Filed 10/19/15 P. v. Simpkins 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E061098

v.                                                                       (Super.Ct.No. FVI1302855)

AARON MARTIN SIMPKINS,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed.

         Thea Greenhalgh, 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, Melissa Mandel, and Laura

Baggett, Deputy Attorneys General, for Plaintiff and Respondent.




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          While in jail, defendant and appellant Aaron Martin Simpkins agreed to do a favor

for fellow inmate Troy Faruk. Upon his release, defendant would move Faruk’s car from

the apartment complex where it was parked so that it would not get towed. However,

instead of relocating the car, defendant sold it to a friend. A jury convicted defendant of

embezzlement (Pen. Code, § 508;1 count 1), and the court declared a mistrial as to grand

theft by false pretense (§ 487, subd. (a); count 2). Defendant admitted five prior

convictions, including one strike. Defendant was sentenced to a term of 9 years in state

prison.

          Defendant raises two arguments on appeal. He contends the court erroneously

denied his Marsden2 motion because he was involved in an irreconcilable conflict with

his attorney. He also contends the court erred in using CALCRIM No. 1806 as the

instruction for the embezzlement charge without also including the language from

CALJIC No. 14.07 regarding the element of a relationship of trust. Because we conclude

that the issues between defendant and his counsel did not rise to the level of an

irreconcilable conflict and that CALCRIM No. 1806 includes trust as a required element

of embezzlement, we affirm.




          1   All further unspecified statutory references are to the Penal Code.

          2   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).



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                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       A.     Trial Evidence

       Defendant and Troy Faruk met when they were both in custody at West Valley

Detention Center in Rancho Cucamonga. They formed a friendship through discussing

their religious beliefs. Faruk told defendant that his apartment lease was about to

terminate and that his car would be towed if it remained parked at the apartment complex.

Defendant was going to be released from custody before Faruk and, after a few

discussions, agreed to move Faruk’s car from the apartment complex to his family’s

residence on Adelia Street in Hesperia. Faruk arranged for his in-home care provider to

deliver the car keys to defendant.

       The agreement was never memorialized in writing. Faruk never gave the

defendant permission to do anything with his car other than move it to a new location so

that it would not get towed. Faruk testified that he asked defendant to help him because

he trusted defendant and considered him to be a friend. Faruk offered to pay defendant

for moving his car but defendant declined.

       After his release defendant contacted Cheryl Craig, a longtime family friend and

offered to sell her Faruk’s car. He told her that he was selling the car for a man who was

in prison for life and that he planned to give the man the proceeds of the sale. Craig

asked defendant if he had documentation indicating that he had authority to sell the car.



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Defendant showed her lien sale papers that were in his name and Craig believed this to be

sufficient. Craig agreed to buy the car for $1,500, which she paid to defendant in several

installments.

       About a week before Faruk’s release date, defendant became anxious about Craig

completing the payments and registering the car in her name. Defendant brought Craig a

bill of sale stating that he was the seller and Craig was the buyer, and they both signed it.

       When Faruk was released, he went to the residence on Adelia Street in Hesperia to

retrieve his car but it was not there. The people who lived there had bought the house a

year before and did not know defendant. After defendant refused to tell Faruk where the

car was Faruk contacted the police.

       When Craig attempted to register the car in her name, she was informed that it was

stolen. Craig turned over the car and never received the money she paid to defendant to

purchase it.

       B.       The Plea Offer, Competency Hearing, and Marsden Motion

       Before trial, defendant’s attorney requested a competency hearing because he

believed defendant might be delusional.3 Counsel stated that defendant was not listening

to him and was rambling and unable to communicate logically. The court granted the



       3  Section 1368, subdivision (b) requires the court to conduct a hearing to
determine a defendant’s competence “[i]f counsel informs the court that he or she
believes the defendant is or may be mentally incompetent.”



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request, stating that counsel was an experienced attorney who had never requested a

competency hearing in all of the years “that I’ve dealt with you.” After the court’s ruling,

the following exchange ensued:

       “The Defendant: Your Honor, this is crazy. That’s just kind of crazy. . . . This

guy [is] going to step down because of the simple fact that I want to go to trial is

something totally against what I’m—can I pro per myself, then?

       “The Court: No. Not at this time.

       “The Defendant: That’s crazy.

       “The Court: Your attorney has declared a doubt.

       “The Defendant: You’re going to drop me like that?

       “[Defense Counsel]: I’m still your lawyer.

       “The Defendant: My God. You’re going to do me like that? You’re going to do

me all up here and shit on me?”

       Defendant was assessed and found competent to stand trial. The day before trial,

defendant requested a substitution of attorney. At the Marsden hearing, defendant stated

that he and his attorney could not see “eye-to-eye” on anything. He believed that because

his attorney had suggested he take the plea offer, his attorney was not vigorously

advocating for him. He stated that his attorney had called him “stupid” and a “fool” for

not taking the offer. He believed that his attorney had declared a doubt as to his




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competence as retaliation for not accepting the offer. Defendant was worried that he was

going to be “railroaded” and “dump[ed]” at trial.

       Counsel told the court that, at least initially, he thought that he and defendant had

a good relationship. He stated, “I like [defendant]. I understand where he’s coming

from. He’s always spoke[n] to me truthfully. And again . . . I know he’s upset for the

1368.” He believed that the plea offer was the best he could obtain. The prosecution had

offered 16 months, plus 32 months for the prior strike, whereas defendant’s sentence

could be as high as 16 years because of his prior convictions. Counsel admitted he had

“become passionate over” defendant’s refusal to take the offer because he did not want

him to “gamble with his life,” given his age and prison exposure. Despite his concerns

regarding defendant’s potential prison exposure, counsel stated that he was prepared for

trial and had a trial strategy in mind.

       The court explained to defendant that attorneys have an ethical obligation to

request a competency hearing in the face of a doubt about a client’s mental competency

to stand trial. It also explained to defendant that he did not “have to like [his] attorney”

or “like the attorney’s strategy.”

       Defendant responded that he struggled with trust issues as a result of his paranoia

and schizophrenia. He acknowledged that a “normal person” would feel comfortable

with his lawyer, but his “mindset” did not allow him to feel comfortable. He explained

that “as a mental person” he did not feel comfortable with a person if he had “a suspicion



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or inkling of a doubt” about them. His tendency was to “shell up” and stop

communicating effectively or rationally when he felt that someone was against him.

       The court reminded defendant that he had an obligation to assist his attorney,

stating, “If you decide that you’re just going to not work with [your attorney], that’s

going to be on you.” Defendant asked the court to “have [my attorney] . . . come down

and sit with me, and then go over all this stuff before so we better prepare ourselves for a

trial so that we can get an understanding.” The court denied the Marsden motion.

                                               II

                                        ANALYSIS

       A.     Defendant’s Marsden Motion

       Defendant argues that the court’s denial of his substitution motion was error. He

asserts that he felt “disrespected and ignored” when his counsel recommended he take the

plea offer, chided him for not taking the offer, and questioned his competency.

Defendant construed his attorney’s plea recommendation as a “refusal to believe in [his]

innocence” and as an indication that he would not vigorously defend him at trial.

According to defendant, all of these suspicions about his attorney “translated into a

relationship of irreconcilable differences.”

       We review a trial court’s denial of a Marsden motion for abuse of discretion.

(People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) A defendant seeking substitution

of appointed counsel is entitled to relief if the record clearly shows that counsel “is not



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providing adequate representation or that defendant and counsel have become embroiled

in such an irreconcilable conflict that ineffective representation is likely to result.” (Ibid.)

The Marsden hearing is an informal hearing for the trial court to decide whether the

defendant’s grievances have “sufficient substance” to warrant counsel’s replacement.

(People v. Hines (1997) 15 Cal.4th 997, 1025.) The trial court determines credibility at

the hearing; it may find a defendant’s complaint unfounded if it credits counsel’s

explanations. (Taylor, supra, at p. 600.)

       “ ‘[A] defendant may not force the substitution of counsel by his own conduct that

manufactures a conflict.’ ” (Taylor, supra, 48 Cal.4th at p. 600.) The court may deny a

Marsden motion if the alleged deterioration in the attorney-client relationship “was due to

defendant’s willful, defiant attitude or to a mental problem that was either feigned or

real.” (Ibid.)

       Here, the trial court did not abuse its discretion in denying defendant’s request for

substitution of counsel. The court provided defendant an opportunity to air his concerns

and counsel an opportunity to respond. Based on the record of the hearing, the court

could reasonably conclude that defendant’s suspicions about his attorney’s ability to

vigorously represent him were a result of defendant’s own trust issues, not counsel’s

behavior.

       Defendant was upset by his attorney’s recommendation that he accept the plea

offer and his attorney’s request for a competency hearing. Counsel explained that his



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plea recommendation had nothing to do with his beliefs about defendant’s guilt. He was

prepared to defend his client and had a trial strategy. Counsel’s concern was that he did

not want defendant to risk going to jail for a much longer period. As for the competency

hearing, the court had already determined that counsel’s doubt as to defendant’s mental

state was genuine and was not a tactic to delay trial.

       After the court explained to defendant that his attorney had an ethical duty to

request the competency hearing and that defendant likewise had a duty to assist his

attorney, defendant acknowledged that his concerns were a result of his mental health

issues. He admitted that when he felt suspicious or had an “inkling” of a doubt about a

person, he found it very hard to communicate with that person or trust them. He

recognized that this was unique to him and that most people would not react the way that

he had.

       “The mere ‘ “lack of trust in, or inability to get along with,” ’ counsel is not

sufficient grounds for substitution.” (Taylor, supra, 48 Cal.4th at p. 600.) Defendant’s

concerns were based on his own doubts about his attorney, doubts which defendant

recognized were unique to him and were likely not objectively reasonable.

       Defendant’s reliance on the allegation that his attorney had called him “stupid”

and “a fool” for refusing to take the plea offer does not affect our conclusion. Assuming

the allegation is true, “heated words alone do not require substitution of counsel.”

(Taylor, supra, 48 Cal.4th at p. 600, citing People v. Smith (1993) 6 Cal.4th 684, 696.)



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The relationship between defendant and his attorney had not devolved into one of

bitterness, antagonism, or irreconcilable differences. Counsel showed concern for

defendant’s potential prison exposure and a readiness to defend him at trial. The court’s

refusal to appoint new counsel was reasonable under these circumstances.

       B.     The Embezzlement Instruction (CALCRIM No. 1806)

       Defendant argues that the standard instruction for embezzlement, CALCRIM No.

1806, was incomplete because it did not properly describe the relationship of trust

required for a conviction. He contends that the court should have used CALJIC No.

14.07 instead because it requires that the victim entrust property to the defendant

“pursuant to” a “relation of trust and confidence.” However, defendant did not request

CALJIC No. 14.07 nor did he raise any objections to CALCRIM No. 1806 to the trial

court. By failing to object and give the court a chance to address the alleged error before

instructing the jury, defendant waived this argument. (People v. Dunkle (2005) 36

Cal.4th 861, 895-897, disapproved of on other grounds by People v. Doolin (2009) 45

Cal.4th 390, 421, fn. 22.)

       In any event, there was no instructional error because CALCRIM No. 1806 is a

complete and correct statement of the law on embezzlement and CALJIC No. 14.07

would have been duplicative and unnecessary. (See, e.g., People v. Fenderson (2010)

188 Cal.App.4th 625, 636-637 [citing CALCRIM No. 1806 for the elements of

embezzlement].) Embezzlement is “the fraudulent appropriation of property by a person



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to whom it has been intrusted.” (Pen. Code § 503.) As read to the jury, CALCRIM No.

1806 provides that the elements of embezzlement are: “1. An owner or the owner’s agent

entrusted his property to the defendant; [¶] 2. The owner or owner’s agent did so because

he or she trusted the defendant; [¶] 3. The defendant fraudulently converted that property

for his own benefit; [¶] AND [¶] 4. When the defendant converted the property, he

intended to deprive the owner of it or its use.” The instruction clarifies that “[a] person

acts fraudulently when he or she takes undue advantage of another person or causes a loss

to that person by breaching a duty, trust or confidence.” (Second italics added.)

       Defendant’s preferred instruction, CALJIC No. 14.07, reads: “Every person to

whom property has been entrusted who fraudulently appropriates that property to his own

use or purpose, is guilty of the crime of theft by embezzlement. [¶] In order to prove this

crime, each of the following elements must be proved: [¶] 1. A relation of trust and

confidence existed between two persons; [¶] 2. Pursuant to that relationship one of those

persons accepted property entrusted to him by the other person; and [¶] 3. With the

specific intent to deprive the other person of his property, the person appropriated or

converted it to his own use or purpose.” CALCRIM No. 1806 and CALJIC No. 14.07

use slightly different phrasing, but both require that the defendant gained access to the

victim’s property by way of a relationship of trust. There is no reason for the court to

have given both instructions.




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       Defendant argues that CALCRIM No.1806 is inadequate on the subject of trust

because it is essential that the jury know that the relationship of trust is “between two

persons” and is “not limited to the owner’s trust.” Defendant asserts that the prosecution

only presented evidence as to Faruk’s trust in defendant and that it failed to establish that

defendant trusted Faruk. We disagree. There is no requirement that, in order to be guilty

of embezzlement, a defendant must trust the victim. Rather, when embezzling another’s

property, the wrongdoer knows that the victim trusts him or her and takes advantage of

that fact to obtain access to the property. (See, e.g., People v. Nazary (2010) 191

Cal.App.4th 727, 742.) The language of CALCRIM No. 1806 clearly conveys this.

       Moreover, to the extent that defendant is arguing that the prosecution presented

insufficient evidence of a relationship of trust between Faruk and defendant, that is not a

legal question of adequacy of the instruction but a factual question for the jury to decide.

Based on Faruk’s testimony and the testimony of the care provider who gave defendant

the car keys, the jury could reasonably find that Faruk trusted defendant and defendant

took advantage of that trust.

       Finally, defendant argues that embezzlement requires a “fiduciary relationship,”

which is a technical term requiring a clarifying instruction. He argues further that if the

court had defined a fiduciary relationship, it would have been clear to the jury that such a

relationship cannot exist “between two jailed inmates.” Defendant is incorrect that some

type of special or technical fiduciary relationship is required for the entrustment element



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of embezzlement. All that is required is a relationship of trust, as that word is commonly

understood, as opposed to, e.g., no relationship or a debtor-creditor relationship. (People

v. Wooten (1996) 44 Cal.App.4th 1834, 1845-1846; see also People v. Nazary, supra, 191

Cal.App.4th at p. 742 [the “fiduciary” relationship required for embezzlement is simply a

relationship of “trust and confidence”].) “A court has no sua sponte duty to define terms

that are commonly understood by those familiar with the English language.” (People v.

Bland (2002) 28 Cal.4th 313, 334.) Whether two inmates actually formed such a

relationship is a question of fact.

       The instruction on embezzlement was complete. We find no error.

                                            III

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               CODRINGTON
                                                                                          J.

We concur:


RAMIREZ
                         P. J.


MILLER
                            J.



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