THE PEOPLE v. Sheldon Broaster, Defendant and Appellant. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Sheldon Broaster appeals from the judgment entered following a jury trial which resulted in his conviction of second degree robbery (Pen.Code, § 211) ¹ and his admissions that he had previously been convicted of four crimes for which he served prison terms (§ 667.5, subd. (b)) and a serious felony within the meaning of section 667, subdivision (a)(1) and the Three Strikes law (§ 667, subds.(b)-(i), § 1170.12, subds. (a)-(d)).  The trial court sentenced Broaster to 11 years in prison.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The prosecution's case.

At approximately 3:00 p.m. on May 25, 2010, 17–year–old Cameron Brown was listening to music through ear phones attached to his Blackberry cell phone while he was waiting for the bus at the corner of Florence and Broadway in Los Angeles.   Broaster approached Brown from behind and asked him, “Where are you from, cuz?”   Brown concluded that Broaster was a “gang-banger” and, as he was wondering whether Broaster was going to rob or hit him, said that he was from “nowhere.”   Broaster then repeated the question over and over for approximately two minutes.   Each time Broaster asked the question, Brown answered that he was from “nowhere.”

After he had asked Brown where he was from 20 or 30 times, Broaster said to Brown, “[G]ive me a dollar, get me something to drink.”   Brown responded, “I don't have it––I don't have a dollar.   I don't have any money, and I am not giving you anything.”   Broaster then told Brown, “[I]f you don't––if you don't give me a dollar or some money, I am going to take ․ everything you have.”

Broaster started to “pat [Brown] down.”   He first touched Brown's legs, then attempted to put his hands into Brown's pants pockets.   Brown pushed Broaster away and Broaster acted as though he was going to hit Brown.   Instead, Broaster “snatched” Brown's cell phone from his belt, breaking the case and the earphones, and ran across the street.

Approximately two seconds after Broaster had taken Brown's phone, Brown spotted a police car.   He flagged the officers down and told them what had happened.   At this point Brown could still see Broaster and he pointed Broaster out to the officers.

On May 25, 2010, Los Angeles Police Officer Taylor Hitchens was on patrol with his partner, Officer Derick Hockaday.   The officers were in uniform and driving a black and white marked car.   That afternoon, the officers were on routine patrol in the area surrounding Florence and Broadway.   As they drove through the intersection they saw Brown, who looked as though he was trying to get the officers' attention.   He looked “scared” and was “frantically waving his arms trying to flag [the officers] down.”   Brown even moved into the street so that he was “almost in the way of [the] police car.”   Hichens and Hockaday stopped and Brown told them that he had been robbed.   As he pointed at Broaster, who was at that point approximately 15 feet away, Brown stated that Broaster had just stolen his phone.   When Officer Hitchens then made eye contact with Broaster, who was holding a black cell phone, Broaster “took off running.”   Officer Hockaday, who was driving the police car, made a U-turn and followed Broaster as he ran westbound on Florence, then up a driveway toward an auto repair shop.   When Broaster, after tossing the phone to the ground, jumped up onto a fence and attempted to climb over a wall, Hockaday stopped the patrol car.   Officer Hitchens got out, grabbed Broaster by his belt and pulled him down.   After Hitchens had taken Broaster into custody, another officer retrieved Brown's cell phone.

At approximately 3:00 p.m. on May 25, 2010, Los Angeles Police Sergeant Daniel Gonzalez responded to a call directing him to the intersection of Florence and Broadway.   After first meeting with Officer Hitchens, Gonzalez met Brown.   Gonzalez told Brown that the police had someone in custody, but that it might not necessarily be the person who stole his cell phone.   Gonzalez then took Brown around the corner, where Broaster was being held.   Brown, without prompting, immediately said, “[T]hat's absolutely him.   It just happened and those are the clothes he was wearing.”

b. Defense evidence.

On May 25, 2010, Los Angeles Police Officer Derick Hockaday interviewed Cameron Brown regarding the incident involving Broaster to determine “exactly what happened.”   During the interview, the officer attempted to “get as much information as possible.”   After completing the interview with Brown, Hockaday wrote a report.   He included in the report a description of what Broaster had been wearing that day:  “[b]lack jeans, [a] black shirt [and] black shoes.”

During the interview, Brown did not tell the officer that Broaster “made [a] move[ ] [toward] him as if to strike him with his fist, a sudden faint, sort of a fake punch[.]”  If Brown had made such a statement, Hockaday would have included it.   In addition, although Brown told Hockaday that Broaster asked him where he was from, he did not tell the officer that Broaster asked the question 20 or 30 times.   Neither did Brown tell Hockaday that he had pushed Broaster's hands away from him or that Broaster had “ripped an ear phone out of his ear.”   Brown did tell Officer Hockaday that Broaster had “ripped his cell phone from his belt.”

2. Procedural history.

Following a preliminary hearing, on July 20, 2010 an information was filed charging Broaster with grand theft person in violation of section 487, subdivision (c).  It was further alleged that Broaster had previously suffered four convictions for which he served prison terms within the meaning of section 667.5, subdivision (b) and a conviction or juvenile adjudication for a violent or serious felony within the meaning of the Three Strikes law (§§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)).

Broaster made a Romero ² motion requesting that the trial court strike the alleged Three Strikes prior conviction.   After the trial court denied the motion, the information was amended to add a second count.   Count 2 charged Broaster with second degree robbery in violation of section 211.   The trial court then denied several additional motions made by defense counsel, including a motion to set aside the information (§ 995) and a Pitchess ³ motion.

On November 5, 2010, a second amended information was filed.   In addition to the allegation that Broaster had previously suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law, it was further alleged as to count 2 (the allegation that Broaster committed second degree robbery), that he had suffered a prior conviction for a serious felony within the meaning of section 667, subdivision (a)(1).

Trial was by jury.   On December 7, 2010, a panel of 12 jurors and two alternates was sworn to try the case.

After all the evidence had been presented and the jury was deliberating, Broaster waived his right to a trial, his right to confront and cross-examine the witnesses against him, the right to use the subpoena power of the court to call witnesses in his defense and his right to remain silent and admitted the alleged prior convictions and prison terms.   The trial court found that the waivers had been “knowingly, intelligently, and understandingly made and that the admissions [were] freely and voluntarily entered․”

On December 9, 2010, the jury found Broaster not guilty of the crime of grand theft person in violation of section 487, subdivision (c), as charged in count 1. The jury found Broaster guilty of count 2, second degree robbery in violation of section 211.

Before sentencing, on January 3, 2011 Broaster requested a Marsden ⁴ hearing.   After the district attorney left the courtroom, Broaster indicated that he felt as though his counsel had “tak[en] advantage because she brought [him] to trial ․ knowing that [he did not] understand ․ everything that [was] going on․”  Broaster continued, “I don't even know the law.   I don't know if she got me convicted by making a wrong decision or bringing me to trial, because I saw a psychiatrist [and] he said I was going to go get some help before I even c[a]me to trial, and she brought me to trial regardless of that[.]”

Defense counsel informed the court that she was in possession of a letter from Dr. Marshall Cherkas which she had offered as a mitigating factor with regard to sentencing.   The letter stated that Broaster had been “diagnosed with bipolar disorder with schizophrenia, and ․ that Mr. Broaster [was] not competent, but could easily be made competent if someone [would] go over the functions of the various court officers with him.”   Counsel continued:  “I've represented Mr. Broaster since June, and in my opinion he has been competent throughout the proceedings.  [¶] He and I have discussed the case extensively.   We have discussed strategy extensively.   When he talks about not knowing the law, that's my job, that's why I have been working with him on this case.  [¶] When Mr. Broaster made the comment about me taking him to trial, throughout this case Mr. Broaster ha[s] had an offer of a non-strike with four years at 80 percent and I had encouraged him to take it.  [¶] Additionally, when we came here to Norwalk, when we were in the master calendar court at the Criminal Courts Building, I encouraged him to waive time so we could stay there.   For whatever reason, I just thought that––because I'm not familiar with the Norwalk Courthouse––so I felt more comfortable at the Criminal Courts Building.”

The trial court responded:  “So you weren't forcing him to trial, in effect you were trying to delay the trial?”   After counsel indicated that it appeared the trial court understood the situation, the court stated:  “This happens all the time.   I don't know why people don't listen to their lawyers.   She worked out a pretty good deal for you.   You're talking about four years.”   When Broaster stated his counsel knew he was not inclined to accept a “deal” because counsel knew the witnesses were lying, the trial court responded:  “We heard the trial, and considering the facts in this case, I don't know what kind of defense was possible for you.   Everybody saw you, identified you, they chased you right there, they even found the cell phone.   You people, you're thinking in a fantasy.”   The trial court then denied Broaster's Marsden motion.

At sentencing, defense counsel requested that the trial court impose the lowest possible term.   She argued that the crime had not involved “the threat of great bodily harm and violence” and in committing it, Broaster had not “exhibit[ed] a high degree of cruelty.”   In addition, it had been determined that Broaster was mentally ill.   Counsel stated:  “It was reported to Dr. Cherkas by Mr. Broaster that he suffers from bipolar disorder with schizophrenia[.]”  Counsel believed his illness had a “big influence [on Broaster's] behavior.”

The trial court sentenced Broaster to the mid-term of three years in prison for his conviction of robbery as alleged in count 2. The court stated:  “I do that because ․ I do not think that this involves violence and ․ the [object] taken was a cell phone, and also I take into consideration Dr. Cherkas' report and arguments of [Broaster's counsel].”   Because Broaster had a prior strike conviction, the court then doubled the term to six years in state prison.   The court imposed the mandatory term of five years for the finding Broaster had previously been convicted of a serious felony pursuant to section 667, subdivision (a)(1), for a total of 11 years in prison.   For the remaining three prior convictions and prison terms, the trial court imposed three 1–year enhancements, the terms to run concurrently to the sentences already imposed.   In total, the trial court sentenced Broaster to 11 years in prison.   The court recommended that Broaster be housed in a facility where he could be treated for both his mental illness and drug addiction.

The trial court awarded Broaster presentence custody credit for 224 days actually served and 15 percent, or 33 days, of conduct credit.   The court imposed a $30 security fee (§ 1465.8, subd. (a)(1)), a $200 restitution fine (§ 1202.4, subd. (b)), a $200 parole revocation restitution fine (§ 1202.45) and a $30 criminal conviction fee (Gov.Code, § 70373).

Broaster filed a timely notice of appeal on January 3, 2011.

This court appointed counsel to represent Broaster on appeal on April 15, 2011.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed August 11, 2011, the clerk of this court advised Broaster to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   On August 22, 2011, Broaster filed a supplemental brief in which he asserted his counsel had been ineffective for failing to inform the trial court that a doctor had found him incompetent to stand trial.   Broaster attached to his brief the July 8, 2010 letter from Dr. Marshall S. Cherkas in which the doctor indicates that Broaster “understands that he is charged with ‘robbery’ but seems not to understand any of the functions of the court including that of the judge, jury or district attorney.   He does know that the public defender is to help him.”   Cherkas also indicated that Broaster had told him that he had been “diagnosed as having bipolar disorder with schizophrenia.”   The doctor concluded that Broaster was “not competent to stand trial but could easily be made competent if someone [would] go over the functions of the various court officers with him.”

“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.  [Citations.]”  (People v. Carter (2003) 30 Cal.4th 1166, 1211;  see Strickland v. Washington (1984) 466 U.S. 668, 694.)   If the defendant makes an insufficient showing with regard to either component, the claim must fail.  (People v. Holt (1997) 15 Cal.4th 619, 703.)

Here, a review of the record indicates Broaster's counsel was more than competent.   As noted above, at Broaster's Marsden hearing counsel informed the court that she was in possession of Dr. Cherkas's letter indicating that Broaster had been “diagnosed with bipolar disorder with schizophrenia, and ․ that Mr. Broaster [was] not competent, but could easily be made competent if someone [would] go over the functions of the various court officers with him.”   Counsel apparently did go over the functions of the various court officers with Broaster, discussed trial strategy with him, and encouraged him to waive time so that he could be tried at the Criminal Courts Building where counsel felt most comfortable.   Then, at sentencing proceedings, counsel again produced the letter and offered it to show that Broaster's mental illness should be considered as a mitigating factor.

Most importantly, perhaps, is the fact that counsel repeatedly encouraged Broaster to not go to trial at all.   In a case where Broaster could have been sentenced to a term of up to 15 years in prison, counsel had negotiated with the prosecutor a plea bargain under the terms of which Broaster would have been sentenced to four years at 80 percent.   Broaster, however, refused to accept the offer.   Although the evidence against him was extremely persuasive and he had virtually no defense, Broaster insisted on going to trial.   He cannot blame counsel for that decision.

Finally, in spite of the fact that the prosecutor was asking for the maximum sentence possible, the trial court imposed the mid-term for Broaster's conviction of robbery in part due to the “arguments of [Broaster's] lawyer.”   After imposing the sentence enhancements and appropriate fines, the trial court addressed Broaster and stated:  “And the reason I'm not imposing the maximum term, like the district attorney has requested, is because your attorney has done a fine job of representing you.   That's the reason I didn't give you the maximum.”

On this record, Broaster has failed to show that his trial counsel's performance was deficient or that he suffered any prejudice as a result of counsel's actions.   His claim that his counsel was ineffective has no merit.

REVIEW ON APPEAL

We have examined the entire record and are satisfied appellate counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278–284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. People v. Superior Court (Romero) (1996) 13 Cal.4th 497..  FN2. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

FN3. Pitchess v. Superior Court (1974) 11 Cal.3d 531..  FN3. Pitchess v. Superior Court (1974) 11 Cal.3d 531.

FN4. People v. Marsden (1970) 2 Cal.3d 118..  FN4. People v. Marsden (1970) 2 Cal.3d 118.

KLEIN, P. J. KITCHING, J.