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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

AARON MARTIN SIMPKINS,

Defendant and Appellant.

E061098

(Super.Ct.No. FVI1302855)

OPINION

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.
2

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.