Filed 2/14/22 P. v. Alvarez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B310309
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA478545
v.
JESUS ALVAREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert Vanderet, Judge. Affirmed.
Robert L. Hernandez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Rene Judkiewicz, Deputy Attorney General,
for Plaintiff and Respondent.
______________________
A jury convicted Jesus Alvarez of assault with a deadly
weapon and throwing an object at a vehicle with the intent to
cause great bodily injury. He appeals the judgment arguing the
trial court committed reversible error when it denied his second
motion pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden) without a hearing. He also asserts the court erred by
improperly instructing the jury on the count for assault with a
deadly weapon. The People concede the court erred but argue the
errors were harmless. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Officers Arrest Alvarez for Throwing a Concrete Slab
Through the Driver’s Side Window of an Occupied Car
Kenneth Hayashi was working as a ride-share driver on
June 8, 2019. At about 1:30 a.m. he picked up passenger Kimani
McGhee near the corner of Melrose Avenue and Kingsley Drive in
Los Angeles. McGhee sat on the passenger side in the backseat of
Hayashi’s car. As he was about to drive away, Hayashi noticed a
man with a gray shirt standing near his driver-side window. The
man was holding a concrete block1 in both hands over his head.
Hayashi ducked as the man threw the block through the driver-
side window. The block shattered the window, missed Hayashi
and landed in the middle of the backseat next to McGhee.
Hayashi sped away. He drove several blocks, pulled over and
called 911. Hayashi explained what happened to the dispatcher
and provided consistent details to responding Los Angeles Police
Department Officers Joseph Orozco and Alex Yim. The officers
1 Throughout the trial various witnesses referred to the block
as a “rock” or a “brick” and also described the material as cement
or concrete.
2
also talked with McGhee, who reported that the man who threw
the rock was wearing a gray shirt and gray shorts or pants.
At about the same time the 911 dispatch operator received
another call from someone at a bar on Melrose Avenue near
Kingsley Drive. The caller told dispatch that the police needed to
come quickly because a security guard at the bar was holding a
man who had used a brick to hit someone and break car windows.
The caller said the detained man was wearing a gray shirt. Officer
Bustos responded to the call and detained the man who was being
held by the security guard. That man was Alvarez.
At approximately 2:00 a.m. Officer Orozco drove McGhee to
the location on Melrose where Officer Bustos had detained Alvarez
and conducted a “field show-up.”2 McGhee identified Alvarez as
the man who threw the concrete block into Hayashi’s car. Officer
Bustos arrested Alvarez.
Officers did not ask Hayashi to participate in the “field show
up.” Instead, several days later Hayashi went to the police station
to view a six-pack photographic line up. Hayashi selected the
photo of Alvarez and identified him as the man who threw the
cement block through the window of his car.
B. Alvarez is Charged, and the Court Holds a Marsden Hearing
Alvarez was charged with two felony offenses for throwing
the cement block through Hayashi’s window: assault with a deadly
2 Officer Orozco explained to McGhee that, “we’re going to do
something called a field show up . . . . There’s someone that’s been
detained right now. They’re in handcuffs. Just because they’re
detained, doesn’t mean they’re guilty of anything. It may or may
not be the person that was involved in this incident. We just need
your help to figure out if this is the person or not.”
3
weapon (count 1; Pen. Code, § 245, subd. (a)(1))3 and throwing an
object at a vehicle or an occupant of a vehicle with intent to do
great bodily injury (count 2; Veh. Code, § 23110, subd. (b)).
Deputy Public Defender Karyne Munoz represented Alvarez and
appeared at the arraignment on September 10, 2019.
During the November 20, 2019 pretrial hearing the trial
court noted discovery was complete, the last offer made by the
People was nine years, and “this is . . . a third strike case.” Munoz
then informed the court that twice that week Alvarez told her he
wanted to fire her and represent himself. The court had a brief
exchange with Alvarez to clarify whether Alvarez wanted to
represent himself or was requesting new counsel. The court
excluded the Deputy District Attorney from the courtroom and
held a Marsden hearing during which Alvarez explained he
wanted to be sure Munoz used numerous reports and exhibits he
thought were important in presenting his defense. After listening
to Alvarez’s concerns and Munoz’s responses regarding her
strategy for settlement discussions and trial, the court said to
Alvarez, “Let this play out. [Munoz] has not ignored the stuff
you’re talking about. She’s not ignoring it. She’s on it. Let’s see
what the experts say, and let’s see if that makes a difference in the
offer or not . . . [and if] they don’t change their offer, we’ll be ready
to set a trial date. Sound good?” Alvarez agreed, and the court
concluded the Marsden portion of the hearing. During the
remainder of the pretrial hearing the court stated if the case did
not settle by the next hearing, December 20, 2019, trial would
begin within 20 days of that date.
3 Statutory references are to the Penal Code unless otherwise
stated.
4
C. Alvarez’s Trial is Delayed Due to the Covid-19 Pandemic
On December 20, 2019 the trial court trailed the case to
January 3, 2020 for a jury trial. The court granted a defense
pretrial motion on January 3, 2020 and continued the matter to
January 31, 2020. On January 31, 2020 the People withdrew their
settlement offer, all counsel announced they were ready for trial,
and the court set trial for February 6, 2020. On February 6, 2020,
over Munoz’s objection, the court granted the People’s motion to
continue and reset the trial to March 25, 2020. At the March 25,
2020 hearing Munoz informed the court that Alvarez would not
waive time for trial. Noting the spread of Covid-19 and the state
of emergency declared by Governor Newsom, the court continued
the trial to April 24, 2020. The court issued similar continuances
each month through July 2020. On August 10, 2020 the court
continued the matter for a week because Alvarez was quarantined
due to the pandemic.
D. The Court Denies Alvarez’s Second Marsden Motion Without
a Hearing and Completes Pretrial Proceedings
At the August 17, 2020 pretrial hearing all counsel again
confirmed they were ready for trial. The trial court referenced a
new Covid-19 emergency order and continued the trial until
September 23, 2020. Munoz objected to the continuance and noted
that Alvarez, who was in custody, asked her to file a habeas
petition because his trial had been repeatedly delayed. Munoz had
the following colloquy with the court and Deputy District Attorney
Brittany Phillips:
“Ms. Munoz: Mr. Alvarez feels that because I have allowed
his case to be put over for six months, when it was ready for trial,
and I remain ready, that he would like the court to hear a
5
Marsden motion where he can potentially have a lawyer that is
ready and proceed with his trial.
“The Court: He has a lawyer - -
“Ms. Munoz: He’s not comfortable with my representation.
“The Court: He has a lawyer that’s ready for trial already.
And I’ve already heard a Marsden motion, and I’m not inclined to
hear another one. The fact is, Mr. Alvarez, your attorney has been
announcing ready every time.
“And because of the pandemic, there are no jury
trials―none, zero, zippo, and―that are happening until September
at the earliest. So what I suggest we do is come back some day the
week of the 14th, Ms. Munoz.
“Ms. Phillips: And I would like to take the opportunity to let
the defendant and counsel know, again, I’ve spoken with the
defense counsel. I’m well aware that the defendant has waited for
his trial for quite a while now.
“And because of that, I did approach counsel and ask for a
counter offer on this case. The People made an offer of 8 years,
which was rejected by the defendant.
“However, I did approach the defense counsel and say, given
the time, is there something that the defendant is interested in? I
can’t make any promises, and I’m open.
“I’ll discuss this with my boss . . . .
“The Court: Okay. Here’s what I suggest since this is
coming up now. Let’s come back sooner rather than later so that―
“Ms. Munoz: Yes.
“The Court: --So you may have an opportunity to chat with
Mr. Alvarez to see if there is anything that he would like to
counter with. It appears that, you know―off the record.
6
“The Court: [To Alvarez] You need to talk to your attorney,
and then come back―then your attorney will come back to the DA
with a counter if you have one. Okay?
“The Defendant: All right. Thank you.…
“The Court: . . . Right now the offer stands at eight, but
they’re open to a counter offer. … So we’ll come back on the 10th,
see where we’re at. If it doesn’t resolve, we’ll set a trial date.
“By then, we should know what’s going on. It’s simple, Mr.
Alvarez. The virus numbers have got to go down to a point where
we’re able to bring in jurors. Right now, they’re not there. So
hopefully the trend is downward.
“The Defendant: Right.
“The Court: And we’re going to be able to get started . . . . If
we can’t resolve this, we’ll set it for trial and go from there.
“The Defendant: September 10th. Right?
“The Court: September 10th. . . .”
The August 17, 2020 minute order states, “Defendant orally
requests a Marsden hearing. The court denies the request for
hearing due to the defendant not showing any new evidence from
prior Marsden hearing. The court informs the defendant that jury
trials are delayed due to the Covid pandemic.”
On September 10, 2020 the parties stipulated to hold the
jury trial readiness hearing on September 29, 2020. Because
Alvarez was in quarantine again on September 29, 2020, the trial
court continued the readiness hearing to October 9, 2020.
Deputy Public Defender Adam Birka-White represented
Alvarez at the October 9, 2020 and throughout the trial. Alvarez
did not personally appear on October 9th as he was still in
quarantine. The trial court set trial for October 19, 2020.
7
On October 19, 2020 the trial court informed Alvarez, Birka-
White and Deputy District Attorney Brian Rosenberg that its
indicated sentence for Alvarez was four years with credit for three.
Alvarez discussed the offer privately with his counsel. The court
asked for Alvarez’s response and Birka-White reported, “We
discussed it in detail. We . . . discussed the mathematics of the
court’s indicated that Mr. Alvarez would likely be released in
approximately March of 2021 by my math, and he is not interested
in the court’s offer . . . . We’ll be proceeding to trial.” The court
informed Alvarez that while it was his choice to reject the offer, he
would be “facing 18 years” if he proceeded to trial. The court said
the offer “will remain open if you want to think about that.
Obviously it won’t remain open once we begin jury selection.”
Birka-White responded, “I understand. Thank you.” Alvarez
made no complaint that day, nor any day after, that he was
unsatisfied with Birka-White as his counsel. Jury selection began
on October 20, 2020.
E. The Jury Convicts Alvarez on Count 1, Felony Assault with a
Deadly Weapon, and the Misdemeanor of Throwing an Object
at a Vehicle, the Lesser Offense Charged in Count 2
1. Presentation of evidence
During the trial Hayashi identified Alvarez in the
courtroom. Hayashi testified that on June 7, 2019 he saw Alvarez
coming toward his car holding a broken piece of concrete over his
head. Alvarez was wearing a gray T-shirt and looked very angry.
When he was about two to three feet away Alvarez threw the block
at Hayashi and shattered the driver’s side window “like a bomb”
causing glass to rain into the car over Hayashi’s “body and
clothing.” Hayashi said, “I don’t know if it touched [my] ear
because I ducked instantaneously and stepped on the gas when he
8
threw the rock at me.” If he had not ducked, Hayashi stated, the
block would have “absolutely hit my head.”
During his testimony, McGhee also identified Alvarez in the
courtroom. McGhee stated that as soon as he sat in the backseat
of the car he saw Alvarez about 10 feet away from Hayashi’s
window. Alvarez was wearing a gray shirt and looked angry as he
approached the vehicle while holding a rock over his head. When
Alvarez was close, he “catapulted” the rock through the driver’s-
side window shattering the glass. Hayashi leaned forward over
the steering wheel as the rock came behind his head and landed in
the back seat next to McGhee. McGhee was not injured, although
he was covered in broken glass.
2. Closing argument
In his closing argument Rosenberg elaborated on the
definition of a deadly weapon, stating it is “any object, instrument
or weapon that is used in such a way that is capable of causing
and likely to cause death or great bodily injury . . . .” Rosenberg
told the jury they needed to determine whether Alvarez “use[d]
this rock in such a way that it was capable of causing substantial
injury.” He continued, “you may be thinking, well, look, it’s a
brick; it’s not a gun, it’s not a knife, it’s not a machete, it’s nothing
like that. But for the purposes of the law, a deadly weapon can be
anything as long as it’s used in such a way where it can really hurt
somebody.” Rosenberg gave examples of how an object that has an
innocent purpose can be used as a deadly weapon, including a
stapler as a “bludgeoning instrument” or, as used by the Joker in
the movie The Dark Knight, a pencil to impale someone’s eye.
Rosenberg argued Alvarez took the cement slab and threw it with
force through Hayashi’s window, shattering the glass. Had the
9
brick hit Hayashi, it could have caused a “broken nose, broken eye
socket, worse―he would have been in a very bad place.”
3. The verdict and sentence
The jury found Alvarez guilty of felony assault with a deadly
weapon in violation of Penal Code section 245, subdivision (a)(1),
count 1. For count 2, the jury found Alvarez not guilty of the
felony of throwing an object at a vehicle or an occupant of the
vehicle with the intent to do great bodily injury but found him
guilty of the misdemeanor lesser included offense in violation of
Vehicle Code section 23110(A).
The court sentenced Alvarez to four years in state prison on
count 1. On count 2 the court sentenced Alvarez to one year in jail
but stayed the sentence pursuant to section 654. The court
applied Alvarez’s 1,198 days of in custody credit. Alvarez timely
appealed.
DISCUSSION
A. The Court’s Failure To Conduct a Second Marsden Hearing
was Harmless Error
1. The court erred by not conducting a second Marsden
hearing
Criminal defendants are entitled to court-appointed counsel
if they are unable to afford private counsel. (Gideon v. Wainwright
(1963) 372 U.S. 335.) A defendant’s constitutional right to counsel
includes the right to have court-appointed counsel “discharged or
other counsel substituted, if it is shown . . . that failure to do so
would substantially impair or deny the right so guaranteed . . . .”
(People v. Mitchell (1960) 185 Cal.App.2d 507, 512, quoting 157
A.L.R. 1225, 1226.)
10
This court reviews the trial court’s decision to deny a
defendant’s motion to relieve counsel for an abuse of discretion.
(People v. Jones (2003) 29 Cal.4th 1229, 1245.) “[T]he trial court
cannot thoughtfully exercise its discretion . . . without listening to
[a defendant’s] reasons for requesting a change of attorneys.”
(Marsden, supra, 2 Cal.3d at p. 123.) Unless the trial court
understands the grounds that prompted the request, the court has
insufficient information to “intelligently deal with a defendant’s
request for substitution of attorneys . . . . The defendant may have
knowledge of conduct and events relevant to the diligence and
competence of his attorney which are not apparent to the trial
judge from observations within the four corners of the courtroom.”
(Ibid.) A court that denies a defendant’s motion for substitution of
counsel based “solely on . . . courtroom observations, despite a
defendant’s offer to relate specific instances of misconduct, abuses
the exercise of his discretion to determine the competency of the
attorney. A judicial decision made without giving a party an
opportunity to present argument or evidence in support of his
contention ‘is lacking in all the attributes of a judicial
determination.’” (Id. at p. 124, quoting Spector v. Superior Court
(1961) 55 Cal.2d 839, 843.) It is reversible error for a trial court to
deny a defendant’s Marsden motion without conducting a hearing
unless the appellate court concludes “beyond a reasonable doubt
that [the denial] did not contribute to the defendant’s conviction.”
(Marsden, supra, 2 Cal.3d at p. 126, quoting Chapman v.
California (1967) 386 U.S. 18.)
During the August 17, 2020 pretrial hearing Munoz
informed the trial court that Alvarez wanted a substitution of
counsel. Although Munoz stated Alvarez was dissatisfied because
trial had been repeatedly delayed, Munoz also relayed that
Alvarez was “not comfortable with [Munoz’s] representation.” The
11
court interpreted Alvarez’s complaint to be solely based on the
trial continuances. Because the delays were caused almost
entirely by the pandemic and were therefore unrelated to Munoz’s
performance, the court concluded no further discussion was
necessary. The court did not hold a Marsden hearing and did not
learn whether Alvarez had concerns that went beyond his
frustration of being in custody for more than 14 months without a
trial. The court abused its discretion when it failed to hold a
Marsden hearing, and respondent concedes the court erred.
2. The court’s error was harmless
If the trial court had held a Marsden hearing on
August 17, 2020 and concluded that substitution of counsel was
warranted, the court would have relieved Munoz as counsel and
would have appointed a new lawyer for Alvarez. 4 While the court
did not hold a Marsden hearing and did not substitute counsel, by
the October 9, 2020 pretrial hearing Alvarez nevertheless was
represented by new counsel, Birka-White.
Nothing in the record illuminates exactly when or why
Birka-White began representing Alvarez. Munoz appeared on
behalf of Alvarez at the September 29, 2020 hearing and agreed to
continue the matter to October 9, 2020 because Alvarez was in
quarantine due to Covid-19. Sometime between those two
hearings, Birka-White took over as Alvarez’s attorney. That
4 We do not mean to suggest there is evidence in the record to
support the contention that Munoz engaged in conduct that would
have justified the court relieving her, or that if the court had held
a Marsden hearing that Alvarez would have presented any such
evidence.
12
means that between 43 and 53 days after Alvarez made his second
request for a Marsden hearing, he had a new attorney.
The People argue the trial court’s error in failing to hold a
second Marsden hearing was “either moot or harmless” because
Alvarez “received what he wanted: a new appointed attorney other
than Deputy Public Defender Munoz . . . .” In his reply brief
Alvarez acknowledges he had new counsel no later than October 9,
2020 but asserts the court’s failure to hold a Marsden hearing on
August 17, 2020 was prejudicial error because settlement
discussions were occurring in the intervening time, and “it is now
impossible to determine beyond a reasonable doubt those reasons
had no effect on the plea negotiations.”
The record belies Alvarez’s suggestion that he may have
received more favorable settlement terms had he been appointed
new counsel on August 17, 2020. At the conclusion of the
August 17, 2020 hearing the trial court summarized the state of
settlement discussions: “Right now the offer stands at eight [years
incarceration], but they’re open to a counter offer. . . . So we’ll
come back on the 10th, see where we’re at.” The record does not
reveal how long Alvarez was in quarantine after that hearing.
There is also no information regarding whether Munoz
communicated with Alvarez during that time or whether she made
a counteroffer to the People on his behalf. The record is clear as to
the October 29, 2020 discussion with the trial judge, when Alvarez
was represented by Birka-White. Irrespective of whatever prior
terms the People may have offered or any counteroffer the People
may have rejected, the court explained it was prepared to sentence
Alvarez to four years with credit for time served, which put
Alvarez’s expected release roughly five months later in March of
2021. Alvarez rejected the court’s offer.
13
Because: Birka-White replaced Munoz shortly after Alvarez
requested a change in counsel; Alvarez never objected to Birka-
White’s representation; and the trial court did not provide its
indicated sentence with Alvarez until October 29, 2020, when
Birka-White represented Alvarez, the trial court’s error in not
holding a Marsden hearing on August 17, 2020 was harmless. We
find beyond a reasonable doubt that the court’s failure to hold a
second Marsden hearing did not contribute to Alvarez’s conviction.
B. The Court’s Inclusion of Extraneous Language in the
Instruction Regarding Inherently Dangerous Weapons was
Harmless Error
Alvarez asserts the trial court improperly instructed the jury
regarding count 1, assault with a deadly weapon (§ 245 subd.
(a)(1)). The court instructed the jury using, inter alia, CALCRIM
No. 875 stating: “A deadly weapon is any object, instrument or
weapon that is inherently deadly or dangerous or one that is used
in such a way that it is capable of causing and likely to cause
death or great bodily injury.” Alvarez argues the court should
have eliminated the words “that is inherently deadly or
dangerous” from the jury instruction because the weapon in this
case was a concrete block, which is not inherently deadly or
dangerous. Alvarez contends he was prejudiced by the court’s
error because “it cannot be assumed that the jury here relied on
the correct part of the instruction in making its finding regarding
the deadly nature of the concrete block.” The People concede the
court erred in including the extraneous language in the jury
instruction but assert the error was harmless.
This court reviews de novo an appellant’s claim that a trial
court committed instructional error. (People v. Manriquez (2005)
37 Cal.4th 547, 581.) If a defendant uses an object that is not
14
inherently dangerous in the commission of an assault, it is legal
error for the court to instruct the jury regarding a “weapon that is
inherently deadly or dangerous” because the instruction is not
supported by the facts or evidence of the case. (People v. Aledamat
(2019) 8 Cal.5th 1, 7-8 (Aledamat)). Whether the error is harmless
is controlled by the “harmless beyond a reasonable doubt”
standard in Chapman. (Id. at p. 9, citing Chapman, supra, 2
Cal.3d at p. 24.) Alvarez relies solely on Aledamat to support his
contention that his conviction for assault with a deadly weapon
should be reversed. Alvarez is incorrect.
In Aledamat defendant extended the blade of a box cutter
and thrust it toward the victim as he threatened, “I’ll kill you.”
(Id. at p. 4.) Defendant was charged with assault with a deadly
weapon pursuant to section 245, subdivision (a)(1). The trial court
instructed the jury using CALCRIM No. 875 and defined a deadly
weapon as: “any object, instrument, or weapon that is inherently
deadly or one that is used in such a way that it is capable of
causing and likely to cause death or . . . great bodily injury.”
(Ibid.; see CALCRIM No. 875.) Regarding the weapon
enhancement, the court instructed that “‘a deadly or dangerous
weapon is any object, instrument, or weapon that is inherently
dangerous, . . . or one that is used in such a way that it is capable
of causing or likely to cause death or great bodily injury.’” (Ibid.)
“In his closing argument, the prosecutor argued that the box cutter
was an ‘inherently deadly weapon,’ noting that ‘you wouldn't want
your children playing with’ it.” (Id. at p. 5.) The California
Supreme Court found that a box cutter was not inherently
dangerous and it was legal error for the trial court to include the
extraneous language in CALCRIM No. 875 regarding an
inherently dangerous weapon. However, the Supreme Court also
found the error was harmless beyond a reasonable doubt under
15
Chapman because no reasonable jury could have failed to find
“defendant used the box cutter in a way that is capable of causing
or likely to cause death or great bodily injury.” (Id. at p. 15) The
Supreme Court found harmless error even though the prosecutor
specifically, and incorrectly, argued the box cutter was inherently
dangerous. (Ibid.)
The instructional error in this case is like that in Aledamat.
However, one difference is that irrespective of the extraneous
language in the jury instruction, the prosecutor in Alvarez’s trial
never argued to the jury that the cement block was inherently
dangerous. Rosenberg took the opposite approach and provided a
detailed explanation about how an object, that normally has an
innocent purpose, such as a stapler, a pencil, or in this instance a
cement block, can be a deadly weapon “as long as it’s used in such
a way where it can really hurt somebody.” Rosenberg recounted
how: Alvarez threw the cement block through the window of
Hayashi’s car; the block nearly missed Hayashi’s head, which
could have caused Hayashi severe injuries; glass showered the
interior of the car; and the block landed next to McGhee. As was
the case in Aledamat, because there was no reasonable way the
jury in this matter could have failed to find Alvarez used the
cement block in a way that was capable of causing, or likely to
cause, death or great bodily injury, it is clear beyond a reasonable
doubt that the trial court’s error was harmless.
16
DISPOSITION
The judgment is affirmed.
WISE, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17