends, and the jailhouse informants, and knowingly introduced perjured testimony at trial. See id. The district court rejected the prosecutors’ claims of absolute immunity, finding fabrication of evidence prior to trial to be a due process violation. See McGhee, 547 F.3d at 928. The Eighth Circuit Court of Appeals affirmed the district court’s ruling. See id. The Eighth Circuit interpreted Supreme Court precedent as providing absolute immunity for Hrvol and Richter’s acts during trial but not for pre-trial investigatory acts. See id. at 932-33. Additionally, the Eighth Circuit found that the prosecutors’ alleged actions in coercing testimony from Hughes and other informants qualified as investigatory. See id. at 932-33. Pottawattamie County, Hrvol, and Richter appealed to the Supreme Court, which granted certiorari on April 20, 2009. See Docket No. 08-1065.

Discussion

The parties disagree as to the extent to which prosecutors should be liable for allegedly violating defendants’ substantive due process rights in preparation for trial. See Brief for Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter; Brief for Respondents, Curtis McGhee and Terry Harrington. Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter (collectively, “the County”), argue that prosecutors should enjoy absolute immunity and never be liable. See Brief for Petitioners. Conversely, Respondents, Harrington and McGhee, argue that prosecutors should at most enjoy qualified immunity and only sometimes be liable. See Brief for Respondents.

The County and the prosecutors recognize that providing prosecutors with absolute immunity may “leave victims of egregious prosecutorial misconduct without a remedy.” Brief for Petitioners at 19 (citing Michaels v. McGrath, 531 U.S. 1118, 1119 (2001)). They nevertheless advocate for the application of absolute immunity for prosecutors, noting that the Supreme Court has continuously upheld its underlying rationales. See id. Specifically, the County asserts that the Supreme Court has repeatedly deemed absolute prosecutorial immunity a necessary evil, given that it protects prosecutorial independence, discourages meritless claims, and prevents relitigation of criminal appeals. See id. (citing Van de Kamp v. Goldstein, 129 S. Ct. 855, 859 (2009)).

State governments across the country support the County’s position in favor of absolute immunity. See Brief of Amici Curiae the States of Colorado, et al. in Support of Petitioners. The United States also supports the County. See Brief of Amicus Curiae the United States in Support of Petitioners. Although the United States condemns the prosecutors’ alleged actions, if true, as “execrable” and “a complete breach of the public trust,” it foresees negative practical implications of allowing suits against prosecutors for pretrial misconduct. See id. at 5; Brief of Amici Curiae the National Association of Assistant United States Attorneys, et al. (“Assistant United States Attorneys”) in Support of Petitioners at 3. In particular, the United States fears that allowing such suits would expose prosecutors to expensive, frivolous litigation. See Brief of Assistant United States Attorneys at 4. The County warns that allowing such suits would lead to “the chilling of the essential exercise of wholly constitutional efforts to prosecute criminal defendants.” See id. at 4. The United States stresses that allowing a cause of action against the type of conduct alleged here would amount to a “subversion” of the principles of prosecutorial immunity, which promote prosecutorial confidence and prevent the diversion of prosecutorial resources to defending civil suits. See Brief of the United States at 5.

Respondents McGhee and Harrington contest the notion that allowing a cause of action under the specific facts of this case would open the floodgates of litigation against prosecutors. See Brief for Respondents at 50. They opine that the extremity of the acts at issue here will protect against an onslaught of “easy-to-allege but hard-to-prove” claims. See Brief for Respondents at 50–51.

They maintain that even if the specific facts of the current case are insufficient to safeguarded against frivolous § 1983 claims, the Court’s new heightened pleading standard under Ashcroft v. Iqbal reduces or eliminates the concern of overexposing prosecutors to meritless litigation. See id. Under Ashcroft v. Iqbal, § 1983 claims must be plead with sufficient facts to state a facially plausible claim. See id. McGhee and Harrington contend that only plaintiffs able to provide plausible facts in the first instance are entitled to bring suit. See id.

In support of McGhee and Harrington is the organization Black Cops Against Police Brutality (“BCAPB”), which represents both the interests of law enforcement and African-Americans. See Brief of Amicus Curiae Black Cops Against Police Brutality in Support of Respondents. BCAPB contends that there is no reason to hold prosecutors conducting investigations to a lower standard than police officers conducting the same. See id. at 34-36. It cautions that racial undertones hide beneath the surface of this case given the wrongful conviction of black defendants in a primarily white county by white prosecutors. See id. at 6-16. BCAPB contends that the Court, in making its decision, should take the history of prosecutorial misconduct driven by racial motivations into account. See id.

Analysis

Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter (collectively, “the County”), urge the Court to reverse the lower court decision and to hold that the doctrine of absolute immunity shields them from Respondents’ 42 U.S.C. §1983 claims. See Brief for Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter at 5–7. Respondents, Terry Harrington and Curtis McGhee, however, urge the Court to affirm the lower court decision, and find that neither absolute nor qualified immunity shields the County from suit. See Brief for Respondents, Curtis McGhee and Terry Harrington at 18.
Absolute v. Qualified Immunity

Absolute immunity is an unconditional protection from suit — even where there is definitive proof of unconstitutional activity. See Imbler v. Pachtman, 424 U.S. 409, 424 (1976). A prosecutor, for example, is absolutely immune from suit for initiating a prosecution and presenting the State’s case at trial. See id. at 430. Qualified immunity, on the other hand, allows a person to bring suit against a government official who violates his or her “clearly established” constitutional rights. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). A government official who intentionally fabricates evidence for the purpose of depriving a person of his or her liberty violates a “clearly established” constitutional right to due process. See Zahrey v. Coffey, 221 F.3d 342, 344, 349 (2d Cir. 2000).

The differences between qualified and absolute immunity are particularly important in this case. See Brief for Petitioners; Brief for Respondents. The difference between absolute and qualified immunity in this case is really a difference between protection from suit and no protection at all. See Brief for Respondents at 28.
Should the application of absolute or qualified immunity depend on whether the governmental actor is a prosecutor or a police officer?

Harrington and McGhee argue that since Hrvol and Richter, like police officers, engaged in unconstitutional conduct during the investigative phase of the criminal process, they, like police officers, are eligible only for qualified immunity. See Brief for Respondents at 30. They assert that, “the conduct, not the identity, of the state actor, drives the constitutional analysis.” See id. at 28. They argue that the fabrication of evidence by any governmental actor violates the Constitution. See id. They emphasize that the Court should not treat Hrvol and Richter any differently than police officers who fabricate evidence. See id. at 27. They argue, “petitioners stand or fall with the police officers with whom they worked side-by-side and conspired. All are liable; none is immune.” See id. In advancing this argument, they cite Pyle v. Kansas, in which the Court held that police officers who fabricate evidence and deliver it to a prosecutor for use at trial violate the Due Process Clause. See id. at 28.

The County agrees that the nature of the conduct in question, rather than the identity of the state actor, drives the constitutional question. See Brief for Petitioners at 21. It adds, however, that “the principle that pre-trial acts do not acquire absolute immunity simply because a prosecutor performs them is intended to assure that plaintiffs may recover for a prosecutor’s constitutional torts that produce injuries outside the judicial process.” See id. at 21. It maintains that absolute immunity should apply to any pretrial conduct occurring within the scope of a prosecutor’s professional role in the judicial process. See id. It emphasizes that in this case, Harrington and McGhee’s complaints relate to a trial injury—wrongful conviction based on perjured testimony. See id. at 20. As such, it argues, absolute immunity bars Harrington and McGhee’s claims regarding any prosecutorial pretrial conduct that led to that wrongful conviction. See id. at 22.
Did the alleged constitutional injury occur pretrial?

In support of their position in favor of absolute immunity, the County argues that McGhee and Harrington suffered no constitutional injury outside of trial. See Brief for Petitioners at 9. The County argues that it is the use at trial of perjured testimony to obtain a conviction that constitutes constitutional injury—not the antecedent act of procuring the false testimony. See id. As such, it argues that the County enjoys absolute immunity from suit for any constitutional injury Harrington and McGhee suffered. See id. In support of this position, the County stresses Chavez v. Martinez, in which the Court held that eliciting a false confession does not violate the Fifth Amendment until that confession is introduced at trial. See id. at 10.

Conversely, Harrington and McGhee contend that constitutional injury occurs when a government official intentionally fabricates evidence to frame a citizen, regardless of whether there is a resulting conviction. See Brief for Respondents at 24-25. They state that the County’s contention that no constitutional injury occurs until a prosecutor uses fabricated testimony to obtain a conviction “confuses the constitutional violation with its effect.” See id. at 25. Harrington and McGhee contend that Hrvol and Richter’s fabrication of evidence violated their due process rights “long before trial or conviction.” See id. at 26.
If alleged constitutional injury occurred pretrial, does absolute immunity or qualified immunity apply?

In Buckley v. Fitzsimmons, the Court rejected “the extreme position” that absolute immunity only applies “to the act of initiation itself and to the conduct occurring in the courtroom.” See Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993). The Court held that absolute immunity can apply to a prosecutor’s preparations for the initiation of judicial proceedings or for trial. See id. The Court stated that in determining whether government officials enjoy absolute immunity, courts should apply a “functional approach” test, which “looks to the nature of the function performed.” See id. at 269. The Court ruled that prosecutors enjoy absolute immunity for conduct “intimately associated with the judicial phase of the criminal process.” See id. at 270.

In light of Buckley, the County and McGhee both agree that Hrvol and Richter are absolutely immune from suit for alleged prosecutorial misconduct occurring after the formal filing of charges and during trial. See Brief for Petitioners at 12. They disagree, however, as to what protection, if any, Hrvol and Richter enjoy for their investigative actions before the formal filing of charges and before trial. See Brief for Petitioners at 25; Brief for the Respondents at 32.

The County argues that even if Hrvol and Richter coerced false testimony before formally filing charges against McGhee, they are absolutely immune from suit because they acted in anticipation of what would be persuasive to the trier of fact at trial. See Brief for Petitioners at 25. Any constitutional violation, they argue, occurred in preparation for initiation of a prosecution or judicial proceeding. See id. at 24-25. Characterizing Hrvol and Richter’s pre-trial acts as absolutely immunized because of their direct connection to a prosecutor’s conduct of a trial, the County contends that Harrington and McGhee fail to state a cause of action that may proceed under § 1983. See id. at 9.

Harrington and McGhee assert that Hrvol and Richter’s investigations occurred “long before” they can plausibly claim that they were preparing for judicial proceedings. See Brief for Respondents at 32. They characterize the prosecutors’ alleged unconstitutional conduct as occurring “pre-probable-cause.” See id. at 32. In addition, they allege that rather than acting in the course of their professional roles as advocates for the State, Hrvol and Richter acted in their personal capacities. See id. at 32-33. Specifically, Harrington and McGhee allege that Hrvol investigated alongside the police “long before he was assigned the case for prosecution purposes.” See id. Additionally, Harrington and McGhee allege that Richter’s motivations were political, as he was “no doubt aware of the importance of solving the crime to his election effort.” See id. at 32.

While the parties disagree as to how to distinguish prosecutorial pretrial misconduct intimately connected with the trial versus misconduct attenuated from judicial proceedings, they agree that use of fabricated evidence at trial does not automatically absolutely immunize a prosecutor from suit for the procurement of the fabricated evidence pretrial. See Brief for Petitioners at 21; Brief for Respondents at 38. The County argues that a prosecutor’s absolute immunity in judicial proceedings does not retroactively shield him or her suit for pretrial investigative or administrative work unconnected to the judicial proceedings. See Brief for Petitioners at 21. Likewise, Harrington and McGhee state that a prosecutor who falsifies evidence for the purpose of framing an innocent man cannot “grant himself absolute immunity if, but only if, he takes the further unconstitutional step of introducing the fabricated evidence at trial.” Brief for Respondents at 35.

Conclusion

The outcome of this case will clarify the extent to which prosecutors are immune for violating defendants’ due process rights in obtaining a false conviction. Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter, argue that when prosecutors violate defendants’ due process rights in preparation for trial, common law, public policy, and Supreme Court precedent require affording them absolute immunity. Respondents, Terry Harrington and Curtis McGhee, argue that while absolute immunity may apply to violations that occur during trial, the Constitution prohibits shielding prosecutors who, well in advance of trial, fabricate evidence in order to frame innocent citizens.

Smith v. Superior Court 10/13/09 Case No. A124963 __ Cal.App.4th___

Defendant’s case gets continued several times over his objection and
without good cause. Court of Appeal dismisses case.

Filed 10/13/09
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DONALD SMITH,
Petitioner,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent;
THE PEOPLE,
Real Party in Interest.

A124763

(San Francisco City and County
Super. Ct. No. 207788)

Donald Smith (Smith) contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss.  We agree and will grant the requested relief.
I.  FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2009,  an information was filed, jointly charging Smith and Christopher Sims (Sims) with one felony count of first degree residential burglary (Penal Code, § 459).   Smith was arraigned on February 11, and his statutory right to trial within 60 days of that date (§ 1382) was not waived.  April 13 was calculated as the last day for trial.  The court was informed on April 10 that counsel for codefendant Sims was ill and unavailable for trial.  As to Smith, the court indicated its intent to sever or dismiss because the last day for trial was the following Monday, April 13.  However, the People argued that good cause existed to continue the case for both defendants and not affect a severance.

On April 13, the last statutory day for trial, the court was informed that Sims’s counsel remained ill and unavailable.  Counsel for Smith objected to any continuance as to his client.  The court, however, found good cause to continue the trial for both defendants, noting:  “Greenberger [v. Superior Court (1990) 219 Cal.App.3d 487 (Greenberger)] says essentially this is an issue [of] whether a joinder overrides defendant’s right to a speedy trial.  Greenberger says if the only reason to continue a case past the last day is to keep the cases joined, that’s not good cause under [section] 1382 . . . .  But another reason, like, for example, one of the attorneys needs more time to investigate, then — I’m going to interpret that as the situation here — where one attorney is ill and not able to come to court, that does constitute good cause to continue this past the last day for the codefendant, as well as the defendant, who is represented by the ill attorney.”  The court further indicated:  “Today is pretty much still the last day.  We will trail it day by day.  I have to find out what [Sims’s counsel’s] condition is, when he can be able to come back, and when he will be able to tell me:  Yes, I’m ready to go to trial. [¶] So I think the only safe thing to do is trail it day by day and put it over to the 14th.”
On April 14 and April 16, the court made further findings of good cause to continue the trial of both defendants, over Smith’s objection, due to the continuing unavailability of Sims’s attorney.  On April 17, Sims’s counsel appeared and stated that he anticipated being ready to try the case in a week.  The court found good cause for continuing the matter to April 22, again over Smith’s objection, but also indicated: “What we have to do, we have to be sure that I have counsel who’s available, in the sense of well enough to do it.  But then I will kick it to the last day, and I have to find a courtroom.”
On April 23, Sims’s counsel remained ill but told the court he would be ready to try the case on April 27.  The court stated:  “For the record, [Sims’s counsel] will be available and ready to try this and fully recovered on Monday, which means the last day for trial, according to case law, would be 10 days after Monday, April []27th. [¶] So by my calculations, May 7th would be the last day.”  Smith maintained his objection to further continuances.

On April 27, the court, without discussion and over Smith’s objection, “rolled” the case over until April 28.  The matter was recalled later that same day, when Smith’s counsel was not present, and the following exchange occurred on the record:
[THE PEOPLE]:  Can we recall one more matter?  Line 402.  It’s the Sims matter.  Mr. Lefcourt, can we put that matter over until the 28th?  It’s a no time waiver.  So I need some clarification on the record from [Sims’s counsel].

THE COURT:  Mr. Lefcourt, on Christopher Simms [sic] we rolled it over until tomorrow.  Ms. Lee needs clarification.
[THE PEOPLE]:  Well, it’s past the –
[SIMS’S COUNSEL]:  No.  No.
[THE PEOPLE]:  — last day.  I just want to –
THE COURT:  It’s not past the last day.
[SIMS’S COUNSEL]:  There was a ruling.  The last day is May 7th.
[THE PEOPLE]:  Okay.  As long as that’s clear.  [Smith’s counsel] has been objecting all this time on the codefendant matter.

THE COURT:  I have it listed as May 7th as the last day.
On April 28, Smith’s counsel moved to dismiss.  Although the record before us does not include an explicit ruling on the motion, the parties agree that the motion was denied.  After Smith filed the instant petition, we stayed the trial court proceedings against him and issued an order to show cause.

II.  DISCUSSION
In this case we are required to reconcile the legislatively expressed preference for joint prosecutions with the right of a defendant to a speedy trial.  We must interpret and apply the relevant provisions of section 1382, and consider the application and effect, if any, of section 1050.1, enacted by the voters in 1990 in Proposition 115.
“The right to a speedy trial is a fundamental right.  [Citation.]  It is guaranteed by the state and federal Constitutions.  (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)  The Legislature has also provided for ‘ “a speedy and public” trial as one of the fundamental rights preserved to a defendant in a criminal action.  (§ 686, subd. 1.)’  [Citation.]  To implement an accused’s constitutional right to a speedy trial, the Legislature enacted section 1382.  [Citation.] [¶] That section ‘constitutes a legislative endorsement of dismissal as a proper judicial sanction for violation of the constitutional guarantee of a speedy trial and as a legislative determination that a trial delayed more than [the prescribed period] is prima facie in violation of a defendant’s constitutional right.’  [Citation.]  Thus, an accused is entitled to a dismissal if he is ‘brought to trial’ beyond the time fixed in section 1382.  [Citation.]”  (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.)

Section 1382, provides, in relevant part:  “(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶] (1) When a person has been held to answer for a public offense and an information is not filed against that person within 15 days. [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information, or reinstatement of criminal proceedings . . . .  However, an action shall not be dismissed under this paragraph if either of the following circumstances exist: [¶] (A) The defendant enters a general waiver of the 60-day trial requirement.  A general waiver of the 60-day trial requirement entitles the superior court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial.  If the defendant, after proper notice to all parties, later withdraws his or her waiver in the superior court, the defendant shall be brought to trial within 60 days of the date of that withdrawal.  If a general time waiver is not expressly entered, subparagraph (B) shall apply. [¶] (B) The defendant requests or consents to the setting of a trial date beyond the 60-day period.  Whenever a case is set for trial beyond the 60-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.”  (Italics added.)  The statute therefore provides for a 10-day “grace period” when continuance beyond the 60-day felony limitation is attributable to “the defendant.”

Smith was not brought to trial within 60 days of his arraignment, and it is clear that Smith did not generally waive his speedy trial rights.  Smith consistently objected to continuances, and while Smith does not challenge the showing of good cause for the continuances to April 27, there was no attempt by the prosecution to show good cause to continue the trial beyond April 27.   The trial court assumed, and the People argue here, that dismissal was not compelled because the 10-day grace period to bring the matter to trial, provided to the People by section 1382, subdivision (a)(2)(B), automatically applied to an objecting defendant whose codefendant requested a continuance.  Smith contends that Sims’s requests for continuance may not be imputed to him.  Accordingly, the question is, since section 1382, subdivision (a)(2)(B) provides that the prosecution had the obligation to try Sims on April 27 or within 10 days thereafter (because Sims had requested continuances due to the unavailability of his counsel), does that same 10-day grace period applicable to Sims also apply to the trial of Smith?  We conclude that it does not.
A.    Standard of Review and Statutory Construction Principles
A trial court’s decision to grant a continuance for good cause is reviewed for abuse of discretion.  (People v. Memro (1995) 11 Cal.4th 786, 852–853; Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 645.)  However, statutory construction is a question of law that we review independently.  (People v. Love (2005) 132 Cal.App.4th 276, 284.)  To obtain pretrial relief, a defendant denied his or her statutory right to a speedy trial is not required to affirmatively show prejudice from the delay.  (Hollis v. Superior Court, supra, 165 Cal.App.3d at p. 645; People v. Wilson (1963) 60 Cal.2d 139, 151.)
The goal of statutory interpretation is to ascertain and effectuate the Legislature’s intent.  (People v. Standish (2006) 38 Cal.4th 858, 869.)  “ ‘In determining such intent, we begin with the language of the statute itself.  [Citation.]  That is, we look first to the words the Legislature used, giving them their usual and ordinary meaning.’  [Citation.]”  (Ibid.)  “ ‘ “If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on [its] face . . . or from its legislative history.” ’  [Citation.]”  (People v. Mackey (1985) 176 Cal.App.3d 177, 184.)  “Only when ambiguity exists do we ‘examine the context of the statute, striving to harmonize the provision internally and with related statutes, and we may also consult extrinsic indicia of intent as contained in the legislative history of the statute.’  [Citation.]  In addition, penal statutes are generally construed most favorably to the defendant.  [Citation.]  The same principles of statutory interpretation also apply to voter initiatives.  [Citation.]”  (Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 727 (Ramos).)

B.    Plain Language of the Statutory Sections
We conclude that the plain language of section 1382 makes clear that the court erred by applying the statutory 10-day grace period to Smith.  The exception to the 60-day rule, provided in section 1382, subdivision (a)(2)(B), is limited to cases when “[t]he defendant requests or consents to the setting of a trial date beyond the 60-day period.”  (Italics added.)  The statute further provides:  “Whenever a case is set for trial beyond the 60-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.”  (§ 1382, subd. (a)(2)(B), italics added.)  Adopting the People’s interpretation would ignore the Legislature’s use of the singular form of “defendant,” rather than “the defendant, or any jointly charged defendant.”  Had the Legislature intended that section 1382, subdivision (a)(2)(B), also apply to an objecting codefendant, it could have said so.   It did not.

Recognizing that their argument is not supported by the plain language of section 1382, the People argue that section 1050.1 operates, on these facts, to extend the 10-day grace period to any jointly charged defendant.  The People cite no authority in direct support of their argument.  We cannot read the language of section 1050.1 as expansively as urged by the People.
Proposition 115, enacted by the voters in 1990, added section 1050.1 which provides:  “In any case in which two or more defendants are jointly charged in the same complaint, indictment, or information, and the court or magistrate, for good cause shown, continues the arraignment, preliminary hearing, or trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants’ cases so as to maintain joinder.  The court or magistrate shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court or magistrate that it will be impossible for all defendants to be available and prepared within a reasonable period of time.”
Nothing in the text of section 1050.1, or its history, suggests that the electorate intended the 10-day grace period of section 1382 should thereby automatically apply to the trial of an objecting codefendant.  Nor is such an interpretation required in order to harmonize the two statutory sections.  The first sentence of section 1050.1 applies only to continuances for “good cause.”  Thus, this provision operated here only to maintain joinder during the continuances granted through April 27—thereafter no good cause was shown.  Further, the second sentence of section 1050.1 does not require that the 10-day grace period apply to Smith because severance would not otherwise be required due to “unavailability” or “unpreparedness.”  First, while the trial court initially considered the possibility of severance when Sims’s counsel was first unavailable, no motion to sever was made.  Second, severance would not have been required if trial had commenced on April 27.  Sims’s counsel was no longer unavailable or unprepared at that time.

Thus, we agree with Smith that sections 1050.1 and 1382 can be harmonized without applying the 10-day grace period to Smith.  As Smith maintains:  “Section 1050.1 would have been satisfied by commencement of joint trial on April 27, because there was no good cause for further continuance, and there was no need or request to sever the cases.”  Contrary to the People’s assertion, a statutory preference for joint trial (§§ 1098, 1050.1) does not necessarily mean that an objecting defendant’s speedy trial rights must give way to his codefendant’s last possible trial date.  (See § 1050, subd. (a) [“all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time”]; Arroyo v. Superior Court (2004) 119 Cal.App.4th 460, 464 [“Section 1050.1 permits the court to continue one defendant’s trial beyond the 60 days, when his or her codefendant’s trial has been continued for good cause shown.  But [the codefendant’s] trial date was never continued for good cause. . . . Section 1050.1 does not provide for the automatic tacking of each newly arraigned codefendant’s statutory time to be brought to trial.”].)  The People essentially argue for automatic tacking of one defendant’s last trial date to that of his or her codefendant.  Neither section 1050.1 nor section 1382 provides for this.

C.    Persuasive Authority Supports Our Interpretation
In addition to the plain language of the statutory provisions, Smith’s argument is supported by authority that, although not precisely on point, is instructive.  (See Ramos, supra, 146 Cal.App.4th 719.)  In Ramos, the Second District Court of Appeal considered whether “good cause, attributed from one jointly charged codefendant to another pursuant to section 1050.1, permit[s] the magistrate to set or continue the preliminary hearing for both defendants beyond the 60 days prescribed by section 859b[ ] in the absence of a personal waiver of the 60-day rule by both defendants[.]”  (Id. at p. 722.)
Maria Ramos and Dolares Gomez were jointly charged as accessories after the fact to murder.  (Ramos, supra, 146 Cal.App.4th at p. 723.)  The same complaint charged Efrain Ramos with murder.  (Ibid.)  Maria Ramos was arraigned on February 21, 2006, and a preliminary hearing was set for all defendants on March 3, 2006.  (Ibid.)  On March 3, 2006, the preliminary hearing was continued to April 6, 2006, with the consent of all three defendants.  (Id. at p. 724.)  On April 6, 2006, Efrain Ramos requested a four week continuance, on the ground that he needed additional time to review discovery.  (Ibid.)  Maria Ramos objected to the continuance and also moved to sever her case.  (Ibid.)  The magistrate granted the continuance to May 3, 2006, and denied Maria Ramos’s motion to sever, reasoning that “under section 1050.1 the good cause found for the continuance as to Efrain Ramos could be used to continue the preliminary hearing as to [Maria] Ramos . . . more than 60 days after arraignment.”  (Ibid.)  Maria Ramos then moved to dismiss the complaint against her on the first day beyond the 60-day period specified in section 859b.  (Ibid.)  The motion was denied.  (Ibid.)  Maria Ramos filed a petition for writ of mandate and the preliminary hearing for all defendants was eventually held on August 28 and 29, 2006.  (Id. at p. 726.)

On review, Maria Ramos argued that “because she did not personally waive the 60-day time limit in section 859b, the magistrate was required to dismiss . . . when her preliminary hearing was continued more than 60 days after her arraignment [and that] the magistrate improperly used the joinder provisions in section 1050.1 to create an unauthorized exception to the mandate of section 859b.”  (Ramos, supra, 146 Cal.App.4th at pp. 726–727.)  The court agreed that “inclusion of the defendant’s personal waiver as the only express exception to the 60-day rule suggests the Legislature did not contemplate additional exceptions.  [Citation.]”  (Id. at p. 729.)  The court rejected the People’s argument that section 1050.1 provided a basis for the magistrate to conclude that “the good cause found to continue the preliminary hearing as to Efrain Ramos was also applicable to [Maria] Ramos, thereby justifying the continuance of the preliminary hearing as to her in order to maintain joinder of the defendants.”  (Id. at p. 731.)  Because the plain language of section 859b provided no good cause exception to the 60-day rule, the court concluded that “[t]o import a good-cause exception into the absolute 60-day rule in section 859b, absent the express direction of the Legislature (or the voters by initiative), would constitute an impermissible rewriting of the statute.  [Citations.]”  (Id. at p. 732.)

The Ramos court further rejected the argument that “a defendant who has continuously objected to continuances of the preliminary hearing can be deemed to have personally waived the 60-day rule simply because a codefendant has done so [because] [a]ny such holding would effectively read the personal waiver requirement out of the statute and eviscerate the 60-day rule.  [Citation.]”  (Ramos, supra, 146 Cal.App.4th at p. 734.)  The court observed that, under the circumstances of the case, “as between the People, who could have proceeded against all defendants albeit without the benefits of joinder, and a defendant who has insisted on her speedy trial rights, there is nothing inherently unfair about visiting the consequences of a codefendant’s request to continue a preliminary hearing beyond the 60-day period on the People—who would retain their ability to refile charges against [Maria] Ramos after the mandatory section 859b dismissal.  [Citation.]”  (Ibid.)

The court recognized that the second sentence of section 1050.1, “expresses the section’s strong preference that joinder be maintained [and] confirms that the unpreparedness or unavailability of a defendant, which constitutes good cause to continue the hearing or trial for that defendant, also permits continuance of the preliminary hearing or trial for another jointly charged defendant . . . .”  (Ramos, supra, 146 Cal.App.4th at p. 735.)  However, the court concluded that “severance of [Maria] Ramos’s case was required not because her codefendants were unprepared but because her own absolute right to a preliminary hearing within 60 days of arraignment would be violated by a further continuance of the preliminary hearing date.  Or phrased somewhat differently, as to [Maria] Ramos the further extension was necessarily more than ‘a reasonable period of time’ in light of her right to insist on a preliminary hearing within the 60 days mandated by section 859b.  Moreover, to interpret the second sentence of section 1050.1 as an unlimited ability of the magistrate to continue proceedings to maintain joinder, as the People suggest, would impermissibly deprive the first sentence of the statute of any meaning.  [Citation.]”  (Ibid.)  Accordingly, the court held that the superior court should have dismissed the complaint against Maria Ramos.  (Id. at pp. 722–723.)

We agree with the People that section 1382 differs from section 859b in several key ways.  First, section 1382, subdivision (a)(2)(B), does not include such explicit “personal waiver” language.  Second, section 1382, subdivision (a), does include a “good cause” exception.  Thus, there is no question that section 1382 would have allowed Smith’s trial to have been continued beyond April 27, as it was before that date, on a showing of good cause.  However, there was no attempt to make such showing.
Rather, the court relied solely on its view that the 10-day grace period provided by section 1382, subdivision (a)(2)(B), applied to both Smith and Sims.  Despite the previously noted distinctions, Ramos is instructive on this issue of statutory interpretation.  We have similar difficulty reading the relevant statutory language, in this case section 1382, to include an additional, but unwritten, exception.  (See People v. Standish, supra, 38 Cal.4th at p. 870 [“the presence of express exceptions ordinarily implies that additional exceptions are not contemplated”]; Ramos, supra, 146 Cal.App.4th at p. 729.)  Furthermore, as was the case in Ramos, rejecting the position advocated by the People here would not unfairly burden the prosecution in future cases.  (Ramos, supra, at p. 734.)  In this case, on April 27, the People had a choice—proceed to trial against both defendants that day or sever the cases.  Severance of Smith’s case would not have been required because his codefendant was unavailable or unprepared, but because his own right to a speedy trial would be violated by a further continuance.  (See § 1050.1; Ramos, supra, at p. 735.)

In re Samano (1995) 31 Cal.App.4th 984 (Samano), provides some support for the People’s argument that Sims’s request for a continuance should be imputed to Smith.   In Samano, a criminal prosecution involving 33 defendants, the magistrate granted the request of two defendants to continue the preliminary hearing so that they could complete review of voluminous discovery and granted the People’s motion for a continuance, pursuant to section 1050.1, as to all other defendants.  (Id. at p. 988.)  The magistrate also denied two objecting defendants’ motions to be released on their own recognizance because the preliminary examination had been continued beyond the 10-court-day limit provided by section 859b.  (Ibid.)  Concluding that section 859b must be harmonized with section 1050.1 in a multiple-defendant case, the majority held that “[t]he request of one properly joined defendant for a continuance of the preliminary examination with good cause shall be deemed a request of all jointly charged defendants.”  (Id. at p. 993.)

The Samano court construed “defendant” in section 859b, subdivision (b)(1),  to mean “all jointly charged defendants.”  (Samano, supra, 31 Cal.App.4th at pp. 992–993.)  The court observed that section 859b does not speak to the situation of  codefendants and reasoned that “it was not the People who initiated the instant dilemma; it was the moving codefendants.  That codefendants insisted upon a continuance should not inure to the detriment of the People with the nonmoving codefendants as unintended third party beneficiaries.  The People were ready for the preliminary hearing and wanted to go forward, but just once.  Section 859b, subdivision (b) is premised on the People as the initiator of the continuance.  The People were not required to make any additional showing of ‘good cause’ to continue the preliminary hearing as to the nonmoving codefendants.  Section 1050.1 is the equivalent of ‘good cause.’ ”  (Id. at p. 989.)

We cannot reasonably construe “the defendant” in section 1382, subdivision (a)(2)(B), to mean “the defendant, or any jointly charged defendant.”  In Samano, “there [was] no question that the goals of a speedy preliminary hearing, on the one hand, and the joinder and bail provisions, on the other hand, [were] in conflict.”  (Samano, supra, 31 Cal.App.4th at p. 992.)  Here, however, sections 1050.1 and 1382 are not necessarily in conflict.  Contrary to the People’s argument, our interpretation does not “require severance or dismissal whenever the automatic 10-day grace period is invoked by one jointly charged defendant’s request for continuance beyond the 60-day period . . . .”  Rather, joinder could have been maintained by proceeding to trial on April 27, or on a further showing of good cause for continuance beyond that date.

The delay in bringing this case to trial cannot in any way be attributed to Smith.  Smith and his counsel were available and prepared for trial at all times and never wavered in their demand that trial take place within the statutory period.  We acknowledge that the People may be placed in the difficult circumstance of being required to proceed on a date certain when delay is caused entirely by a jointly charged codefendant, and not by action or inaction attributable to the prosecution.  If the Legislature wishes to address this situation, it must say so.  We conclude that the trial court erred by denying Smith’s motion to dismiss.

III.  DISPOSITION
The order to show cause, having served its purpose, is discharged, and the petition is granted.  Let a peremptory writ of mandate issue directing respondent to vacate its order denying Smith’s motion to dismiss in San Francisco Superior Court case number 207788, entitled People v. Donald Smith et al., and enter a new and different order dismissing the information pending against Smith.  To prevent any further delay of the proceedings below, this opinion shall be final as to this court within five (5) court days.  (Cal. Rules of Court, rule 8.490(b)(3).)  The previously issued stay shall dissolve on issuance of the remittitur.  (Cal. Rules of Court, rule 8.490(c).)

_________________________
Bruiniers, J.

We concur:

_________________________
Jones, P. J.

_________________________
Simons, J.

Superior Court of San Francisco City and County, No. 207788, Ksenia Tsenin, Judge.

Jeff Adachi, Public Defender for the City and County of San Francisco, Teresa Caffese, Chief Attorney, Doug Welch and Charmaine Yu, Deputy Public Defenders, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Stan Helfman, Deputy Attorneys General, for Real Party in Interest.

Defendant’s conviction for burglary, attempted robbery, and related crimes is affirmed as, although the trial court erred in refusing to allow defendant to exercise his personal statutory right to enter a plea of not guilty by reason of insanity (NGI) and in failing to remove defense counsel who refused to allow defendant to enter his NGI plea, both of the errors are harmless in light of abundant, uncontradicted evidence in the record demonstrating there was no factual basis for a finding of not guilty by reason of insanity where defendant claimed he was hallucinating from crystal methamphetamine use while playing the video game Grand Theft Auto for 10 hours.

People v. Henning 10/14/2009 Case No. C060371 __ Cal.App.4th__

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
—-

THE PEOPLE,
Plaintiff and Respondent,
v.
JAISEN LEE HENNING,
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Placer County, Charles D. Wachob, Judge. Affirmed.
Law Offices of John F. Schuck and John F. Schuck, under
appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
After a marathon session of playing the Grand Theft Auto video game, and while hallucinating under the influence of

illicit drugs, defendant Jaisen Lee Henning donned a black ski mask and wielded a sawed-off shotgun in an attempt to rob a randomly chosen business. Fleeing from the scene, Henning led police officers on a high-speed car chase before being apprehended.

A jury convicted defendant of burglary (Pen. Code, § 459),1 attempted robbery (§§ 211, 664), assault with a firearm (§ 245, subd. (a) (2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (§ 12020, subd. (a) (1)). On appeal, defendant argues that (1) he should have been allowed to plead not guilty by reason of insanity (NGI) because he committed his crimes while believing he was merely following the goals of the video game he had been playing, (2) his request for a second substitution of appointed counsel should have been granted pursuant to People v. Marsden
(1970) 2 Cal.3d 118 (Marsden), and (3) CALCRIM No. 220 failed to instruct the jury that each element of the charged offenses required proof beyond a reasonable doubt.

Following precedent of the California Supreme Court, we shall conclude the trial court erred in refusing to allow defendant to exercise his personal statutory right to enter an NGI plea. The trial court further erred in failing to remove defense counsel who refused to allow defendant to enter his NGI
1    Undesignated statutory references are to the Penal Code.

plea. However, both of these errors are harmless in light of abundant, uncontradicted evidence in the record demonstrating there was no factual basis for a finding of not guilty by reason of insanity.
We also reject defendant s frivolous attack on CALCRIM No. 220.
We shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On the afternoon of July 7, 2007, defendant finished a 10- hour session of playing the video game Grand Theft Auto: San Andreas. Grand Theft Auto engages players in “missions” to commit murder, drive-by shootings, burglary, other violent crimes, and theft. A player learns of missions from other characters in the game.

Defendant was hallucinating while playing Grand Theft Auto. He had been awake for about a week due to his use of crystal methamphetamine. Every day that week, defendant used some combination of methamphetamine, alcohol, ecstasy, crack cocaine, and hallucinogenic mushrooms.
As he finished playing the video game, defendant imagined voices from a little green person telling him, “It s time to do this. You can do this. Let s do this.” He got into his car and drove to a randomly chosen location.

Shortly before 3:00 p.m., defendant walked into the Rocklin Days Inn lobby wearing a black ski mask and gloves, and carrying a sawed-off shotgun. Vijay Vohra, a Days Inn employee, and

Benjamin Salazar, a plumber contracted by Days Inn, were standing behind the counter. Defendant told Salazar to hang up the telephone on which he had been speaking.
Pointing the gun at Vohra, defendant ordered him to open the drawers behind the counter. Defendant then pointed the gun at Salazar, and ordered him to open the drawers. Salazar explained he could not open any drawers because he was a plumber and not an employee of the Days Inn. Vohra hid behind Salazar and stated that he worked for Salazar. Defendant seemed surprised by the responses of Salazar and Vohra, and he stopped to think. After a minute, defendant instructed them to hand over their wallets.

Salazar refused to surrender his wallet, but offered defendant the $2 it contained. Defendant then noticed his car was rolling down the inclined driveway, and ran after it without taking anything.
Placer County Sheriff s Detective Michael Davis was running an errand during his vacation when he happened to drive by the Days Inn. Davis noticed a car blocking the street in front of the Days Inn. He then saw defendant run out of the Days Inn and get into the car, still wearing a mask and holding a shotgun. Davis followed defendant as he sped away. Davis called his dispatcher and described the vehicle and its location. He was unable to relay the license plate number because it had been obscured by duct tape.

Officers in marked police vehicles took over the pursuit. Defendant led the police on a high-speed chase in which he drove erratically through heavy traffic. He was apprehended after the police forced him to turn into a parking lot.

Defendant was taken out of his car and handcuffed. He appeared calm. A search of the car yielded a backpack containing a sawed-off shotgun.
In July 2008, the Placer County District Attorney filed an amended information charging defendant with burglary (§ 459), two counts of attempted robbery (§§ 211, 664), two counts of assault with a firearm (§ 245, subd. (a) (2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (§ 12020, subd. (a) (1)) . The information further alleged defendant used a firearm in committing the attempted robberies and assaults.    (§ 12022.53, subd. (b),
1203.06, subd. (a) (1) .)

Defendant pled not guilty, and the matter was tried to a jury. The jury found defendant guilty on all counts and found true the arming enhancement allegations.
The trial court sentenced defendant to an aggregate prison term of 17 years four months, comprised of two years for attempted robbery, eight months for the second attempted robbery, eight months for evading police officers, a 10-year enhancement for use of a firearm in committing the first attempted robbery, and another three-year four-month enhancement for use of the firearm in the second attempted robbery.

Sentences for the burglary, and two counts of assault with a firearm were stayed pursuant to section 654.
Appellant timely filed a notice of appeal.
DISCUSSION
I
Failure to Allow Defendant to Enter an NGI Plea
Defendant contends the trial court erred in disallowing him from entering an NGI plea over the objection of defense counsel. As we shall explain, a defendant has the right to personally enter the plea of his choice regardless of what his counsel thinks of the merits of an NGI plea. Although the trial court erred in failing to allow defendant to enter an NGI plea, we find the error harmless because the record affirmatively demonstrates the lack of credible evidence for an insanity defense.2
A
In January 2008, defendant moved to substitute his appointed attorney pursuant to Marsden, supra, 2 Cal.3d 118. One of the grounds for defendant s motion was his dissatisfaction with defense counsel s refusal to allow him to enter an NGI plea. At the conclusion of the hearing, the trial court ordered a substitution of counsel.
2    In part II, post, we separately consider defendant s
contention that we must reverse because his second appointed attorney should have been substituted after his attorney refused to allow him to enter an NGI plea.

In July 2008, defendant again sought a Marsden hearing. Defendant expressed a lack of trust in his attorney as well as displeasure that his attorney was a member of the same law firm as his first appointed counsel. Defendant also stated his wish to enter a plea of NGI. During the hearing, the following colloquy occurred:
“[DEFENSE COUNSEL]: Just to be clear, Your Honor, [defendant] is desirous of entering a plea [of not guilty] by reason of insanity.
“THE COURT: Okay. And so [defense counsel] is not in agreement with your desire to change your plea to what they call – commonly call NGI, not guilty by reason of insanity. Is there anything else that gives you concern about your – either your representation – his representation of you or your ability to work with him –
“THE DEFENDANT: Yes.
“THE COURT: – in your trial?
“THE DEFENDANT: It s just not working out.
“THE COURT: It s not working out. Okay. Can you give me any other facts to support your position?
“THE DEFENDANT: Im sorry. Can I — Id like a day with it right now. I cant.
“THE COURT: Okay.
“THE DEFENDANT: But I do believe that he is in agreement. He does not want to go along with my plea.

“THE COURT: Okay. The – I know – is it your position that you were insane at the time of the incident?
“THE DEFENDANT: Yes.
“THE COURT: Or insane at this time or continuing? “THE DEFENDANT: At the time of the incident.
“THE COURT: Okay.”
The trial court invited response from defense counsel, who stated there was “absolutely no basis on which to run an NGI defense.” Counsel explained that he obtained three confidential evaluations of defendant by mental health professionals as well as the advice of a substance abuse expert. All four evaluations reached the conclusion that defendant suffered no mental disease or defect supporting an NGI defense. The experts further concluded that, even if defendant had a mental problem, he still had been able to appreciate the wrongfulness of his acts at the time of the attempted robbery. Finally, defense counsel noted that the fourth evaluator opined that defendant was malingering during his psychological testing “in order to appear more crazy than he actually was . . . .”
The trial court found that defendant was receiving “full and complete representation,” and denied the Marsden motion.
B
In addition to entering a plea of not guilty, a criminal defendant may also enter a plea of not guilty by reason of insanity. (§ 1017.) “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.” (People v. Hofferber (1997) 70 Cal.App.3d 265, 269.) “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 distinguishing right from wrong. (. . . § 25, subd. (b); People v. Skinner (1985) 39 Cal.3d 765, 776-777, [construing . . . § 25, subdivision (a) as providing that defendant may be found insane if he did not know the nature and quality of his act or if he did not know the act to be morally wrong].)” (People v. Hernandez (2000) 22 Cal.4th 512, 520-521.)
When a defendant has entered simultaneous pleas of not guilty and not guilty by reason of insanity, trial must be bifurcated to first ascertain whether defendant committed the charged offenses, and, if so, whether defendant was insane at the time of their commission. Section 1026, subdivision (a), provides, in relevant part: “When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, the defendant shall first be tried as if only such other plea or pleas had been entered, and in that trial the defendant shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was

committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. In that trial, the jury shall return a verdict either that the defendant was sane at the time the offense was committed or was insane at the time the offense was committed. If the verdict or finding is that the defendant was sane at the time the offense was committed, the court shall sentence the defendant as provided by law. If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility . . . .”
Generally, defense counsel has the right to make tactical choices regarding formulation and presentation of a defense at trial.    (People v. Bolden (1979) 99 Cal.App.3d 375, 379.)
However, as the California Supreme Court has explained, “the decision to plead guilty or not guilty ultimately lies with the defendant.” (In re Williams (1969) 1 Cal.3d 168, 177, fn. 8.) To this end, section 1018 provides: “Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court.”
In People v. Medina (1990) 51 Cal.3d 870 (Medina), the California Supreme Court addressed the issue of whether trial courts have discretion to disallow defendants to enter an NGI

pleas thought to be unwise by defense counsel. (Id. at p. 899- 900.) On appeal from conviction and a failed insanity defense, defendant in Medina contended the trial court should have rejected his NGI plea to allow defense counsel to pursue other defenses that had appeared tactically more sound. (Ibid.) The high court rejected the contention, holding that the trial court had no discretion to reject defendant s desired plea. As the Medina court explained, “[ I] f a defendant cannot be compelled by counsel to present an insanity defense, he cannot be compelled by counsel to abandon one merely because counsel disagrees with the tactics of that decision. Thus, contrary to defendant’s present premise, the trial court had no discretion to deny defendant’s motion to reinstate his insanity plea solely because his counsel opposed that choice on tactical grounds.” (Id. at p. 900.)
Here, defendant unequivocally requested to enter an NGI plea during both Marsden hearings. Both attorneys who represented defendant refused to allow him to enter an NGI plea. As a result, defendant did not receive a trial on the issue of sanity after he was convicted of the charged offenses.
The trial court s failure to allow defendant to enter an NGI plea over the objection of defense counsel violated
defendant s statutory right under section 1018 to personally enter the plea of his choice. As the high court has explained, a defendant has the right to enter a plea that “„may in the final analysis be harmful to his case” because “„the right is

of such importance that every defendant should have it.” (People v. Frierson (1985) 39 Cal.3d 803, 815-816 (Frierson), quoting People v. Robles (1970) 2 Cal.3d 205, 215.)
C
Upon finding a violation of a state statutory right, we must assess whether the error resulted in prejudice. (Cal. Const., art. VI, § 13; People v. Kabonic (1986) 177 Cal.App.3d 487, 498.) Errors of state statutory law are analyzed pursuant to our Supreme Court s decision in People v. Watson (1956) 46 Cal.2d 818.    (People v. Epps (2001) 25 Cal.4th 19, 29.) 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.” (Watson, supra, at p. 836.)
Defendant acknowledges the error complained of here constituted a violation of a state statute: section 1018. Nonetheless, defendant attempts to invoke the more stringent analysis of prejudice applicable to errors of federal constitutional dimension. Violations of federal constitutional rights require reversal unless we can declare the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24 [ 87 S.Ct. 824, 17 L.Ed.2d 705] .)
Citing Pennywell v. Rushen (9th Cir. 1983) 705 F.2d 355, at page 357, defendant argues that an arbitrary denial of a state- created right may render “trial so „arbitrary and fundamentally

unfair that it violated federal due process.” In Pennywell, the record showed defendant “received full consideration of the facts underlying his insanity claim.” (Id. at p. 357-358.) Thus, the Ninth Circuit found no federal due process violation
arising out of alleged error in the trial court s entering of an NGI plea on behalf of a defendant who wished to plead only “temporary” insanity. (Ibid.) As in Pennywell, defendant in this case received full consideration of the facts regarding his desired insanity defense. Accordingly, the error in this case does not arise to a federal due process violation, and is therefore subject to Watson harmless error analysis. Simple errors of state law do not implicate federal due process guarantees.    (Estelle v. McGuire (1991) 502 U.S. 62, 67 [ 112
S.Ct. 475, 116 L.Ed.2d 385] .)
We have found no California Supreme Court decision in which a trial court disallowed a defendant to exercise his or her statutory right to enter an NGI plea. Nonetheless, we find guidance in the California Supreme Court s decisions in Medina, supra, 51 Cal.3d 870, as well as Frierson, supra, 39 Cal.3d 803 and its progeny. As we shall explain, Medina’s holding that a defendant must be allowed to enter a plea of his or her choice requires an analysis of prejudice consistent with the test for reversible error articulated in Frierson and its progeny. The Frierson test compels us to conclude that a trial court s failure to allow a defendant to plead NGI is harmless when the

record affirmatively shows the insanity defense lacks evidentiary support.
In Medina, supra, 51 Cal.3d at page 899, the Supreme Court held that the trial court properly refused to allow defendant to withdraw an NGI plea. Thus, the high court did not have occasion to engage in an analysis of prejudice arising out of an erroneous denial of the right to enter an NGI plea. (See ibid.) The Supreme Court also did not consider the effect of denying a defendant the right to enter an NGI plea in In re Williams, supra, 1 Cal.3d 168. Although the Williams court emphasized the right of a defendant to enter the plea of his or her choice, it reversed due to counsel s failure to properly advise defendant of a meritorious defense prior to his guilty plea. (Id. at p. 177 & fn. 8.) Thus, Williams did not address prejudice arising out of the denial of the right to enter an NGI plea. (Ibid.)
In Frierson, supra, 39 Cal.3d at page 805, the Supreme Court considered a defendant s insistence on presenting a diminished capacity defense during the guilt phase of a capital trial. Defense counsel believed the better tactic was to withhold evidence until the penalty phase. (Ibid.) Thus, the defense offered no witnesses or evidence during the guilt phase. (Id. at p. 807.) On automatic appeal, a plurality of the high court held that counsel wrongly refused to present the diminished capacity defense: “Given the magnitude of the consequences that flowed from the decision whether or not to present any defense at the guilt/special circumstance phase, we

do not think counsel could properly refuse to honor defendant’s clearly expressed desire to present a defense at that stage. Just as a defendant in an ordinary criminal case retains the right to refuse to plead guilty to a lesser offense even if his counsel is convinced that such a plea will lead to a lesser penalty, a defendant in a capital trial must also retain the right to have his only viable defense to the guilt or special circumstance charges presented at the initial stage of the trial.” (Id. at pp. 815-816, footnotes omitted.) Accordingly, the Supreme Court reversed the special circumstance findings and penalty judgment.    (Id. at p. 805.)
The Frierson plurality did not address whether its holding was restricted to capital cases or to cases involving credible evidence of mental impairment. (Frierson, supra, 39 Cal.3d at pp. 815, 816, fn. 3.) As to the latter issue, Frierson noted: “[ I] n this case there was evidence to support the diminished capacity defense defendant wished to present. . . .
Accordingly, we have no occasion in this case to determine whether a defendant has a constitutional right to insist on the presentation of a defense which has no credible evidentiary support or on which no competent counsel would rely.” (Id. at p. 816, fn. 3.)
Subsequent decisions by the California Supreme Court clarified Frierson’s holding by explaining that credible evidence is required to allow a defendant s desire for a defense based on mental impairment to prevail over counsel s objection

to the defense. In People v. Milner (1988) 45 Cal.3d 227 (Milner), at page 246, a unanimous court rejected a defendant s “novel” assertion of prejudice arising out of the prosecution s references to defendant s reluctance to pursue a diminished capacity defense. The Milner court found defendant s reliance on Frierson misplaced, and explained its earlier decision as holding that “a defense counsel’s traditional power to control the conduct of a case does not include the authority to withhold the presentation of any defense at the guilt/special circumstance stage of a capital case when the defendant openly expresses a desire to present a defense at that stage and when there exists credible evidence to support that defense.” (Id. at p. 246, italics added.)
Most recently, the high court echoed Milner when considering a claim that counsel in a capital case had wrongly failed to keep defendant informed of the plan to present no evidence until the penalty phase. (In re Burton (2006) 40 Cal.4th 205, 215.) The Burton court rejected the argument because a referee found defendant had been adequately advised of and consented to the trial strategy employed. (Id. at pp. 215- 216.) The Supreme Court also reiterated that a defendant must unequivocally request a defense having credible evidence in order to compel reluctant counsel to tender a defense during the guilt phase of a capital trial.

The Burton court stated:
“Thus, Frierson means that „a defense counsel’s traditional power to control the conduct of a case does not include the
authority to withhold the presentation of any defense at the guilt/special circumstance stage of a capital trial when the defendant openly expresses a desire to present a defense at that stage and when there exists credible evidence to support that
defense.    (People v. Milner (1988) 45 Cal.3d 227, 246.)” (Id.
at p. 213.)

We see no reason why the test articulated in Frierson and its progeny should not apply to noncapital cases in which the trial court fails to heed a defendant s unequivocal request to enter an NGI plea. Although Medina holds that defendants must be allowed to avail themselves of their statutory right to plead NGI, Frierson and its progeny lead to the conclusion that a trial court s erroneous denial of that right does not warrant reversal if an insanity defense is baseless.
Here, the record affirmatively demonstrates the lack of credible basis for an insanity defense. As we have already explained, an insanity defense requires proof that defendant was incapable of understanding the nature of his actions or unable to distinguish right from wrong. (People v. Hernandez, supra, 22 Cal.4th at p. 520; see also § 25, subd. (b) .) The defendant bears the burden of proving insanity at the time of the offense by a preponderance of the evidence. (Id. at p. 521.)
Defendant cannot rely on the hallucinogenic effects of the drugs he ingested during the week of his crimes because section 25.5 states, “In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not

be found by the trier of fact solely on the basis of . . . an addiction to, or abuse of, intoxicating substances.” Here,
defendant s intoxication due to illicit drugs was the sole basis of his claim of insanity. “[ I] f an alcoholic or drug addict attempts to use his problem as an escape hatch, he will find that section 25.5 has shut and bolted the opening.” (People v. Robinson (1999) 72 Cal.App.4th 421, 427.) Thus, defendants drug abuse offers no support for an insanity defense.
Other than defendant s nonexculpatory use of drugs, the record contains no evidence of mental defect or condition rendering him unable to appreciate the wrongfulness of his conduct at the time of his crimes. The circumstances of
defendant s armed offenses and subsequent flight indicate that he understood the wrongful nature of his acts. Defendant wore a black ski mask to avoid recognition, gloves to avoid leaving fingerprints, and placed duct tape over his license plate to preclude identification. Moreover, defendant s attempt to conceal his shotgun inside his backpack while trying to evade the police further indicated he was aware of the wrongfulness of his attempted robbery. Thus, the circumstances show intentional strategic thinking rather than insanity.
Moreover, defense counsel consulted four independent experts, all of whom concluded defendant was not insane at the time of the offenses. Thus, according to defendant s attorney, defendant was evaluated by Dr. Page Brown and Dr. Deborah Schmidt; both of whom concluded defendant to have been sane at

the time of the attempted robbery. Counsel also consulted with a substance abuse expert to ascertain whether defendant s drug usage could lend any support to an insanity defense. Again, counsel was informed that there was no basis for the defense.
Defendant and his father then expressed interest in the services of Dr. Vosconian, who practices in Philadelphia. Defense counsel moved for funds to retain Dr. Vosconian, but the motion was denied due to the expense of hiring an expert to travel cross-country while numerous experts were available in California. Undeterred, defense counsel sought and received approval to hire Dr. Alex Eufick, who practices in Southern California. Dr. Eufick conducted “extensive psychological testing of [defendant] and review[ ed] all the records in the case.” However, Dr. Eufick found no basis for an insanity defense. Instead, he concluded that defendant was “intentionally falsifying some of the answers” to appear insane.
The affirmative showing on this record that an insanity defense was baseless distinguishes it from a case relied upon by defendant, People v. Clemons (2008) 160 Cal.App.4th 1243. In Clemons, the Court of Appeal reversed in a procedurally similar case. There, the trial court denied a request to enter an NGI plea articulated during a Marsden hearing. (Id. at p. 1251.)

As in this case, defense counsel in Clemons thought the insanity defense to be unwarranted. (Id. at p. 1253.) In Clemons, however, defendant had a history of diagnoses of and hospitalizations for mental illness. (Ibid.) Moreover, the crime in that case – possessing an illegal razor blade 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.” (Ibid.) Concluding that insanity was not a “futile line of defense,” the Clemons court reversed. (Ibid.)
As we have recounted in detail, the record in this case shows that an insanity defense would have been futile. Reversal would serve no purpose other than to require the trial court to conduct a sanity trial on a doomed defense.

The refusal of the trial court to allow defendant to enter an NGI plea was harmless error. It is not reasonably probable that defendant would have obtained a different result at trial if he had entered an NGI plea. (People v. Epps, supra, 25 Cal.4th at p. 29; People v. Watson, supra, 46 Cal.2d at p. 836.)

II
Denial of Defendant’s Second Marsden Motion
Defendant contends the trial court abused its discretion in denying him a second substitution of appointed counsel. He argues that he was denied his federal constitutional right to effective assistance of counsel because he lacked “trust or faith” in his attorney and because his attorney refused to allow him to enter an NGI plea. Although defendant failed to show breakdown in the attorney-client relationship, counsel should have been substituted when the trial court learned of counsel s refusal to allow defendant to enter an NGI plea. Even so, we

shall affirm because the record demonstrates the error was harmless.
A
In Marsden, supra, 2 Cal.3d 118, at pages 123-124, the California Supreme Court held that trial courts must give indigent criminal defendants an opportunity to state reasons in support of appointment of new defense counsel. “A defendant
„may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially
impaired. [Citations.] The law governing a Marsden motion „is well settled. “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 [citations].”
[Citations.]    (People v. Fierro (1991) 1 Cal.4th 173, 204.)”
(People v. Memro (1995) 11 Cal.4th 786, 857 (Memro), first brackets added.) We review the trial court s ruling on the motion for an abuse of discretion. (People v. Welch (1999) 20 Cal.4th 701, 728.)

B
At the second Marsden hearing, defendant claimed his newly appointed attorney had a “conflict of interest” because counsel was a member of the same law firm as his first attorney. However, defendant did not articulate any interest adverse to him that counsel may have had. On appeal, defendant still fails to identify any problem with second counsel s employment with the same law firm as his first attorney. Instead, defendant simply reiterates that he had “no trust or faith” in counsel.
Defendant s displeasure with his second appointed attorney did not warrant substitution of counsel. As the California Supreme Court has explained, “To be sure, defendant made plain that he did not like his lawyers and did not think highly of them. That, however, „was not enough [to show a conflict of interest]. “[ I] f 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.”    (People v. Berryman [ (1993) 6 Cal.4th [ 1048,]
1070.)” (Memro, supra, 11 Cal.4th 786, 857.)
We also reject defendant s claim that his attorney improperly argued against him by discussing the lack of evidence supporting an insanity defense. Here, counsel explained the difficulties with an insanity defense in response to defendant s

complaints about his inability to enter an NGI plea. As is the usual practice with Marsden motions, the trial court heard from defendant and his attorney only after the courtroom has been cleared of all persons except for court personnel and the defense team. (Cf. People v. Madrid (1985) 168 Cal.App.3d 14, 18.) The cleared courtroom allowed the trial court to hear from defendant and defense counsel in a manner that preserved attorney-client privileges and avoided revealing tactical decisions to the prosecution.
In a Marsden hearing, defendant s attorney has an obligation to respond when a defendant states seemingly meritorious grounds for a substitution of counsel. (People v. Hill (1983) 148 Cal.App.3d 744, 755; People v. Munoz (1974) 41 Cal.App.3d 62, 66.) Here, defense counsel did not act improperly in responding to defendant s complaints about the lack of an insanity defense.
Defendant fails to demonstrate that his lack of trust and faith in his second appointed attorney warranted a substitution of counsel under Marsden, supra, 2 Cal.3d 118.
C
As we explained in part I B, ante, defendant had the statutory right to enter an NGI plea over the objection of defense counsel. Even though defense counsel believed an insanity defense to be unfounded, he wrongly refused to allow defendant to enter an NGI plea. (§ 1018; Medina, supra, 51

Cal.3d at pp. 899-900.) Upon learning of defense counsels refusal to allow defendant to exercise his prerogative to enter an NGI plea, the trial court should have substituted new counsel.    (Marsden, supra, 2 Cal.3d at p. 123.)
We come again to the question of prejudice. A defendant s federal constitutional right to effective assistance of counsel entitled him to a full defense availing itself of all federal and state protections. (See In re Avena (1996) 12 Cal.4th 694, 722-723 [considering whether defendant s federal constitutional right to effective assistance of counsel was violated by his
attorney s failure to pursue a diminished capacity defense that was later abolished by California statute].)
We conclude that the trial court s failure to substitute counsel was harmless beyond a reasonable doubt. Although defense counsel refused to allow defendant to enter an NGI plea, counsel nonetheless vigorously pursued evidence in support of an insanity plea as we have explained in part I C, ante. Despite the efforts, no credible evidence could be mustered for an insanity defense.
Nothing would be gained by reversing and remanding for further proceedings with new counsel. Defendant has already received a vigorous and thorough attempt by two attorneys to formulate an insanity defense. We will not require defense counsel to mount a defense entirely lacking in credible evidentiary support. (See People v. Riel (2000) 22 Cal.4th

1153, 1217 [noting that counsel have an ethical duty to avoid presenting false evidence or perpetrating fraud on the court].)
Declaring the error harmless upon affirmative showing of lack of credible evidence for an insanity defense avoids the concerns articulated by the Frierson plurality in regard to requiring defense counsel to proceed with a defense lacking any support or having ethically problematic evidence. (See Frierson, supra, 39 Cal.3d at p. 817, fn. 6.) In this case, for example, the evidence indicated that defendant was malingering during his most recent psychological evaluation. Lacking other evidence, an insanity claim would be more than baseless; it would be fraudulent.
On this record, which documents defense counsel s vigorous efforts to muster evidence for an insanity defense, we are compelled to conclude that defendant was not prejudiced by the trial court s erroneous denial of his motion to substitute counsel. The trial court s error was harmless beyond a reasonable doubt.
III
Reasonable Doubt Instruction
Defendant contends CALCRIM No. 220 failed to instruct the jury that he could not be convicted without proof beyond a reasonable doubt of each element of the charged offenses. In so arguing, defendant acknowledges that we rejected this claim (presented by the same appellate counsel) in People v. Wyatt

(2008) 165 Cal.App.4th 1592 (Wyatt). Defendant s argument is frivolous .3
In Wyatt, we explained, “Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5, 114 S.Ct. 1239, 1242, 127 L.Ed.2d 583, 590; People v. Cole (2004) 33 Cal.4th 1158, 1208;
§ 1096.) Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions, given the jury. (Victor v. Nebraska, supra, 511 U.S. at p. 5, 114 S.Ct. 1239; see People v. Cain (1995) 10 Cal.4th 1, 36.) [¶]    Under these standards, we see no
instructional error. In giving CALCRIM No. 220, the trial court told the jury: „Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. The jury also received [instruction on each charged offense]. Each instruction states, „To prove that the defendant is guilty of this crime, the People must prove that: and then lists the separate elements of the offense. In addition, the jury received CALCRIM No. 361, which concerns the evaluation of a defendant’s failure, if any, to explain or deny adverse evidence against him, and states: „The People must still prove each element of the crime beyond a reasonable doubt. Accordingly,
3 This means the taxpayers will not have to pay appellate counsel for having made this argument.

CALCRIM No. 220, viewed together with other instructions, correctly informed the jury that the prosecutor was obliged to prove each element of the crimes beyond a reasonable doubt.” (Id. at p. 1601.)
Although defendant purports to articulate reasons why “Wyatt was wrongly decided and should be reconsidered,” he fails to offer any analysis of our prior decision. Indeed, he fails to offer analysis of any authority more recent than a case decided by the California Supreme Court four years prior to our decision in Wyatt.
Defendant asks us to reconsider our holding in Wyatt, but articulates no grounds for doing so. A good faith argument for overruling a recent decision without intervening Supreme Court authority or legislative change requires more than a recycled argument. Our message to appellate counsel is the same one we gave counsel the last time we encountered repetitive attacks on the reasonable doubt instruction: “The time has come for appellate attorneys to take this frivolous contention off their menus.” (People v Hearon (1999) 72 Cal.App.4th 1285, 1287.)
Discerning no error in CALCRIM No. 220, we reject defendant s challenge to the instruction.

DISPOSITION The judgment is affirmed.
SIMS    , J.
We concur:
BLEASE    , Acting P. J.
ROBIE    , J.

People v. Vazquez 10/13/2009 Case No. B213000 __ Cal.App.4th___

CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,    2d Crim. No. B213000
(Super. Ct. No. 7A066266)
(Los Angeles County)
v.
GILBERT VAZQUEZ, Defendant and Appellant.

Gilbert Vazquez appeals his conviction, by jury, of first degree murder in the shooting death of Juan Lopez. (Pen. Code, § § 187, 189.)1 The jury also found true special allegations that appellant intentionally and personally used a handgun
(§§ 12022.53, subd. (b)-(d)), and that he committed the murder for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subdivision (b)(1)(C).) Appellant was sentenced to a total term in state prison of 50 years to life. He contends the gang enhancement should be reversed because there is no substantial evidence that he committed the murder with “the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b).) He further contends the trial court erred when it conditioned the amount of a restitution fine on appellant’s payment of direct victim restitution. We modify the restitution fine and, in all other respects, affirm the judgment.

1 All statutory references are to the Penal Code unless otherwise stated.

Facts
In September 2006, Juan Lopez (the victim) lived in Inglewood with his girlfriend, Griselene Flores, and their child. At about 10 p.m. on the night of September 29, Lopez and Flores drove to a nearby fast food restaurant while Flores’ parents stayed with the child. When they returned, Lopez parked in the alley behind their apartment building. Just as they were about to leave the car, a pickup truck drove up from behind and stopped next to the passenger side door. Appellant got out of the passenger side of the truck holding a handgun at his waist. He walked to the front of Lopez’s car. Two other men stayed in the truck, telling appellant, “Get him, get him.”

Flores thought the men looked like gang members. They all had shaved heads and there was a lot of gang crime in the neighborhood. She got out of the car and started pleading with appellant that Lopez was “not from nowhere.” The passengers continued telling appellant to “get him.” One told Flores to “shut up or we’re going to get you too.” She ran toward their apartment. Just as she reached the door, Flores looked back over her shoulder and saw appellant shoot Lopez the first time. Flores heard three or four more shots. By the time she got back to the car, Lopez was not breathing. He had been shot five times by appellant. Flores’ mother called police from their apartment. A neighbor also witnessed the shooting from the balcony of her upper-floor apartment. Her description of appellant and of the incident was consistent with Flores’.

Meanwhile, appellant got back into the truck which sped away. At some point, he got out of the truck and into a minivan with another gang member and his girlfriend. Appellant was arrested about 30 minutes later, after the driver of the minivan led Inglewood police officers on a short chase. When the minivan finally stopped, a male passenger immediately jumped out and ran away. Appellant stayed inside, hiding in the back. The murder weapon was lying nearby, on the rear floorboard. Flores identified appellant as the shooter in a field “show up” later that night.
The prosecution’s expert witness on gangs, Detective Milchovich, testified that Lopez was killed in an area that is claimed as the “territory” of two rival gangs, Krazy Crowd 13 and 18th Street. There was graffiti in the alley only a few feet from the

site of the shooting, in which 18th Street members had crossed out graffiti by Krazy Crowd, a sign of disrespect and of a willingness to fight over that territory. Appellant has tattoos on his abdomen and right arm that identify him as a member of 18th Street. His hair and clothing followed a style favored by gang members.

Detective Milchovich opined that appellant is a member of 18th Street. He based that opinion on a past contact with appellant, appellant’s association with other gang members, the location of the crime, his tattoos and the fact that he did not also shoot Flores. Appellant’s tattoos are significant because they are “permanent markings . . . . Tattoos signify allegiance to a gang, it’s kind of your signal that you’re pretty dedicated to your gang.” According to Milchovich, tattoos are a “badge” signifying a gang member’s “commitment to the gang.”

Milchovich further explained that appellant would have earned “respect” in gang culture by shooting Lopez because Lopez might have appeared to be a member of a rival gang. However, in gang culture, “targeting women as victims of crime is . . . kind of hands off, taboo, you don’t target women specifically. That brings . . . some disrespect to the gang. But to shoot at someone you believe or appears to be a rival gang member would build that respect level.” The fact that appellant was with two other apparent gang members when he committed the crime and that he moved to a second vehicle only minutes after the shooting also indicated the crime was gang related.

Milchovich testified that, in his opinion, appellant committed this murder for the benefit of 18th Street. Violent crimes that create fear and intimidate others are thought, in gang culture, to increase “respect” for the gang. According to Milchovich, “A gang member who carries a gun, commits a shooting, commits a murder, proves not only his hundred percent dedication to the gang but also to promoting or furthering the gang status in the gang world as well as the reputation or respect level of that particular gang.” Crimes of violence also benefit the gang because they intimidate people in the neighborhood into refusing to cooperate with police, making it easier for the gang to operate.

The trial court instructed the jury that, to find the gang enhancement allegation true, it had to find beyond reasonable doubt that, “1. The crime charged was committed for the benefit of, at the direction of, or in association with a criminal street gang; and 2. This crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members.” It further instructed the jury: “The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find . . . the allegation that the defendant committed the crime for the benefit of a criminal street gang to be true, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent or mental state but (2) cannot be reconciled with any other rational conclusion.” Finally, the trial court instructed the jury that, gang enhancement allegation requires “a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists
. . . the allegation to which it relates . . . is not true.”

After trial, the jury found appellant guilty of first degree murder. It found true the special allegations that appellant personally and intentionally discharged a firearm (§§ 12022.53, subd. (c), (d)), that he personally used a firearm (§ 12022.53, subd. (b)), and that he committed the murder for the benefit of a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members.

(§ 186.22, subd. (b)(1)(C).) The trial court sentenced appellant to a term of 25 years to life on the murder conviction and a consecutive term of 25 years for discharging a
firearm (§ 12022.53, subd. (d)), for a total term of 50 years to life. Because the trial court imposed a life sentence, appellant was not sentenced to an additional term of years for the gang enhancement. (§ 186.22, subd. (b)(5).) Instead, the gang enhancement affects appellant’s parole eligibility date. He will be required to serve a minimum of 15 calendar years before being considered for parole. (People v. Johnson (2003) 109
Cal.App.4th 1230, 1239.)

Standard of Review
Appellant contends the jury’s true finding on the gang enhancement allegation is not supported by substantial evidence. As our Supreme Court recently reiterated, “On appeal, we uphold the jury’s verdict if there was substantial evidence to support it. [Citation.] Considering the entire record, we determine whether there is evidence that is ‘ “reasonable in nature, credible, and of solid value” ‘ from which a ‘ “reasonable trier of fact could have found the prosecution sustained its burden of proving [the special allegation true] beyond a reasonable doubt.” ‘ ” (People v. Carrington (2009) 47 Cal.4th 145, 147.) We view the evidence in the light most favorable to the prosecution, adopt all reasonable inferences and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Avila (2009) 46 Cal.4th 680, 701.) The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. (People v. Valencia (2008) 43 Cal.4th 268, 289.)

” ‘ “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. ” ‘ ” (People v. Smith (2005) 37 Cal.4th 733, 739.) It is the jury, not this court, that must be convinced beyond a reasonable doubt that the gang enhancement allegation is true. (People v. Lewis (2009) 46 Cal.4th 1255, 1290.) ” ‘ “[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” ‘ ” (People v. Smith, supra, 37 Cal.4th at p. 739.)

Discussion
Appellant concedes that he murdered Lopez and that he did so “for the benefit of, at the direction of, or in association with[,]” 1 8th Street, a criminal street gang. (§ 186.22, subd. (b)(1).) He contends, however, that the true finding on the gang enhancement allegation should be reversed because there is no substantial evidence that he committed the murder with the requisite “specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) Appellant
contends there is no substantial evidence that he intended, as the statute requires, for the murder to promote other criminal activity by the gang, e.g., crimes other than the Lopez murder itself. (See, e.g., Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069; Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.) We are not persuaded. The statute refers not to “other criminal activity,” but to “any criminal activity,” a phrase broad enough to encompass the Lopez murder itself and the many other crimes regularly committed by 18th Street members. Moreover, the prosecution’s expert witness on gang culture testified that violent crimes such as this murder increase “respect” for the gang and facilitate its criminal activities by intimidating members of rival gangs and law-abiding neighborhood residents. A reasonable jury could infer, based on this testimony and other evidence in the record, that appellant intended for the Lopez murder to have the predicted effect of intimidating rival gang members and neighborhood residents, thus facilitating future crimes committed by himself and his fellow gang members.

In Briceno, supra, and Garcia, supra, the Ninth Circuit held that the specific intent requirement of section 186.22, subdivision (b) is not satisfied by evidence of a defendant’s gang membership alone, and instead requires some evidence, aside from a gang expert’s “generic testimony,” that supports an inference that the defendant committed the crime ” ‘with the specific intent to facilitate other criminal conduct by the [gang].’ ” (Briceno, supra, 555 F.3d at p. 1079, quoting Garcia, supra, 305 F.3d at p. 1103.) Among other things, according to the Ninth Circuit, the statute requires evidence describing ” ‘what criminal activity of the gang was . . . intended to be furthered’ ” by the crime. (Id., quoting Garcia, supra, at p. 1103.)

While our Supreme Court has not yet reached this issue, numerous California courts of appeal have rejected the Ninth Circuit’s reasoning. As our colleagues noted in People v. Romero (2006) 140 Cal.App.4th 15, 19: “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)” Thus, if substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang
members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. (Id. at pp. 19-20.)

Like the Romero court, we reject the Ninth Circuit’s attempt to write additional requirements into the statute. It provides an enhanced penalty where the defendant specifically intends to “promote, further, or assist in any criminal conduct by gang members.” There is no statutory requirement that this “criminal conduct by gang members” be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.
Here, substantial evidence established what appellant now concedes on appeal: that he is a member of 18th Street, a criminal street gang whose members engage in all types of crime “from simple graffiti to weapons possession, possession of narcotics, assaults, shootings involving other gang members and police officers, all the way up to and including murder.” Appellant’s murder of Lopez benefitted 18th Street because violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, “fearful to come forward, assist law enforcement, testify in court, or even report crimes that they’re victims of for fear that they may be the gang’s next victim or at least retaliated on by that gang . . . .” This intimidation, obviously, makes it easier for the gang to continue committing the crimes for which it is known, from graffiti to murder.

Appellant arrived at the scene of this murder with two other gang members who encouraged him to shoot Lopez despite Flores’ pleas that Lopez was not a gang member. He fled the scene with the same gang members, and was assisted by other gang members and associates as he attempted to evade arrest. The murder occurred in a neighborhood claimed by three rival gangs, including appellant’s, and in an alley that is scarred by gang graffiti. Lopez was only a few feet away from a piece of 18th Street graffiti that “defaced” or disrespected graffiti created by one of the rival gangs, Krazy Crowd 13. Appellant may have mistaken Lopez for a member of Krazy Crowd 13 because Lopez dressed and wore his hair in a style favored by that gang as well as by his own.

Appellant concedes that he intended to kill Lopez, and that he committed the murder for the benefit of 18th Street. A reasonable jury could also infer from the evidence that appellant specifically intended for the murder to promote 18th Street’s criminal activities by intimidating neighborhood residents, retaliating against Krazy Crowd 13 for claiming 18th Street territory, and solidifying 18th Street’s control over the alley. The jury’s true finding on the gang enhancement allegation is supported by substantial evidence.

Restitution Fine
At the sentencing hearing, the trial court made this order concerning restitution: “Okay, the court is going to impose a restitution fine of $10,000 pursuant to Penal Code section 1202.4. That’s to be paid from prison earnings. If actual restitution is ordered, the restitution fine will be stayed pending payment of actual restitution. If actual restitution is paid in full, all but $200 of the restitution fine will be stayed. [J] The court will also impose a parole revocation fine of $10,000 pursuant to Penal Code section 1202.45, and that will be stayed pending completion of parole. If parole is successfully completed, it will be permanently stayed.”

Appellant contends, and respondent correctly concedes, that the trial court erred. Section 1202.4, subdivision (f) provides that the trial court “shall require that the defendant make restitution to the victim . . . [,]” and that it “shall impose a separate and additional restitution fine . . . .” (§ 1202.4, subd. (b).) There is no basis in the statute for offsetting direct payments to the victim against the amount of the restitution fine, or for conditioning the amount of the restitution fine on full payment of “actual restitution[.]” (See, e.g., People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) In addition, section 1202.45 requires the trial court to impose a parole revocation restitution fine “in the same amount as” the restitution fine imposed pursuant to section 1202.4, subdivision (b). (People v. Smith (2001) 24 Cal.4th 849, 853.) The trial court’s order violates this rule because the amount of the restitution fine is conditioned on appellant’s payment of direct victim restitution and is not, therefore, in the same amount as the parole revocation fine.

Because “a trial court has no choice and must impose a parole revocation fine equal to the restitution fine whenever the ’sentence includes a period of parole[,]‘ ” we can correct the error without remanding for further proceedings. (Id.) Accordingly, we modify the judgment to impose a restitution fine, pursuant to section 1202.4, subdivision (b), in the amount of $10,000 and a parole revocation restitution fine, pursuant to section 1202.45, in the amount of $10,000. The clerk of the superior court is ordered to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting these modified fines. As so modified, the judgment is affirmed.

CERTIFIED FOR PUBLICTION
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.

Vernon Meigs, Judge
Superior Court County of Los Angeles
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General, for Plaintiff and Respondent.

However, even doctors, patients, and caregivers can still be arrested and criminally prosecuted for possessing marijuana. The California courts have held that a defendant charged with a marijuana crime must raise reasonable doubt regarding the compassionate use defense. So a person can still be arrested and criminally prosecuted for possession and/or transportation of marijuana.

Shouldn’t the threat of arrest and prosecution be enough to insure
that dispensaries operate legally?

By: Fay Arfa, Los Angeles Criminal Defense Attorney