Opinion
A148693
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. AKIM WAYNE JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H53783) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Defendant appeals from a judgment of conviction following his negotiated plea of no contest to: two counts of second degree robbery (Pen. Code, § 211—counts 2 & 5) with a 10-year personal use of a firearm enhancement as to count 5, and one count of grand theft from a person (§ 487, subd. (c)). His sole contention on appeal is that the trial court abused its discretion in denying his Marsden motion. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
During the preliminary hearing, three victims, one of whom was 16 at the time of the charged offense, testified to three different incidents in which defendant booked prostitution services online and subsequently robbed each of the victims. Two of the victims claimed defendant robbed them at gunpoint. The 16-year-old victim claimed defendant also raped her and forced her to orally copulate him.
Defendant was held to answer and charged by information with three counts of second degree robbery (§ 211—counts 1, 2, & 5), forcible rape of a minor (§ 261, subd. (a)(2)—count 3), forcible oral copulation (§ 288a, subd. (c)(2)(A)—count 4), and kidnapping (§ 209, subd. (b)(1)-count 6). It was further alleged defendant personally used a firearm as to counts 1, and 3 through 6 (§§ 12022.5, subd. (a), 12022.53, subd. (b), 12022.53, subd. (g)). A conviction on these charges would have carried an "extraordinarily high number of years of exposure."
Defendant subsequently agreed to a negotiated disposition. At the change of plea hearing, the trial court ensured defendant had had an opportunity to discuss with his lawyer the charges filed against him, the defenses to those charges, and all of his rights he would be waiving by entering into a plea deal. Defendant confirmed that no "threats" had been made against him "to induce" him to enter the negotiated disposition.
When the court asked defendant what his plea was as to count 5 of the information, defendant responded "I'm forced to plead no contest." The court clarified, "I know you're saying you're forced to plead no contest but are you pleading no contest of your own free will, sir?" Defendant replied, "Yeah." Defendant then pleaded no contest to the remaining counts covered by the deal. In accepting his plea, the court determined defendant understood the nature of the crimes charged, the consequences of a conviction and that he "freely, intelligently and voluntarily" waived his rights.
Prior to sentencing, defendant aired a number of grievances, which the court deemed to be a motion to withdraw his plea and a request for a Marsden hearing.
Defendant made an earlier Marsden motion before the preliminary hearing, which the trial court denied. After the preliminary hearing, defendant represented himself in propria persona until he asked for and was assigned a different public defender. Before the preliminary hearing, the prosecutor made a 10-year offer with no sex registration requirement, if defendant pled to two counts of robbery. --------
At the Marsden hearing, defendant separately addressed what he described as the "irreconcilable difference[s]" and "lack of diligence" aspects to his motion. He identified multiple grievances as to each aspect. However, the only one relevant on appeal is defendant's assertion that he was forced into the plea deal because his lawyer was going to concede guilt as to the " 'robberies.' " While defendant acknowledged "the jury is probably going to be not understanding the whole life and culture, the nature of my crime," he asserted he had the right to "have a lawyer that actually want[s] to investigate things on my behalf and not say things I didn't do just for his tactics."
Defendant's public defender, Benjamin Chiang, acknowledged he wanted to "ask the People" in his opening statement "to find [defendant] guilty of a robbery, but not rape, not use of a firearm and no kidnapping, in order to save his life." Chiang had told defendant that once trial started, defendant was "looking at life," and that he anticipated he would do "significantly worse than the 17 [years offered] because of what he's already admitted to."
The court then inquired about the "admissions" counsel referenced.
Chiang responded that defendant had admitted "that he was there with them, and all three girls were adamant that not only did he pay them, but that he then robbed them of the money after the sexual act." Defendant also lied to the police about only receiving oral sex from one woman, as a "condom with [defendant]'s semen in it" was "recovered by the police." Although defendant had asked counsel not to do DNA testing on the condom as he "fully indicated that it would be his DNA," the police did their own testing and the results came back as a "match [to] his DNA." Thus, defense counsel was sure that in regards to robbery, the district attorney had a "fairly airtight 211 count."
Additionally, as to the "life count" which occurred at his house, defendant admitted to calling the prostitute over. Further, all three victims identified defendant and two identified his red Mustang. Finally, the district attorney had obtained photographs of defendant posing with various firearms, which counsel and defendant had discussed as not being "a good piece of evidence."
Chiang stated he had gone back and forth with the district attorney "no less than, I would say, 20, 30 times discussing offers," video interviewed defendant on three separate occasions, and reviewed taped interviews.
The court denied the Marsden motion. It began by stating its recollection that "the DNA [sic] had a very, very strong case against you, [], involving a series of strike sexual assault allegations, robbery allegations, kidnapping allegations, and there's a life top on the case. There was an extraordinarily high number of years of exposure in this case." There had been discussion over "some period of months" about resolving the case through a plea deal, and as the trial date grew closer, the district attorney had discovered additional evidence, namely photographs of defendant with firearms, and she was "quite pleased" with this discovery.
The court noted defendant was "extremely intelligent," and "one of the brightest people I've seen come through this court in your situation," and the record reflected "how strong minded" defendant was and that defendant also had "the ability to be very resistant and difficult." In short, the court stated, it just did not "believe" defendant when he said he was "pushed into doing something you don't want to do." In sum, the court concluded counsel's "competence in this case has been of an extraordinarily high level" and that there were no irreconcilable differences.
As a result of the negotiated plea, whereby defendant pleaded no contest to two counts of second degree robbery (counts 2 & 5), with a 10-year personal use of a firearm enhancement as to count 5, and one count of grand theft from a person (§ 487, subd. (c)) a lesser included offense of count 1, defendant was sentenced to 16 years eight months.
Defendant contends the trial court abused its discretion in denying his Marsden motion "because defense counsel planned to concede guilt on at least one robbery count in his opening argument." Specifically, defendant contends counsel's planned concession constitutes ineffective assistance of counsel.
"The denial of a Marsden motion is reviewed on appeal for an abuse of discretion. [Citation.] In this context, an abuse of discretion does not exist unless the defendant's right to assistance of counsel was substantially impaired from the failure to replace the defendant's attorney." (People v. Loya (2016) 1 Cal.App.5th 932, 944.)
"A criminal defendant's federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice. . . ." (People v. Mai (2013) 57 Cal.4th 986, 1009.) "[A] defense attorney's concession of his client's guilt, lacking any reasonable tactical reason to do so, can constitute ineffectiveness of counsel." (People v. Gurule (2002) 28 Cal.4th 557, 611 (Gurule).)
In Gurule, supra, 28 Cal.4th 557, cited by the People, defense counsel told the jury " 'There's no question in this case that two people robbed young Elliot Dolinka. There's no question that Mr. Gurule and Mr. Garrison were those two people. The issue for you to decide in the guilt portion of the case is who killed Elliot Dolinka, also, what intent, if any, Mr. Gurule may have had with regard to the death of Elliot Dolinka." (Id. at p. 611.) The court, noting defendant had admitted his participation in the robbery to the police, ruled counsel was not ineffective for conceding defendant's guilt of robbery and first degree murder in the opening statement. (Id. at pp. 611-612.)
In People v. Samayoa (1997) 15 Cal.4th 795, 846 (Samayoa), the court likewise concluded counsel was not ineffective for having conceded defendant's guilt of first degree murder and burglary in counsel's opening statement, and instead arguing defendant had no intent to kill. The court ruled that such a concession was a tactical determination on counsel's part, given the "overwhelming evidence of defendant's guilt." (Ibid.)
Defendant contends that unlike Gurule and Samayoa, here "there is no evidence that appellant made any admissions of criminal conduct to law enforcement." However, these cases do not stand for the proposition that admissions of guilt need to be made to law enforcement. Instead, they state that "where the evidence of guilt is quite strong," adopting a " ' more realistic approach' " by conceding guilt on some issues is a tactical determination counsel can make. (Gurule, supra, 28 Cal.4th at p. 612; Samayoa, supra, 15 Cal.4th at p. 846.) Here, there was ample evidence of defendant's guilt. The court noted the district attorney "had a very, very strong case against" him. This included DNA evidence that defendant had been with at least one victim, defendant's own admission to being with the women, one of whom was a minor, and his admission that she was at his house. The minor victim was able to describe distinct aspects of defendant's house which matched photos police found. Additionally, all three women "were adamant that not only did he pay them, but that he then robbed them of the money after the sexual act." There were also pictures of defendant with various firearms. Finally, all three women described and identified defendant, two of them having picked defendant out of a line-up, and two identified his red Mustang.
Given the weight of the evidence against defendant, a concession of guilt to a robbery, in an effort to put forth a viable defense that defendant was not guilty of rape, kidnapping, and personal use of a firearm enhancement was a reasonable "considered tactical determination" on counsel's part. (Gurule, supra, 28 Cal.4th at p. 612; Samayoa, supra, 15 Cal.4th at p. 846.) Under these circumstances, we conclude counsel was not ineffective for considering admitting defendant's guilt of robbery in his opening statement. (See People v. Mayfield (1993) 5 Cal.4th 142, 177 ["candor may be the most effective tool available to counsel"]; see also People v. Freeman (1994) 8 Cal.4th 450, 498 ["Recognizing the importance of maintaining credibility before the jury, we have repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt."].) Therefore, the court did not abuse its discretion in denying defendant's Marsden motion.
Furthermore, defendant has failed to show prejudice. Defendant maintains that but for counsel's planned concessions, there is a reasonable probability that " 'he would not have pleaded guilty and would have insisted on going to trial.' " Defendant states he was "forced to plead guilty" citing his testimony at the plea hearing. However, he neglects to mention that the court clarified he was pleading no contest to the charges of his own free will, no one had made threats to induce him to plead, and that he understood the consequences of his plea. Additionally, the court determined during the Marsden hearing that defendant was "extremely intelligent" and "very strong minded," and the court did not believe counsel "forced" him to do something he was not "willing to do." As the court observed, "no one makes you do anything," further noting "I just flat don't believe you when you say you got pushed into doing something you don't want to do." Though defendant was "resistant to taking any deal," he did in fact voluntarily do so after counsel had discussed offers with the district attorney "20, 30 times" over the course of many months.
Defendant has thus failed to show there is a reasonable probability that he would not have pleaded guilty, absent counsel's planned concession of guilt. (Hill v. Lockhart (1985) 474 U.S. 52, 58-59; Strickland v. Washington (1984) 466 U.S. 668, 687.)
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.