People v. Parish CA4/1

Filed 3/25/14 P. v. Parish CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063869

Plaintiff and Respondent,

v. (Super. Ct. No. SCD240397)

STEPHEN MCAVOY PARISH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed.

Cannon & Harris and Gregory L. Cannon, under appointment by the Court of

Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Parag

Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted Stephen McAvoy Parish of five counts of robbery (Pen. Code,1

§ 211). Prior to trial, Parish entered guilty pleas to possession of a firearm by a felon

(§ 29800, subd. (a)), possession of ammunition (§ 30305, subd. (a)(1)), and carrying a

concealed firearm in a vehicle (§ 25400, subds. (a)(1) & (c)(1)). Parish also admitted a

strike prior (§ 667, subds. (b)-(i)), a serious felony prior (§ 667, subd. (a)(1)) and two

prison priors (§ 667.5, subd. (b)). Parish was sentenced to a determinate term of 22 years

4 months in prison.

Parish appeals challenging his robbery convictions. He contends the trial court

erred in denying his motion for self-representation made at the close of evidence in the

trial. Parish also contends there is insufficient evidence to support three of the robbery

counts.

We will find the trial court acted well within its discretion in denying Parish's very

late motion for self-representation. Viewing the evidence at trial under the proper

standard of review, we will find there is sufficient substantial evidence to support the

challenged robbery convictions and affirm the judgment.

STATEMENT OF FACTS

A. Count 1: Robbery of AM/PM Store on Murphy Canyon Road

At about 10:30 p.m. on March 10, 2012, Parish entered an AM/PM store. He

asked the clerk for a carton of "Marlboro 100s." The clerk turned around to get the

cigarettes and when he looked back, Parish pointed a gun at him. Parish said "give me all

1 All further statutory references are to the Penal Code unless otherwise specified.
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the cash." The clerk gave the cash to Parish who took the cash and cigarettes and left.

Parish was wearing a black puffy jacket with a hood over his head.

The clerk later identified a black puffy jacket, which had been later found in

Parish's garage, as the one worn during the robbery. He also identified the plastic gun,

which was recovered during a later robbery, as similar to the one used by Parish. The

jury also viewed the surveillance video with audio taken during the robbery. The clerk

identified Parish as the person who committed the robbery.

B. Count 2: Robbery at ARCO

At around 7:00 p.m. on March 11, 2012, Parish entered an ARCO store on

Mission Gorge Road in San Diego. Parish was wearing a hooded sweatshirt, red hat and

sunglasses. He ask the clerk for a carton of "Marlboro 100s Long" cigarettes. When the

clerk said she did not have cartons of cigarettes Parish tapped a gun on the counter and

told her to "give me all your money." Parish left with the cash from the clerk and also

took a pack of cigarettes. The clerk did not identify Parish at trial, however the jury

viewed the video and audio surveillance. The surveillance photos showed the robber was

wearing a sweatshirt with the logo "Viejas" on it.

C. Count 3: Robbery of AM/PM store on Clairemont Mesa Boulevard

This robbery took place on March 11, 2012 at about 10:05 p.m. Parish entered the

store wearing a dark hooded sweatshirt, red hat and sunglasses. He asked for a carton of

"Marlboro Reds" cigarettes. When the clerk said he did not sell cartons, Parish asked for

two packs of Marlboro Medium 100s. When the clerk obtained the cigarettes Parish

slammed a gun on the counter and demanded the cash from the register.

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 The robbery was briefly interrupted when a customer entered to pay for gas.

Parish waited and when the customer left Parish said: "Give me the cash. Give me the

cash. Give me the cash." The clerk gave Parish the cash, who then left with it plus the

two packs of cigarettes.

The clerk did not identify Parish at trial but did identify the Viejas sweatshirt,

which had been taken from Parish at a later robbery, as being the shirt he saw during the

robbery of his store. Once again the jury saw the surveillance video with audio taken

during the robbery.

D. Count 4: Robbery of a United Oil Gas Station

This robbery occurred on March 12, 2012 at about 10:20 p.m. Parish approached

the cashier wearing a dark hooded jacket, hat and sunglasses. He asked the clerk for a

carton of Marlboro cigarettes. As the clerk scanned the carton, Parish said: "Give me all

the money." He had a black gun in his hand. Parish left with the money and the

cigarettes.

The clerk did not identify Parish at trial, however the jury viewed the surveillance

video of the robbery. The robber was wearing a hooded sweatshirt with the logo "Viejas"

on it.

E. Count 5: Robbery of a Shell Gas Station

The final robbery in this case occurred on March 13, 2012 at a Shell gas station on

Clairemont Mesa Boulevard. The clerk noticed Parish at around 9:30 p.m. Because

Parish was dressed in a hooded sweatshirt and had on dark glasses, the clerk was

suspicious. Parish told the clerk he was there to buy iced tea. When the clerk returned to

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the cash register, Parish slammed a gun on the counter and told the clerk it was a robbery

and "now, give me your money."

As Parish reached for the money, the clerk grabbed the gun, and immediately

recognized it was a fake gun. Parish ran out the door toward a burgundy colored

Chrysler with the clerk in pursuit. The clerk grabbed Parish and a struggle ensued.

During the struggle a woman got out of the car, but the clerk told her to get back into the

car. The clerk pinned Parish down, but as the clerk tried to call 911, Parish was able to

escape into the Chrysler and drive away. In the struggle, the clerk ripped the sweatshirt

and sunglasses from Parish. The sweatshirt had the "Viejas" logo on it. The clerk

identified Parish and the jury viewed the surveillance video.

Police investigation following the robberies focused on Parish. Police had

reviewed all of the surveillance videos and noted the similarities of the five robberies.

On April 25, 2012, police contacted Parish and arrested him. They noticed he walked

with a limp similar to the limp displayed by the robber in the surveillance videos. Police

thereafter seized a black puffy jacket from Parish's garage along with a pair of white

sneakers similar to those on the surveillance videos. They also determined that Parish

smoked cigarettes.

DNA samples were taken from the Viejas sweatshirt, plastic gun and sunglasses.

They contained a mixture of DNA samples. Parish could not be excluded from the

jacket. Parish was the major contributor to the samples from the sweatshirt and

sunglasses.

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 DISCUSSION

I

DENIAL OF SELF-REPRESENTATION

A. Background

Throughout the trial court proceedings, Parish had frequent disagreements with

appointed counsel. Parish brought three different motions to replace appointed counsel

pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Each was thoroughly

discussed during in camera proceedings and each was denied. Parish does not challenge

the trial court's decisions denying those motions.

Following the denial of his first motion, Parish requested to represent himself.

After lengthy discussion with the trial court, Parish was permitted to discuss self-

representation with his family. Following those discussions, Parish withdrew his request.

After the prosecution rested and the court denied Parish's motion for acquittal

(§ 1118.1), defense counsel stated he did not intend to call witnesses. At that point

another Marsden motion was made. Again the motion was denied. Parish again made a

motion to represent himself. A lengthy discussion followed in which the court explored

the reasons for the late request. It appeared that Parish was in disagreement with

counsel's strategy, particularly with regard to calling alibi witnesses. Counsel represented

he had investigated the witnesses and determined not to call them. Parish disagreed. He

said he wanted to represent himself and call an unspecified number of unnamed

witnesses. The trial court denied his motion as untimely and found it was made for

purposes of delay.

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 Parish contends the trial court erred in denying his motion for self-representation.

He contends the motion was timely and even if it was not, the court abused its discretion

in denying the request.

B. Legal Principles

As part of the Sixth Amendment right to counsel, a defendant has a right to self-

representation if the request is timely, unequivocal and made after a knowing and

intelligent waiver of the right to counsel. (Faretta v. California (1975) 422 U.S. 806,

819; People v. Koontz (2002) 27 Cal.4th 1041, 1069.) The right is absolute if made far

enough in advance of trial, with a valid waiver. (People v. Lynch (2010) 50 Cal.4th 693,

721.) Once the defendant goes to trial represented by counsel, subsequent requests for

self-representation are arguably untimely. Where the request is made during trial, the

right to self-representation is no longer absolute. Rather, the decision to grant or deny the

request is within the sound discretion of the trial court. (Id. at pp. 721-722; People v.

Windham (1977) 19 Cal.3d 121, 128.)

We review the trial court's ruling on a late application for self-representation under

the abuse of discretion doctrine. We review the trial court's inquiries and its stated

reasons for its ruling. Even where the court does not fully state its reasons we look to the

record to determine if it supports the trial court's decision. (People v. Dent (2003) 30

Cal.4th 213, 218.)

C. Analysis

The trial court was clearly aware of the struggles between Parish and appointed

counsel. The court denied two Marsden motions before the request at issue here. The

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court had also discussed self-representation with Parish at the start of the trial

proceedings. It is also beyond dispute that the second request for self-representation was

untimely. The trial process was essentially complete with the exception of closing

arguments and instructing the jury. The request grew out of another dispute with trial

counsel over trial strategy. Thus the trial court could well conclude the request was made

out of anger and frustration and not truly a request for self-representation. (People v.

Lewis (2006) 39 Cal.4th 970, 1002.)

Although the trial court did not address specifically what made this last minute

request untimely, it is not hard to deduce why the court made that finding. Taken at face

value, Parish was proposing to start over with the defense. It would seem that no

witnesses had been subpoenaed for trial given defense counsel's statements. The identity

and number of witnesses is unclear and plainly there would have to be a disruption of the

trial for an unknown period of time. It is hard to conceive of the trial court's decision

under these circumstances being an abuse of discretion. As we have noted, this jury trial

was essentially complete save for argument and instruction. Disrupting the trial at this

point would have been entirely inappropriate. Further, this trial judge had spent a great

deal of time dealing with Parish's concerns and given the weight of the evidence against

him, the court could reasonable conclude the purpose of the motion was delay and

possible disruption of the trial. We find no error in denying Parish's Faretta motion.

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 II

SUFFICIENCY OF THE EVIDENCE FOR COUNTS 2 THROUGH 4

Parish contends the evidence is not sufficient to support the convictions for counts

2 through 4. His contention is rather straightforward. He contends since the clerks in

counts 2 through 4 could not identify him as the robber, the remaining evidence is not

sufficient to prove he committed those offenses. We disagree and find reasonable jurors

could have been convinced, beyond a reasonable doubt, that the person who committed

the robberies in counts 1 and 5 was the same person who committed the remaining

robberies. Indeed, we agree with the trial court's assessment that the evidence of Parish's

guilt is quite strong.

A. Legal Principles

When we review a challenge to the sufficiency of the evidence in a criminal case,

we apply the very familiar substantial evidence standard of review. Under that standard

we review the entire record in the light most favorable to the trial court's decision. We

draw all reasonable inferences in favor of that decision and we do not weigh the evidence

or make credibility decisions. Our task is to determine whether a reasonable fact finder

could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26

Cal.3d 557, 577-578; Jackson v. Virginia (1979) 443 U.S. 307, 319.) "Where, as here,

the jury's findings rest to some degree upon circumstantial evidence, we must decide

whether the circumstances reasonably justify those findings, 'but our opinion that the

circumstances might reasonably be reconciled with a contrary finding' does not render the

evidence insubstantial." (People v. Earp (1999) 20 Cal.4th 826, 887-888.)

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 B. Analysis

We note at the outset there is no contention that the robberies did not occur in this

case. Rather, the sole challenge to counts 2 through 4 is to the identity of the perpetrator.

Our analysis therefore starts with the two principal anchors of identity in this case. There

is no dispute that Parish committed the robberies in counts 1 and 5; nor could there be

any meaningful challenge on this record. What the challenge in this case principally

ignores is the weight of circumstantial evidence regarding the remaining counts.

In the first robbery Parish was positively identified and the black puffy jacket

similar to that which was worn during the robbery was found later in his garage. The

jurors observed the surveillance videos and photos. Like all of the other robberies, the

first was at night, in a convenience store connected with a gas station. The essential

methodology was the same; requesting Marlboro cigarettes followed by producing what

appeared to be the same gun and then demanding cash. Each robbery was by an older

white male, with a beard and a hood over his head. The videos also showed the person

walking with a limp, similar to that of Parish, later observed by police.

In the final robbery attempt, Parish was positively identified and his hooded

sweatshirt and sunglasses were torn from him in his struggle with the clerk. Parish's

DNA samples connected him to the sweatshirt and sunglasses.

The robberies in counts 2 through 4 were all conducted in the same manner, same

general area and similar time frame. Each of the challenged robberies was done in a

fashion strikingly similar to those in counts 1 and 5. Importantly, in the robberies in

counts 2 through 5 the robber was wearing the same dark colored sweatshirt with the

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Viejas logo clearly visible on it. The robber in each count wore a hat and sunglasses, was

an older white male with a beard, and in each instance the robbery was recorded on

surveillance videos.

We are satisfied that the jurors, having viewed the surveillance material and the

almost identical actions taken by the robber in all counts could reasonably conclude that

Parish, positively connected to counts 1 and 5, was also the perpetrator of counts 2

through 4. The evidence at trial fully supports the convictions on all five counts of

robbery.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McINTYRE, J.

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