People v. Sanchez

THE PEOPLE, Plaintiff and Respondent, v. BOBBY TYLER SANCHEZ, Defendant and Appellant.

B225595

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Dated: August 11, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA090076)

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Modified and, as so modified, affirmed.

Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.

Bobby Tyler Sanchez appeals the judgment entered following his conviction by jury of attempted robbery and evading a peace officer with willful disregard for the safety of persons or property. (Pen. Code, §§ 664/211; Veh. Code, § 2800.2.)

Sanchez contends the trial court committed instructional and Faretta error (Faretta v. California (1975) 422 U.S. 806), and the evidence does not support the conviction of evading a peace officer. We reject these contentions and affirm the judgment as modified to reduce Sanchez's conduct credit.

FACTS AND PROCEDURAL BACKGROUND

1. The prosecution's evidence.

On March 23, 2010, at approximately 10:00 a.m., Rocio Elias was at Lube Express in Hacienda Heights getting her vehicle's oil changed. Elias walked outside to make a call on her cell phone. As Elias spoke on the phone, Sanchez approached and asked for her purse, which was on a strap over her left shoulder. Initially, Elias did not realize what was happening. Sanchez asked for the purse in a "[r]eally low, calm voice." Elias testified, "It was just like, 'Give me your purse,' like kind of silently. He wasn't screaming. He wasn't aggressive about it. . . . That's why it didn't register at first what he was asking for." Elias believed she "said no and kind of started screaming. I believe he kind of tried to grab ahold of my purse. We struggled for it. I was screaming so loud[,] he let go of it and walked away. [¶] At that time I was on the floor." Elias testified she "must have slipped in the struggle." Elias recalled experiencing pain on her upper lip but does not recall Sanchez striking her. Elias opined the injury might have been caused by her cell phone "or something, when I was falling."

Elias, who is five feet one inch tall, screamed "maybe five times" to alert the people in the Lube Express that she needed help. Sanchez, who was "definitely" "a lot taller and [more] muscular" than Elias, did not speak during the struggle for the purse. "[H]e just let go, and he just walked away."

Within five minutes of the incident, an undercover police officer arrived at the Lube Express. Elias told the officer "some guy just tried to take my purse, tried to mug me." Elias testified she told the officer she did not know if the attacker hit her in the face or if she hit herself with the cell phone.

Los Angeles County Sheriff's Sergeant Grayson Kline, the officer to whom Elias spoke shortly after the incident, was seated in an unmarked vehicle when he saw Sanchez being chased by four men wearing mechanic suits who were yelling, "robbery, robbery." Sanchez ran to a Toyota van and drove from the scene in reverse at a high rate of speed. Kline directed uniformed deputies who were present in the parking lot to stop the van. Sanchez swung the van around, so he no longer was driving in reverse, and continued at a high rate of speed to Colima Road. Kline then went to the Lube Express and spoke to Elias, who was very scared and in tears. Elias said "a man punched her in the face and tried to take her purse."

Los Angeles County Sheriff's Sergeant Michael Galvan was driving an unmarked patrol vehicle on Colima Road when he saw Sanchez driving through the parking lot at a high rate of speed. Galvan had not received any information about the van prior to seeing it. Sanchez exited the parking lot and drove west on Colima Road. Galvan, who was wearing a sheriff's uniform, drove into the parking lot and saw deputies in marked patrol vehicles motion toward the van. Galvan formed the opinion a crime had occurred and drove to an alley in the parking lot. Within seconds, Galvan saw the van travelling north at approximately 25 to 35 miles per hour in the alley, which had no posted speed limit. The van made a left turn onto Pepper Brook Way, failing to stop for a stop sign. Galvan followed the van north onto Manor Gate Road. Without stopping for a posted stop sign, the van turned left onto Wedgeworth Drive, a residential street with a speed limit of 25 miles per hour. Shortly thereafter, Galvan received information indicating a crime had occurred. Galvan "initiated a vehicle pursuit" "a little past midblock" on Wedgeworth Drive.

Galvan's unmarked vehicle has a red light in the center of the windshield and has amber and blue lights in the rear. When Galvan initiated the pursuit, he turned on the siren and all the emergency lights and the headlights began to "flicker on and off." As Galvan followed Sanchez on Wedgeworth Drive, Sanchez looked into the rearview mirror, then looked over his shoulder at Galvan. When Galvan came within view of the van, the van accelerated away from Galvan "a little bit."

The van continued north, then turned left on Eagle Park Road, went along a grassy area adjacent to a sidewalk, made a right turn into a driveway of a condominium complex and crashed into a garage, causing damage to the building. Galvan chased the van for approximately one minute and 40 seconds over a distance of less than half a mile.

After the van crashed, Sanchez ran north through a walkway. He was arrested later that day in conjunction with the service of a search warrant at a condominium in the complex.

2. Sentencing.

The trial court found Sanchez had one prior conviction within the meaning of the Three Strikes law (Pen. Code, §§667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and Penal Code section 667, subdivision (a)(1), and that he had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Sanchez to 13 years in state prison and awarded him two days of conduct credit for every two days in actual custody pursuant to the provisions of former Penal Code section 4019, subdivisions (b)(1) and (c)(1).

CONTENTIONS

Sanchez contends the trial court erroneously denied his requests for self-representation, the conviction of attempted robbery must be reversed for failure to instruct on the lesser included offense of attempted grand theft from the person, and the evidence does not support the conviction of evading of peace officer with reckless disregard for the safety of persons or property.

The People contend the judgment must be modified to reduce Sanchez's conduct credit.

DISCUSSION

1. The trial court properly denied Sanchez's untimely requests for self-representation.

a. Additional background.

On April 22, 2010, Sanchez appeared for sentencing on a pending misdemeanor and arraignment in this case. Sanchez pleaded not guilty and rejected a plea offer of seven years and eight months. After the trial court continued the matter for a readiness conference on May 18, 2010, and jury trial on May 20, 2010, Sanchez requested substitution of appointed counsel.

In response to Sanchez's request, the trial court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, at which Sanchez stated he was unhappy with "the progress of [his] case" and with defense counsel's disclosure to Sanchez's family of information Sanchez had discussed with counsel. Sanchez also complained about the plea negotiations and defense counsel's asserted lack of familiarity with the case, including the alleged prior conviction. Sanchez asserted counsel was not defending him to the best of her abilities.

In response, defense counsel described her lengthy experience as a public defender and denied disclosing confidential information. Counsel indicated she had reviewed the police report and the reporter's transcript of the preliminary hearing and had ordered documents related to the prior conviction. Counsel described the status of the plea negotiations and counsel's efforts to obtain a more favorable deal. At the end of the hearing, the court denied Sanchez's request, finding he had failed to establish good cause for the appointment of new counsel.

On Tuesday, May 18, 2010, at the readiness conference, defense counsel advised the trial court Sanchez wished to continue the matter to allow Sanchez to study the "paperwork" in the case. The trial court denied the request, finding Sanchez would have adequate time to review a police report and a reporter's transcript in that a panel of prospective jurors would not be called until Friday, May 21, 2010.

On that date, the parties appeared for trial and announced ready. After the trial court directed the bailiff to bring a panel of prospective jurors into the courtroom, Sanchez asked to "go pro per" and indicated he had been requesting that status "since yesterday." The trial court denied the request as untimely, noting prospective jurors were waiting outside the courtroom. Sanchez protested he had asked to represent himself "two court days ago." The trial court indicated it was unaware of that request. However, the current request was untimely "given the fact that we have 40 jurors standing outside the courtroom."

Sanchez stated he was prepared to represent himself without a continuance but the trial court again denied the motion as untimely. Sanchez then said his mot...