Filed 2/29/16 P. v. Knox CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062329
v. (Super.Ct.No. FSB1300763)
CHRISTOPHER LEE KNOX, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,
Jr., Judge. Affirmed with directions.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal, Andrew S.
Mestman, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
A jury found defendant and appellant, Christopher Lee Knox, guilty as charged of
pandering by procuring a minor 16 years of age or older (Pen. Code, § 266i, subd. (b)(1),
count 1),1 pimping a minor 16 years of age or older (§ 266h, subd. (b), count 2), and
human trafficking of a minor for a sex act (§ 236.1, subd. (c)(2), count 3). The victim of
each crime was Jane Doe, a 16 year old who had previously worked as a prostitute. The
jury also found true a “use of force” enhancement in count 3. The court found that
defendant had one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)),
one prior serious felony conviction (§ 667, subd. (a)(1)), and two prison priors (§ 667.5,
subd. (b)), and it sentenced defendant to 36 years to life in prison.2 3
On this appeal, defendant makes three claims of error. He first claims the trial
court abused its discretion and structurally erred, requiring automatic reversal of his
convictions, in refusing his request to discharge his privately-retained trial counsel on the
second day of trial, just before jury selection was to begin. Second, he claims the court’s
instructions on the use of force enhancement allegation were ambiguous and allowed the
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant’s 36-year-to-life sentence was comprised of 30 years to life on count 3, the principal count (15 years to life, doubled to 30 years to life based on his prior strike conviction), a consecutive five-year term for his prior serious felony conviction, and a consecutive one-year term for one of his two prison priors. Additional terms were imposed but stayed on counts 1 and 2 and on the second prison prior.
3 The minute order and abstract of judgment erroneously imposed a consecutive one-year term for defendant’s second prison prior, for a total prison sentence of 37 years to life.
2 jury to find the allegation true if a person other than he used force against Jane in the
commission of count 3. Lastly, he claims the court miscalculated his custody credits.
The People concede, and we agree, that defendant was entitled to additional custody
credits. We reject defendant’s other claims of error, and affirm the judgment in all other
respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
Codefendant Rickiya Fulcher4 worked as a prostitute for defendant. On February
23, 2013, Fulcher met Jane, a 16-year-old runaway, while they were both working as
prostitutes on Baseline Road in San Bernardino. The next morning, Jane was standing at
a bus stop when defendant and Fulcher pulled up in defendant’s car. After Jane got into
the car, defendant asked Jane if she had a pimp; she said she did not but was looking for
one. Defendant began talking to Jane about “choosing up,” and Jane offered to be
defendant’s prostitute. Defendant made Jane give him all of the money she had earned
the previous night as a “choosing fee.”
Later that day, Jane went with defendant and Fulcher to the Golden Star Inn in San
Bernardino. While Fulcher was in the shower, defendant pulled out a Taser, grabbed
Jane’s face and told her that he wanted her “to be down for us and loyal.” Fulcher later
4 Fulcher was charged with pandering by procuring a minor 16 years of age or older. (§ 266i, subd. (b)(1).) Pursuant to a plea agreement, she pled guilty to placing a person for immoral purposes (§ 266e) and was sentenced to three years in prison, but she was to be resentenced to four years’ probation upon the condition she testified truthfully against defendant and violated no laws.
3 told Jane defendant tased her in the past, and “he will tase you, too.” Later that day,
defendant bought clothes and a prepaid cell phone for Jane. He then dropped Jane and
Fulcher off on Baseline Road to work.
Later that evening, around 6:00 p.m. on February 24, Jane was approached on
Baseline Road by the police, who suspected her of being a prostitute. Jane admitted she
was working for a pimp, and agreed to make a pretext call to defendant. On the phone,
defendant instructed Jane to return to the Golden Star Inn. Jane and the police went to
the motel and waited for defendant. After seeing defendant’s vehicle drive past the
motel, the police followed defendant to a gas station, where they arrested him. Defendant
was in possession of $3,571 in cash and a cell phone. Inside defendant’s vehicle, the
police found a Taser matching the description Jane gave them of the Taser defendant
threatened her with inside the motel room.
B. Defense Evidence
Defendant did not testify, but called Tera Mann, his girlfriend of 11 years, and the
mother of their two children, to testify in his defense. Mann testified that she did not
believe defendant was a pimp. Mann also testified that, on the day he was arrested,
defendant was at Mann’s mother’s house with Mann, their children, defendant’s mother,
and his sister. Mann conceded that defendant left at around 7:00 p.m. to buy drinks for
their baby. Sometime after he left to go to the store, he was arrested.
4 III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Motion to
Replace His Retained Trial Counsel
Defendant contends the trial court abused its discretion in denying his motion to
replace his privately-retained trial counsel. He argues the trial court, in denying his
motion, improperly applied the Marsden5 factors, which only apply in considering a
motion to discharge appointed counsel, not retained counsel. We conclude the trial court
acted within its discretion and relied on the correct factors in denying defendant’s motion.
1. Background: Motion Hearing to Discharge Retained Counsel
On Thursday, August 22, 2013, approximately six months after defendant’s arrest,
and approximately five and a half months after defendant retained trial counsel, counsel
for both the People and defendant announced ready for trial. That day, the court heard
and granted the prosecution’s first in limine motion, declaring Jane unavailable for
purposes of trial, and allowing the parties to introduce her preliminary hearing testimony
in lieu of live testimony. Because the court was not in session on Friday, it reserved
consideration of the remaining pretrial motions until Monday, August 26, 2013.
When court reconvened on Monday, August 26, 2013, defense counsel advised the
court that defendant “would like to replace me, fire me as an attorney of record for him.”
The trial court then stated: “[W]hat I’m going to do is I’m going to conduct a Marsden
5 People v. Marsden (1970) 2 Cal.3d 118.
5 Hearing. I’m not sure if that’s actually the appropriate hearing, but I am going to hear
your issues. That will be done in a closed courtroom.”
During the closed hearing, the court asked defendant why he wished to discharge
his retained counsel. Defendant responded, “we haven’t had preparation, enough time to
prepare for, um, the case,” “we haven’t gotten discoveries on time,” “I feel like that my
lawyer doesn’t have as much confidence in, you know, representing me to my best
ability,” “we haven’t been able to file like motions [sic],” and “we haven’t had enough
communication throughout this time for a trial.” He also expressed displeasure that “we
haven’t been able to get, um, any investigators towards witnesses.”
The court asked defense counsel about his criminal law experience. Counsel
responded that his experience included “attempted murder, Three Strikes cases, um, a
million drug cases, um, burglary, um, robbery. The list goes on.” Counsel also advised
the court that he had been “involved in” four to five jury trials.
Defense counsel admitted that, within the past few weeks, defendant had disagreed
with his “judgment calls” and that, as a result, “[w]e don’t talk too much about the case
anymore.” He also informed the court that defendant’s wish to fire him was “fifty-fifty
with tactical, and just two different personalities that are not relating to each other well.”
Although he asserted he was still ready for trial and could “do the case, um,
successfully—successfully, successfully represent him,” he conceded that “if he wants a
new attorney, so be it for him.” Defense counsel further admitted that, at no time prior to
announcing ready for trial on Thursday, August 22, 2013, did defendant indicate to trial
6 counsel that he wanted new counsel. The court did not inquire, and neither defendant nor
his trial counsel advised the trial court, whether defendant had identified or retained new
trial counsel.
The trial court denied defendant’s motion, noting both sides had announced ready
on August 22, 2013, and the court had begun considering the People’s in limine motions,
without defendant informing his counsel or the court of his desire to seek new counsel. It
characterized defendant’s motion as “a delay tactic” “[b]ecause it was not brought before
this Court prior to or even during the motion stage of the case.” The court also noted that
jury selection was to begin at 1:30 p.m. that afternoon.
2. Analysis
“‘The right to retained counsel of choice is—subject to certain limitations—
guaranteed under the Sixth Amendment to the federal Constitution. [Citations.] In
California, this right “reflects not only a defendant’s choice of a particular attorney, but
also his decision to discharge an attorney whom he hired but no longer wishes to retain.”
[Citations.]’” (People v. Maciel (2013) 57 Cal.4th 482, 512.)
The right to discharge a retained attorney is “‘not absolute,’” as the trial court has
discretion to “‘“deny such a motion if discharge will result in ‘significant prejudice’ to
the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the
orderly processes of justice . . . .’”’ [Citations.]” (People v. Maciel, supra, 57 Cal.4th at
p. 512, quoting People v. Ortiz (1990) 51 Cal.3d 975, 984.) In considering such a
motion, the trial court “‘must exercise its discretion reasonably,’” balancing “‘the
7 defendant’s interest in new counsel against the disruption, if any, flowing from the
substitution,’” and it cannot demand on “‘“a myopic insistence upon expeditiousness in
the face of a justifiable request for delay . . . .”’” (People v. Keshishian (2008) 162
Cal.App.4th 425, 429.)
“When a defendant makes a ‘timely motion to discharge his retained attorney,’”
unlike when a defendant seeks to discharge appointed counsel, “he is not required to
demonstrate ‘inadequate representation by his retained attorney, or to identify an
irreconcilable conflict between them.’ [Citations.]” (People v. Maciel, supra, 57 Cal.4th
at p. 512.) Though “the erroneous denial of a motion to substitute counsel constitutes
structural error and mandates reversal of the defendant’s conviction without requiring a
showing of prejudice[,] . . . we apply an abuse of discretion standard of review to a trial
court’s denial of a motion to relieve retained counsel.” (People v. Dowdell (2014) 227
Cal.App.4th 1388, 1411, fn. omitted.)
Defendant claims the trial court abused its discretion in denying his motion to
discharge his retained counsel because it referred to the closed hearing as a “Marsden
hearing,” and erroneously applied the Marsden standard, rather than the Ortiz standard, in
denying the motion. We find no abuse of discretion.
In Maciel, the court rejected an argument similar to the one defendant raises here.
(People v. Maciel, supra, 57 Cal.4th at pp. 511-514.) The trial court in Maciel
incorrectly referred to the defendant’s motion to discharge his retained counsel as a
“‘Marsden motion,’” and, in denying the motion, pointed out that it “did not ‘think’” trial
8 counsel was “‘incompetent’” or had “‘abandoned’ defendant.” (Id. at p. 513.) The trial
court also explained, however, that bringing the motion “‘on the eve, literally, of a trial
date’” was not timely, particularly where the defendant could have raised the issue in
prior appearances. (Id. at pp. 511-513.) The Maciel court thus concluded that the motion
was property denied, and explained that: “Although a defendant seeking to discharge his
retained attorney is not required to demonstrate inadequate representation or an
irreconcilable conflict, this does not mean that the trial court cannot properly consider the
absence of such circumstances in deciding whether discharging counsel would result in
disruption of the orderly processes of justice.” (Id. at p. 513.) In sum, the Maciel court
concluded that the motion was properly denied because it would have significantly
delayed the trial, and thus would have resulted in the “disruption of the orderly processes
of justice.” (Ibid.)
Contrary to defendant’s assertion, the trial court here did not rely solely on the
Marsden factors in denying defendant’s motion to discharge counsel. Rather, the trial
court determined defendant’s motion was not timely, as he had not voiced his desire to
discharge counsel prior to announcing ready for trial and before the parties had begun
arguing motions in limine, and because jury selection was to begin that afternoon. The
court reasonably referred to the motion as a “delay tactic,” and, in denying the motion,
properly focused on and properly determined that the motion was untimely because it
would have unreasonably delayed the trial. Thus here, the trial court did not abuse its
discretion in denying defendant’s motion to discharge his retained counsel.
9 Further, the trial court’s denial of defendant’s last-minute attempt to discharge his
counsel was not based on “‘“a myopic insistence upon expeditiousness.”’” (People v.
Keshishian, supra, 162 Cal.App.4th at p. 429.) Defendant was given an opportunity to
explain his wish to discharge counsel, and as discussed, explained that he and his counsel
did not have “enough time to prepare for, um, the case.” His counsel represented,
however, that he had had sufficient time to prepare the case and was ready to proceed
with trial. The trial court properly denied the motion, given defense counsel’s
representation that he had had enough time to prepare for the trial and could “successfully
represent” defendant.
Defendant maintains his motion was not a “delay tactic” and was made “not for
delay’s sake,” but so that he could retain new counsel. He points out that his request was
made only two weeks after the People amended the information to add the human
trafficking charge, which increased his potential prison sentence from a six-year term to a
lifetime sentence, and after the case had only been pending for six months. He also
asserts the trial court did not determine whether granting his motion would result in an
“unreasonable disruption.” For the reasons explained, we disagree. The court’s
comments at the closed hearing show that it properly focused on whether the motion
would unreasonably delay the trial, and whether defendant had a reasonable opportunity
to replace his retained counsel before trial. And, even with the recently amended
information, defense counsel represented to the court that he had had sufficient time to
prepare for trial.
10 People v. Turner (1992) 7 Cal.App.4th 913 is instructive. There, the defendant
sought to discharge his trial counsel over tactical disagreements on the first day of trial,
and approximately two months after trial counsel began his representation of the
defendant. (Id. at pp. 915-916.) The Turner court concluded that the trial court did not
err in denying the defendant’s motion to discharge counsel on the morning of trial, as it
could not have granted the motion without causing a “significant disruption.” (Id. at p.
919.) Although it was disputed whether the defendant’s counsel was appointed or
retained, the court explained that its conclusion would be the same regardless of the
distinction. (Id. at pp. 918-919.)
Keshishian is also instructive. There, the court concluded the trial court did not err
in denying the defendant’s request to discharge his retained counsel, in whom the
defendant had “lost confidence,” when the request was made on the day of trial, and
when the defendant had not identified or retained new counsel. (People v. Keshishian,
supra, 162 Cal.App.4th at pp. 427-428.) The court explained that the “‘“right to counsel
cannot mean that a defendant may continually delay his day of judgment by discharging
prior counsel,”’ and the court is within its discretion to deny a last-minute motion for
continuance to secure new counsel. [Citations.]” (Id. at p. 429.)
People v. Lara (2001) 86 Cal.App.4th 139, upon which defendant relies, does not
support his position. The Lara court concluded that the trial court abused its discretion in
denying the defendant’s motion to discharge his retained counsel, but unlike the trial
court in Maciel, the Lara court relied solely on the Marsden factors in denying the
11 motion. (People v. Lara, supra, at pp. 165-166.) Specifically, the trial court in Lara
looked only at the “breakdown in the attorney/client relationship that Marsden is looking
at,” along with the defendant’s counsel’s experience and abilities, and it did not consider
whether granting the motion would have resulted in “significant prejudice” to the
defendant, or a “disruption of the orderly processes of justice.” (Id. at pp. 148, 155, 165-
166.) In sum, the trial court did not abuse its discretion in denying the defendant’s
motion to discharge his attorney.
B. The Jury Was Properly Instructed on the Use of Force Enhancement
Defendant contends the trial court’s instruction on the use of force enhancement
was erroneous, because its use of the term “the offense involved” allowed the jury to find
defendant guilty even if the jury determined that someone other than defendant used
force in the commission of the count 3 human trafficking charge.
Section 236.1, subdivision (c) criminalizes the “human trafficking” of minors for a
sex act. Section 236.1, subdivision (c)(2) provides for an enhanced penalty of 15 years to
life, and a fine of up to $500,000, “when the offense involves force, fear, fraud, deceit,
coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another
person.”
The parties jointly modified the human trafficking and use of force enhancement
instructions. After instructing the jury on the elements of the human trafficking charge in
count 3, the court instructed the jury on the use of force enhancement that: “If you find
the defendant guilty of the crime charged in Count 3, or of attempting to commit that
12 crime, you must then decide whether the People have proved the additional allegation
that the offense involved force, fear, fraud[,] deceit, coercion, violence, duress, menace, or
threat of unlawful injury to the victim or to another person.” (Italics added.) The court
also instructed the jury that: “IT IS FURTHER ALLEGED AS TO COUNT 3, that in the
commission of the above offense, the defendant, Christopher Lee Knox, used force, fear,
fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the
victim or to another person . . . .” (Italics added.)
There is a presumption that jurors are intelligent persons and capable of
understanding and correlating all jury instructions that are given. (People v. Guerra
(2006) 37 Cal.4th 1067, 1148, overruled on other grounds in People v. Rundle (2008) 43
Cal.4th 76, 151; People v. Anderson (2012) 208 Cal.App.4th 851, 896.) Because of this
presumption, a reviewing court considers the instructions as a whole to determine
whether there is a reasonable likelihood the jury was misled. (People v. Tate (2010) 49
Cal.4th 635, 696.) In doing so, we independently determine whether the instructions
correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Valencia
(2015) 240 Cal.App.4th Supp. 11, 17.) In determining whether the jury properly
understood and applied the instructions, a commonsense understanding of the
instructions, in light of all that has taken place at trial, must prevail over “‘technical
hairsplitting.’” (People v. Williams (1995) 40 Cal.App.4th 446, 457.) Errors cannot be
based on verbal inaccuracies in some parts of the instructions, and they may not be
13 predicated on isolated phrases, sentences or excerpts that are open to criticism. (People
v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075.)
Considering the entire charge of the court, the use of force instruction
unambiguously identified defendant as the person who was alleged to have used force,
fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury in
committing the human trafficking charge. In finding the use of force enhancement
allegation true, the jury signed a verdict form for the use of force enhancement, which
stated: “We the jury, in the above-entitled action find the allegation that in the
commission of the offense in Count 3, the defendant, Christopher Lee Knox, used force,
fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the
victim or to another person . . . .” (Italics added.) Based on all of the instructions and
evidence the jury received, there was no reasonable likelihood that the term “the offense
involved” confused the jury into finding the use of force enhancement true based on
someone other than defendant’s use of force.
Defendant argues that it was reasonably probable that the jury misapplied the
instruction to find that Fulcher’s statement to Jane, i.e., that defendant had tased her, and
that he would tase Jane too, satisfied the use of force enhancement. This was not
evidence that Fulcher threatened Jane; rather, Fulcher merely warned Jane that defendant
would use force on Jane if Jane did not make enough money, or if Jane was not “down
for us and loyal.” More importantly, the instructions were clear that the jury had to find
14 that defendant used force in the commission of the count 3 charge of human trafficking,
before it could find the use of force enhancement allegation true.
In any event, any instructional error was harmless, even under the “beyond a
reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18. The
prosecution argued defendant used force when he threatened Jane with the Taser, and
there was no evidence that anyone other than defendant, including Fulcher, used the
Taser or any other force against Jane. Furthermore, the instructions clearly directed the
jury to determine whether defendant, not Fulcher, used force, fear, fraud, deceit,
coercion, violence, duress, menace, or threat of unlawful injury in committing the human
trafficking charge. Thus, any ambiguity in the use of force instruction could not have
contributed to the jury’s true finding on the use of force enhancement. (Id. at p. 24.)
C. Defendant’s Custody Credits and Sentence Must Be Corrected
The trial court awarded defendant 468 days of custody credits: 234 actual days
and 234 days of conduct credit. Defendant contends, and the People agree, that the trial
court miscalculated defendant’s custody credits and that he is entitled to additional
custody credits.6 The trial court appears to have calculated defendant’s custody credits
from February 24, 2014, to October 16, 2014, rather than from his arrest date of February
24, 2013. The parties disagree, however, as to the number of additional days defendant
6 Although a miscalculation of presentence custody credits ordinarily must be presented to the trial court before it can be the basis of an appeal (§ 1237.1), this court may review the claim if there are additional issues on appeal, and even if, as here, the complaining party failed to raise the contention to the lower court (People v. Acosta (1996) 48 Cal.App.4th 411, 420).
15 should be credited. Defendant argues that he is entitled to 1,200 days of custody credits,
while the People argue defendant is entitled to 1,197 days. Defendant’s calculation is
correct. Additionally, as noted, the trial court sentenced defendant to a prison term of 36
years to life, but the minute order and abstract of judgment erroneously reflect
defendant’s sentence as 37 years to life.
The calculation of custody credits “begins on the day of arrest and continues
through the day of sentencing.” (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48;
§ 2900.5, subd. (a).) Additionally, for crimes “committed on or after October 1, 2011”
(§ 4019, subd. (h)), “[i]t is the intent of the Legislature that if all days are earned under
this section, a term of four days will be deemed to have been served for every two days
spent in actual custody.” (§ 4019, subd. (f); see People v. Whitaker (2015) 238
Cal.App.4th 1354, 1358.) Where the defendant serves an odd number of days, the actual
custody credit is divided by two, rounded down to a whole number, and then multiplied
by two. (People v. Whitaker, supra, at pp. 1358-1360.)
Here, defendant was arrested on February 24, 2013, and remained in custody
through his sentencing date of October 16, 2014. Thus, defendant was in actual custody
for, and should have been given actual credit for, a total of 600 days, not the 599 days
that the People contend defendant is entitled to. Furthermore, pursuant to subdivision (f)
of section 4019, defendant must be awarded 600 days of conduct credit, not 598 days, as
the People claim.
16 Lastly, the trial court sentenced defendant to a prison term of 36 years to life, but
both the minute order and abstract of judgment erroneously list defendant’s sentence as
37 years to life based on the imposition of a second consecutive one-year sentence for his
second prison prior. “Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral pronouncement
controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
Thus, the judgment must be corrected, and the abstract of judgment must be
amended, to reflect 600 days of actual credit (§ 2900.5, subd. (a)) and 600 days of
conduct credit (§ 4019, subd. (f)), and to accurately reflect the trial court’s oral
pronouncement that defendant was sentenced to a total prison term of 36 years to life.
IV. DISPOSITION
The case is remanded to the trial court with directions to issue a supplemental
sentencing minute order and amend defendant’s abstract of judgment, both reflecting that
(1) defendant was entitled to, and this court awarded him, 1,200 days of custody
credits—600 for actual time served and 600 for conduct credit, and (2) defendant was
sentenced to 36 years to life—30 years to life on count 3, a consecutive five-year term for
his prior serious felony conviction, and a consecutive one-year term for one of his two
prison priors. The trial court is further directed to forward a certified copy of the
amended abstract to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
17 RAMIREZ P. J.
We concur:
McKINSTER J.
MILLER J.