Filed 5/22/15 P. v. Swanson CA2/2
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


 THE PEOPLE,                                                          B255086

          Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. Nos. VA129656 &
          v.                                                           VA130499)

 CASEY SWANSON,

          Defendant and Appellant.



          APPEAL from a judgment of the Superior Court of Los Angeles County.
 John A. Torribio, Judge. Affirmed in part, and reversed in part.
          Janet Uson, under appointment by the Court of Appeal, for Defendant and
 Appellant.
          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
 General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
 II, Marc A. Kohm and Alene M. Games, Deputy Attorneys General, for Plaintiff and
 Respondent.




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        Casey Swanson (defendant) challenges her convictions of 11 crimes and the
resulting prison sentence of 23 years and 8 months. She argues that (1) the trial court
wrongly denied her request for new appointed counsel, (2) four of the convictions rest on
insufficient evidence, (3) two of the convictions are duplicative of one another, and
(4) the trial court erred in not staying three of the sentences under Penal Code section
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654. We conclude that some of defendant’s arguments have merit, and vacate one of the
convictions, reduce another, stay two sentences, and recalculate her sentence to be 20
years and 4 months.
                  FACTUAL AND PROCEDURAL BACKGROUND
        Defendant is the self-proclaimed “mastermind” of a series of crimes in which she
lured men to a location with the promise of sexual acts and, with the aid of armed men,
robbed them of their belongings when they showed up.
        In February 2013, Trung Nguyen (Nguyen) received a text message from a woman
he met briefly at a New Year’s Eve party, and the message directed him to a residence on
Rosecrans Avenue in Compton, California. When he arrived, a woman opened the door
and retreated into the dark interior; when Nguyen followed, two men assaulted him,
struck him in the face with a pistol, and demanded his wallet, car keys and cell phones.
They warned him to remain in the house and left. When Nguyen went outside, his car
was gone. Although Nguyen could not identify defendant at trial and took three tries to
correctly identify her in a six-photo spread, defendant admitted to police that she “did it
one time over there . . . [o]ver on Rosecrans” and a search of the Rosecrans residence
turned up mail in her name.
        In March and April 2013, defendant lured five other men to the same apartment in
Los Angeles, California with ads posted to Craigslist promising sex acts, where she and
male accomplices robbed them when they showed up.
        When Abimael Urrutia (Urrutia) showed up, defendant invited him inside, where a


1       All further statutory references are to the Penal Code unless otherwise indicated.
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man demanded money. The man escorted Urrutia to his car; Urrutia then retrieved and
handed over $20. When David Galvez (Galvez) showed up, defendant invited him inside
the dark apartment, where a man holding a gun ordered him to empty his pockets, and
took his cell phone and $200 from his wallet. A second man took Galvez’s car keys and
retrieved a leather jacket and backpack from his car. Jeffrey Honsinger (Honsinger) and
Kevin Peters (Peters) were also accosted and robbed by armed men waiting inside the
apartment.
       When Daniel Gaw (Gaw) showed up, one man confronted him at gunpoint and
another watched as defendant photographed Gaw’s driver’s license and family photos,
and then ordered him to admit—while she video recorded the encounter—that
prostitution was illegal. Defendant then took Gaw’s cell phone, his business cards, and
gift cards, and warned him that she would kill his family if he went to the police. The
next day, defendant called and emailed Gaw at work and threatened to show the
videotape to Gaw’s wife and coworkers if he did not pay her $1,000.
       When law enforcement conducted a search of the Los Angeles apartment, they
recovered Gaw’s wallet, items belonging to Peters, two replica firearms, and defendant’s
cell phone. Defendant’s cell phone contained the contact information from Urrutia’s and
Galvez’s phones, under the labels “paisa victim” and “fat nigga I robbed,” respectively.
       The People charged defendant with 11 crimes. As to Nguyen, defendant was
charged with carjacking (§ 215, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)),
and second degree robbery (§ 211)—and the People further alleged that a principal in the
carjacking and second degree robbery was armed with a firearm (§ 12022, subd. (a)(1)).
As to Gaw, defendant was charged with first degree robbery as a home invasion robbery
committed in concert with others (§§ 211, 213, subd. (a)(1)(A)), second degree robbery
(§ 211), criminal threats (§ 422), and attempted extortion (§ 524). As to Urrutia, Galvez,
Peters and Honsinger, defendant was charged, as to each, with a count of first degree
robbery as a home invasion committed in concert with others (§§ 211, 213, subd.
(a)(1)(A)).

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       The jury convicted defendant on all counts and found all allegations to be true.
       The trial court imposed a sentence of 23 years and 8 months. As the base
sentence, the court imposed a sentence of nine years on the carjacking of Nguyen with an
additional year for a principal’s use of a firearm. The court then imposed consecutive
sentences of one-third the midterm for all remaining counts but one—that is, an
additional 16 months for the second degree robbery of Nguyen, an additional year for
assaulting Nguyen with a firearm, an additional two years for the first degree robbery of
Gaw, an additional eight months for the attempted extortion of Gaw, an additional eight
months for criminal threats against Gaw, and four additional two-year terms for the first
degree robberies of Urrutia, Galvez, Peters and Honsinger. The court imposed, but
stayed under section 654, a five-year sentence for the second degree robbery of Gaw.
       Defendant timely appeals.
                                      DISCUSSION
I.     Appointment of new appointed counsel
       Defendant argues that all of her convictions must be overturned because the trial
court erred in denying her request to appoint a different attorney to represent her. The
Sixth Amendment guarantees the right to appointment of counsel, but not the counsel of
defendant’s choosing. (People v. Suff (2014) 58 Cal.4th 1013, 1040 [“‘“The right to
counsel of choice does not extend to defendants who require counsel to be appointed for
them.” [Citation.]’”].) When a defendant asks a court to appoint a different attorney to
represent her, the court must (1) offer the defendant an opportunity to explain why she
wants a different lawyer, and (2) decide whether the appointment of new counsel is
warranted because (a) the current lawyer is not providing adequate representation or
(b) that lawyer and the defendant are so embroiled in an irreconcilable conflict that
ineffective representation is likely to result. (People v. Abilez (2007) 41 Cal.4th 472,
487-488 (Abilez); People v. Clark (2011) 52 Cal.4th 856, 912 (Clark); see generally
People v. Marsden (1970) 2 Cal.3d 118, 123.) Defendant asserts that the trial court’s
inquiry into her reasons was inadequate and that the court abused its discretion in

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evaluating the necessity for new counsel. (Abilez, at p. 488.) We reject both claims.
       Defendant asked for new counsel twice. Six months before trial, she told the trial
court that she was not receiving effective representation. The trial court halted the
proceedings, excused the prosecution, and asked defendant why she had a complaint
against her counsel. Defendant stated that her counsel had “a bad attitude,” that she and
counsel would engage in “cussing match[es],” and that counsel could not “communicate
with her.” Counsel then explained that defendant was unhappy with counsel’s
recommendation that defendant waive her speedy trial rights in order to give the People
time to file further charges and to pursue a global settlement of all charges. When the
court noted the logic of that tactic, defendant stated she had no “problem with that,” and
the trial court denied defendant’s request on the ground that counsel was providing
effective representation.
       Two days before trial, defendant again requested new appointed counsel. After
again excusing the prosecution, the trial court invited defendant three separate times to
explain why, and she stated she had a “big conflict of interest” with her attorney and that
“there’s no communication.” Defendant’s counsel explained that defendant was upset
because the probationary sentence defendant wanted to negotiate was not, in counsel’s
view, feasible given the charges and the state of the evidence. The trial court found no
deficient representation and again denied defendant’s motion.
       As these colloquies indicate, the trial court gave defendant ample opportunity to
explain the basis for her request—going so far as to solicit her input three times during
the second hearing. No more is required.
       The trial court also did not abuse its discretion in denying defendant’s request on
the merits. Defendant’s chief complaints are that (1) she disagreed with counsel on the
tactical wisdom of waiting for further charges to be filed and on pursuing a plea deal for a
probationary sentence, and (2) she and counsel had a personality clash, likely stemming
from their tactical disagreements. Neither evinces incompetence of counsel, and neither
constitutes sufficient grounds for the appointment of new counsel. (See Clark, supra, 52

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Cal.4th at p. 912 [“‘“Tactical disagreements between the defendant and [her] attorney do
not constitute an ‘irreconcilable conflict.’”’”], quoting People v. Jackson (2009) 45
Cal.4th 662, 688; People v. Myles (2012) 53 Cal.4th 1181, 1207 [defendant’s “‘claimed
lack of trust in, or inability to get along with, an appointed attorney’” are not “‘sufficient
to compel appointment of substitute counsel’”].)
II.    Sufficiency of the evidence
       Defendant next argues that there is insufficient evidence to support the jury’s
verdicts as to her crimes against Nguyen and Urrutia. In evaluating the sufficiency of the
evidence, we ask whether the verdict is supported by evidence that is reasonable, credible
and of solid value. (People v. Lopez (2013) 56 Cal.4th 1028, 1069.) In so doing, we
must view the evidence in the light most favorable to the verdict as well as draw all
reasonable inferences that support the verdict. (Ibid.; People v. Kraft (2000) 23 Cal.4th
978, 1053.) Applying these standards, we reject defendant’s challenge to the three counts
involving Nguyen, but agree that there is insufficient evidence to support the first degree
robbery charge against Urrutia.
       A.     Nguyen
       Defendant’s attack on the carjacking, second degree robbery, and assault with a
firearm charges involving Nguyen boils down to the contention that there was insufficient
evidence that she was the woman who contacted Nguyen and invited him into the
residence on Rosecrans Avenue in Compton. Defendant points to the shakiness of
Nguyen’s identification of her, and to the difference in the modis operandi as compared
with the other counts (namely, that Nguyen was not lured from a Craigslist ad).
Defendant’s arguments give short shrift to the evidence tying her to the crime—namely,
her admission that she “did it one time . . . [o]ver on Rosecrans,” the recovery of her mail
at the Rosecrans address, and, with the exception of the location and initial “bait,” the
striking similarities between the robbery of Nguyen and of the other men (that is, contact
via email or text message inviting them to a home, defendant inviting them inside a
darkened residence, the subsequent assault and robbery by men with guns). What is

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more, the equivocal nature of Nguyen’s identifications is consistent with Nguyen’s
testimony that they met briefly at the New Year’s Eve party and with defendant’s
admission that she opened the door and walked away. This is ample evidence from
which a jury could find that defendant aided and abetted the two men in robbing,
assaulting and carjacking Nguyen.
       B.     Urrutia
       Defendant mounts two challenges to the evidence supporting the first degree home
invasion robbery count involving Urrutia: (1) Urrutia was not robbed inside an
“inhabited dwelling house”; and (2) defendant did not act in concert with two other
people. Section 213, subdivision (a)(1)(A) elevates a second degree robbery to first
degree if the defendant “voluntarily acting in concert with two or more other persons,
commits the robbery within an inhabited dwelling house.” (§ 213, subd. (a)(1)(A).) A
robbery is committed when “personal property in the possession of another” is “tak[en]”
“from [the victim’s] person or immediate presence” “against his will” by “means of force
or fear.” (§ 211.) In this case, defendant’s cohorts took the $20 from Urrutia when he
was outside, near his car, so the robbery was not “committed” in an “inhabited dwelling
house.” The conviction must accordingly be reduced to second degree robbery.
       The People resist this conclusion, arguing that People v. Frye (1998) 18 Cal.4th
894 (Frye) authorizes a robbery conviction as long as the defendant’s intent to rob is
formed while inside the inhabited dwelling house. However, Frye dealt with a defendant
who entered a house, shot the two victims, and then took items from them; the question in
Frye was whether Frye took the items from the dead victims’ “person or immediate
presence,” and the court concluded he did because he had formed the intent the rob
before he killed them. (Id. at pp. 955-956.) Frye had nothing to do with inhabited
dwelling houses, and its logic does not support the People’s proffered rule that a robbery
is subject to enhanced penalty if the robbers and victims were in an inhabited dwelling at
any point prior to the robbery itself. Because we vacate this conviction and reduce the
conviction to second degree robbery on this ground, we need not reach defendant’s

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alternative contention for doing so.
III.   Duplicative conviction
       Defendant contends she cannot stand convicted both of the second degree robbery
and the first degree (home invasion) robbery of Gaw stemming from the same underlying
conduct. Although a defendant can generally be convicted of multiple offenses for the
same conduct (§ 954), she cannot stand convicted of both a crime and its lesser-included
offense because, by definition, the crime contains every element of the lesser-included
offense and convictions of both mean she is twice convicted of the lesser-included crime.
(People v. Medina (2007) 41 Cal.4th 685, 702; People v. Reed (2006) 38 Cal.4th 1224,
1227.) Because there is no question that second degree robbery is a lesser-included
offense to first degree robbery (cf. People v. Packard (1982) 131 Cal.App.3d 622, 626),
the People concede that the trial court erred in staying the second-degree robbery
conviction rather than vacating it. We agree, and order the conviction vacated.
IV.    Sentencing
       Defendant lastly argues that the trial court erred in not staying, under section 654,
the sentences for two out of the three counts involving Nguyen and for the criminal
threats count involving Gaw. Section 654 prohibits multiple punishments for “[a]n act or
omission.” (§ 654, subd. (a).) A court must therefore impose sentence on the crime with
the “longest potential term of imprisonment” and impose but stay the sentences for all
other crimes that are part of the same “course of conduct” if all of those crimes together
“comprise[] an indivisible transaction.” (People v. Coleman (1989) 48 Cal.3d 122, 162
(Coleman); People v. Islas (2012) 210 Cal.App.4th 116, 129 (Islas).) “‘“Whether a
course of criminal conduct is divisible . . . depends on the intent and objective of the
actor.”’” (People v. Galvez (2011) 195 Cal.App.4th 1253, 1262, quoting People v.
Latimer (1993) 5 Cal.4th 1203, 1208.) Where all of the offenses are “‘merely incidental
to, or were the means of accomplishing or facilitating one objective,’” section 654
requires the sentence for all but one offense to be stayed; if the defendant harbored
multiple criminal objectives, no stay of sentence is required. (Ibid.) The inquiry into a

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defendant’s intent and objectives is a question of fact reviewed for substantial evidence.
(Islas, at p. 129.)
       A.      Nguyen
       We agree with defendant that the robbery, assault with a firearm and carjacking of
Nguyen were accomplished with a single objective—namely, robbing Nguyen. In People
v. Bauer (1969) 1 Cal.3d 368, our Supreme Court held that a defendant’s acts of robbing
three victims and subsequently stealing their car were indivisible parts of a single
objective—theft—for which multiple punishments were not to be imposed. (Id. at pp.
375-377.) The same is true here, as defendant’s cohorts’ actions in pistol whipping
Nguyen, robbing him of his personal effects and taking his car were part of a single,
seamless transaction effected with a single intent. Because substantial evidence does not
support a finding of separate intent or objective, the sentences for robbery and assault
with a firearm involving Nguyen must be stayed.
       B.      Gaw
       We disagree with defendant that the criminal threats conviction involving Gaw
must be stayed. As recounted above, the robbery of Gaw was largely complete by the
time defendant threatened Gaw’s family. More importantly, her acts of photographing
his driver’s license and family photos were unnecessary to the robbery, and made
defendant’s threats of killing them all the more real. Substantial evidence accordingly
supports the trial court’s implied finding that defendant had a separate intent and
objective, and that section 654 did not mandate a stay of the criminal threats sentence.
                                      DISPOSITION
       We vacate the conviction for count 1 (the second degree robbery of Gaw) and
reduce the conviction for count 8 (the first degree robbery of Urrutia) to second degree
robbery (with a resulting reduction to a consecutive sentence from two years to one year).
We also order the sentences on count 5 (the second degree robbery of Nguyen) and count
7 (the assault with a firearm of Nguyen) stayed. The trial court is ordered to prepare and



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forward to the California Department of Corrections and Rehabilitation a modified
abstract of judgment to reflect that defendant’s sentence is 20 years and 4 months.
       As modified, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _______________________, J.
                                                   HOFFSTADT
We concur:




____________________________, Acting P. J.
       ASHMANN-GERST


____________________________, J.
         CHAVEZ




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