Filed 9/16/13 P. v. Rayford CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                          B244230

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA083080)
         v.

REGINALD LAMAR RAYFORD,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S.
Arnold, Judge. Affirmed.


         Alex Coolman, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Paul M. Roadarmel, Jr.,
Deputy Attorney General, for Plaintiff and Respondent.
                                     INTRODUCTION
       A jury found defendant and appellant Reginald Lamar Rayford guilty of second
degree robbery and of attempted second degree robbery. On appeal, he contends that the
trial court failed, sua sponte, to instruct the jury on the lesser included offense of
attempted grand theft to attempted second degree robbery. He also contends that the trial
court failed to hold a hearing on his “implied” Marsden1 motion. We disagree with both
contentions and affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.
       On the evening of Friday, December 16, 2011, Ofelia Bravo and Maritza Reyes
were working at Bates Fish Market, located on El Segundo Boulevard in Gardena. Also
working at that time were Song Ye Eun (the store‟s owner, also known as “Mama”),
Craig Benbo, and Brandon Scott. Jameel Wallace was the market‟s cashier, but he left
earlier that day at 8:30 p.m. Most sales occurred on Fridays, when the store took in
$1,500 to $1,600. Because the market had been robbed in the past, Mama changed the
way in which money was put away. Instead of storing all money in the cash register,
money was kept in a bag or envelope behind a box underneath the register where salt and
pepper and catsup were stored.
       At about 10:45 p.m., Mama took all of the money to her office to count it. While
in her office, she heard a loud noise and someone say “ „Give me money.‟ ”2 Bravo
testified that she was heating water when the door to the market was thrown open. A
man wearing a black jacket and a black bandanna over his face pointed a gun at Bravo
and then at Reyes and demanded that Bravo give him money. Bravo identified defendant
at trial as the man with a gun.




1
       People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2
       During these events, Mama remained in her office.

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      A second, younger man, also wearing a bandanna over his face, came in. He
jumped over the counter, yelled at Bravo to give him money or whatever she had, and,
running his hands over her clothes and grabbing her buttocks, he took her cell phone and
bus pass. The same man began to take Bravo to the back, but when he noticed that
someone was in the bathroom, he pushed Bravo to the floor and tried to open the
bathroom door. Defendant went directly to where the cash register was and pulled out “a
box.” Defendant‟s bandanna fell, revealing his face.3 The two men then ran away.
      Reyes testified she was washing her hands at the sink when she heard someone tell
her coworker to give him money. Turning, Reyes saw a man, who she identified at trial
as defendant, pointing a gun at her. Defendant was on the other side of the high counter,
where customers would be. Another man had jumped over the counter to Bravo.4 When
defendant‟s bandanna slipped, Reyes saw his face. Defendant was in the workspace,
about 13 feet from Reyes, when his bandanna slipped. The men never approached Reyes
or asked anything from her. She never moved from the sink.
      At about this time, officers conducted a traffic stop of a car driven by Wallace, the
employee who had left work early that day. Inside the car were two blue bandannas and
gloves. Reyes and Bravo identified Wallace at a field show-up.
      City of Gardena Police Officer Raul Alarcon was also driving near the market that
night when he saw two Black men running with their hands in the front pockets of their
jackets or hoodies.5 The men wore beanies and white and blue bandannas below their
chins. When the men saw Alarcon‟s patrol car, they stopped running. Suspicious of the


3
       At the preliminary hearing, Bravo testified it was the younger man‟s bandanna that
slipped to reveal his face.
4
       Contrary to Bravo, Reyes testified that the man who jumped over the counter came
into the store first.
5
        Franklyn Ikemefuna, who lived near Bates Market, was getting something from
his car when he saw two men coming from the direction of the strip mall in which the
market was located. He heard an officer give a command to the two men, and then he
heard the sound of something hard and with “definite weight” dropping.

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men‟s behavior, Alarcon ordered them to stop. One man, Jonathan W., complied, but the
other man ran. Nearby, officers recovered an unloaded gun, black sweatshirt, beanie, and
two gloves. From a photographic six-pack, Alarcon identified defendant as the man who
ran.
       DNA swabs were obtained from some of the physical evidence. The samples from
the gloves and hoodie were a mixture of two contributors, and the profile for the major
contributor matched defendant‟s DNA profile. The sample from the beanie was a
mixture of at least three contributors, and defendant was included as a possible
contributor to the mixture.
II.    Procedural background.
       On August 3, 2012, a jury found defendant guilty of count 1, the second degree
robbery of Bravo (Pen. Code, § 211),6 and of count 2, the attempted second degree
robbery of Reyes (§§ 211, 664). As to both counts, the jury found true gun use
allegations (§ 12022.53, subd. (b)).
       On September 7, 2012,7 the trial court sentenced defendant, on count 1, to the
upper term of five years plus a consecutive 10 years for the gun allegation. On count 2,
the court sentenced him to a consecutive eight months plus three years four months for
the gun allegation. Defendant‟s total sentence therefore was 19 years.
                                        DISCUSSION
I.     There was insufficient evidence to warrant instructing the jury on the lesser
included offense of attempted grand theft.
       Defendant contends that the trial court prejudicially erred by failing to instruct the
jury on attempted grand theft on count 2. We disagree.
       “It is settled that, even in the absence of a request, a trial court must instruct on
general principles of law that are commonly or closely and openly connected to the facts
before the court and that are necessary for the jury‟s understanding of the case.” (People

6
       All further undesignated statutory references are to the Penal Code.
7
       After a court trial on a prior strike allegation, the court found it not true.

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v. Montoya (1994) 7 Cal.4th 1027, 1047; see also People v. Moye (2009) 47 Cal.4th 537,
548; People v. Breverman (1998) 19 Cal.4th 142, 154.) Instructions on a lesser included
offense must be given when there is substantial evidence from which the jury could
conclude the defendant is guilty of only the lesser offense. (People v. Manriquez (2005)
37 Cal.4th 547, 584; People v. Cook (2006) 39 Cal.4th 566, 596.) Substantial evidence is
evidence from which a reasonable jury could conclude that the lesser offense, but not the
greater, was committed. (Manriquez, at p. 584; People v. Barton (1995) 12 Cal.4th 186,
201, fn. 8.) In determining whether substantial evidence exists to support instruction on a
lesser included offense, we do not evaluate the credibility of witnesses. (Manriquez, at
p. 585.) We independently review whether the trial court erred by failing to instruct on a
lesser included offense. (Id. at p. 584; People v. Oropeza (2007) 151 Cal.App.4th 73,
78.)
       Robbery is “the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) Attempted grand theft (§ 487) is a lesser included offense of
robbery, which includes the additional elements of a taking from the person or presence
of another by force or fear. (See People v. DePriest (2007) 42 Cal.4th 1, 50; People v.
Bordelon (2008) 162 Cal.App.4th 1311, 1319; People v. Gomez (2008) 43 Cal.4th 249,
254 & fn. 2; People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.)
       Defendant argues that the trial court should have instructed on attempted grand
theft because the jury could have concluded that defendant and his accomplice did not try
to take property from Reyes‟s “immediate presence.” Property is within the victim‟s
immediate presence for robbery purposes if it is “ „ “so within his reach, inspection,
observation or control, that he could, if not overcome by violence or prevented by fear,
retain his possession of it.” ‟ ” (People v. Hayes (1990) 52 Cal.3d 577, 626-627.) The
area must be one within which the victim “ „ “could reasonably be expected to exercise
some physical control over [his] property.” ‟ ” (Id. at p. 627; see also People v. Webster
(1991) 54 Cal.3d 411, 440.) The “immediate presence” requirement of robbery describes



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a spatial relationship, but it can include property located in another room of the house or
building. (People v. Gomez, supra, 43 Cal.4th at pp. 257-258; Hayes, at p. 627.)
       In Hayes, for example, the victim, the manager of a motel, was killed in one of the
motel‟s rooms. (People v. Hayes, supra, 52 Cal.3d at pp. 628-629.) Items were stolen
from the motel office, located 107 feet from where the victim was murdered. Under
those circumstances, Hayes found that “a reasonable finder of fact could conclude either
that the property was not so distant as to be beyond the victim‟s control and protection, or
that it was too distant to be in the victim‟s immediate presence at the time the force was
used.” (Id. at p. 629.) Because the jury could have decided the immediate presence
element either way, instructional error on that element was not harmless.
       This case is very different from Hayes. The money or property defendant and his
accomplice were attempting to take were in the same room as Reyes. The distance from
Reyes to the cash register is unclear, but defendant concedes it was probably not more
than about 15 feet from where Reyes stood at the sink. Although defendant asserts that
the men did nothing “that was intended to force her to turn over property or do anything
in particular,” that is wrong. Defendant pointed a gun at Bravo and at Reyes, rendering
Reyes immobile and unable to move from the sink. Had Reyes not been overcome by
fear, she reasonably could be expected to exercise physical control over property located
just feet away in the same room as she. (See, e.g., People v. Webster, supra, 54 Cal.3d at
p. 440 [where taking occurred about a “mere quarter of a mile” from where victim‟s car
was stolen, the car was in the “zone of immediate presence”].)
       We therefore conclude that no substantial evidence established that defendant
committed only attempted grand theft and not attempted second degree robbery. If
defendant was guilty of anything, it was attempted second degree robbery.
II.    The trial court did not fail to conduct a Marsden hearing.
       Next, defendant contends that the trial court failed to conduct an inquiry into his
“implied” Marsden motion. We reject this contention.
       The need for a Marsden hearing arises when a defendant seeks to discharge his
appointed counsel and substitute another and asserts inadequate representation. A

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defendant must clearly indicate he wants substitute counsel to trigger a Marsden hearing.
(People v. Sanchez (2011) 53 Cal.4th 80, 87-90 & fn. 3; see also People v. Lucky (1988)
45 Cal.3d 259, 281 fn. 8 [“We do not necessarily require a proper and formal legal
motion, but at least some clear indication by defendant that he wants a substitute
attorney”].) A trial court has no sua sponte duty to initiate a Marsden inquiry. (People v.
Leonard (2000) 78 Cal.App.4th 776, 787.)
       Defendant here did not clearly indicate he wanted substitute counsel. Rather, this
is what occurred at the outset of the sentencing hearing:
       “The defendant: . . . [¶] Sir, I‟m requesting for retrial on account of the fact that
my Sixth Amendment right, I believe, was very much violated. The people and
everybody that was supposed to be involved with this case was not here. Initial property
report Brandon Scott was not here. He was the main person who supposedly pointed me
out.
       “So I believe on my Sixth Amendment right here that I was entitled to a fair and
impartial trial on that, the situation. I believe that is my right as well as my 14th as well.
And under U.S. Constitution[,] subdivision 242‟s criminal offense to object and under
code of law to deprive a person of rights protected by the Constitution of the law of the
United States asserted under due process clause of the Constitution‟s 4th Amendment.
       “So on behalf of that and the fact that these women came to court, witnesses that
came to court and testified against me, talking about the mask falling off, nothing. There
is nothing in my report to state that a description was given to the police. I don‟t have no
reports in my police report of that. And [the] fact that, like I said, one of the main
witnesses was not called.
       “If the court granted me this, I would also like to exercise my Faretta rights if I‟m
granted this.
       “The court: In granting your motion for a new trial?
       “The defendant: Yes. I would like to prepare my own case.
       “The court: Anything else?
       “The defendant: That‟s about it. Thank you.

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       “The court: All right. I‟m looking at Penal Code section 1181[.] [N]othing
defendant has stated qualifies as grounds for granting a motion for new trial. So the
motion is denied.”
       Defendant thus merely said he wanted a retrial and to represent himself. At no
time did defendant express dissatisfaction with his appointed counsel, impliedly or
otherwise, and he did not ask for substitute counsel. Nor did defense counsel indicate
that her client had expressed any problems with her representation. This contrasts with
People v. Washington (1994) 27 Cal.App.4th 940, 942-943. In that case, the defendant‟s
ambiguous comments and his counsel‟s indication that the defendant was making a
Marsden motion led the trial court to conclude that a Marsden hearing was necessary.
Notably, Washington did not address whether the defendant‟s ambiguous statements were
a clear indication he wanted substitute counsel; the court merely accepted the trial court‟s
conclusion. (Washington, at p. 943, fn. 3.) Here, the trial court clearly concluded that
defendant was asking for a new trial and not a Marsden hearing. Given the absence of a
clear indication in the record that defendant was asking for such a hearing, that
conclusion was proper.
       Defendant did, however, raise an issue with certain events at trial, for example,
that one of the employees present during the robbery did not testify. But defendant did
not link this omission to his defense counsel as opposed to the prosecutor. Nor is it clear
whether defendant was complaining that the witness should have been called or that the
absence of the witness‟s testimony rendered the prosecutor‟s case inadequate to meet the
burden of proof. In any event, to the extent defendant expressed a difference of opinion
about trial tactics, this does not place a trial court under a duty to hold a Marsden hearing.
(People v. Lucky, supra, 45 Cal.3d at p. 281.) We therefore find that defendant did not
clearly indicate he wanted substitute counsel.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                       ALDRICH, J.


We concur:


             KLEIN, P. J.




             CROSKEY, J.




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