P. v. Azzara
Filed 5/30/13 P. v. Azzara CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
RICHARD MATTHEW AZZARA,
Defendant and Appellant.
B240981
(Los Angeles
County
Super. Ct.
No. SA075752)
APPEAL from judgment of the Superior
Court of Los
Angeles County, Elden S. Fox and Richard A. Stone, Judges. Affirmed.
Peter Knecht for Defendant and
Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Nima Razfar, Deputy Attorneys
General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Richard Matthew Azzara
appeals the judgment of conviction on
charges of identity theft, forgery, unlawful access card activity, and drug
possession. Azzara contends that (1)
insufficient evidence supported his conviction for identity theft; (2) the
trial court violated his constitutional rights by denying his request for a
continuance on the first day of trial so that he could retain private counsel;
and (3) the trial court erred in failing to hold a Marsden hearing. We find no
error and affirm the judgment.
BACKGROUND
I.
Azzara was charged with two counts of
Buckalew and Connie Gonsalves (Pen. Code, § 530.5, subd. (a)),
one count of forgery (§ 484f, subd. (a)), one count of
(§ 484i, subd. (c)), and one count of possession
of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). It was also alleged that Azzara had a prior
strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and
served a prior prison term (§ 667.5, subd. (b)).
II.
On August 13, 2010, Deputy Hector
Mancinas of the Los Angeles County Sheriff’s Department stopped a black 2007
Mercedes CLS with no license plate, driven by Azzara. Deputy Mancinas searched the vehicle and
found a wallet in the back seat that contained a driver’s license with Azzara’s
photograph but bearing the name of “Robert Maguire.†Deputy Mancinas ran a check of that license
and discovered the information did not match.
The wallet also contained two credit cards with the name “Robert
Maguire†as well as nine fraudulent gift cards.
A search of Azzara’s person yielded $2,057 in cash.
After he was arrested and read his
Mancinas that a friend had showed him how to make credit cards using an
embosser, a machine that imprints information onto magnetic strips on credit
cards. Azzara admitted he had an
embosser, credit cards, and identity profiles of people in his home and that he
had made credit cards.
Later that day, Deputy Mancinas, along
with other deputies and Detective Phillip Briones, tried to access Azzara’s
residence using keys he had given them.
They could not open the door; Detective Briones believed the door was
locked from the inside. The deputies
thought they heard a toilet flushing inside, and several lights were on in the
house. They left after 30 minutes.
They returned several days later with
a search warrant; the residence was not under surveillance in the interim. No one was home and they forced entry. They searched the residence and found bills
and other paperwork bearing Azzara’s name.
They also found an embosser machine, numerous blank gift cards and
credit or debit cards, shredded plastic gift and credit cards, carbon stripping
consistent with magnetic strips, computer towers, two external hard drives,
numerous laptop computers, small photographs of Azzara that were the size of a
driver’s license or passport photo, and a Fargo printer, which is used to print
logos or pictures on credit and debit cards.
One of the hard drives contained two documents, each of which contained
40-50 credit card profiles, including names, an account number, and in some
instances an expiration date. Included
was account information for Rebecca Buckalew and Connie Gonsalves, both of whom
recently had fraudulent activity on their accounts. A small amount of what appeared to be
methamphetamine was found.
After the search, Detective Briones
questioned Azzara, who was in custody.
Azzara admitted that the embosser and the computer towers found in the
residence belonged to him. He admitted
that he used the embosser to create fraudulent gift cards.
However, Azzara stated that he had no
knowledge of the blank credit and debit cards found in his residence and did
not know that they were in his house. At
one point in the interview he stated that the external hard drives belonged to
him, but later said they were not his.
He denied that any of the other items belonged to him. He stated that the Fargo printer belonged to
two other men, an Asian named Gin and an Armenian named Mike, who used it to
create fraudulent gift cards. Azzara
stated that he was in contact with the two men on a weekly basis and was present
each week when they used his residence and his computers to make 40-50
fraudulent gift cards at a time. They
would pay him four or five fraudulent gift cards in return.
III.
The jury found Azzara guilty on all
five counts, and the court found true the prior conviction allegations in a
years for the first count of identity theft, doubled pursuant to the Three
Strikes law. The court struck the prior
conviction for purposes of sentencing on the remaining counts and dismissed the
prior prison term enhancement pursuant to section 1385. The court imposed a consecutive eight-month
term on the drug possession count and concurrent terms on the remaining
counts. This timely appeal followed.
I.
Azzara challenges the sufficiency of
the evidence for his conviction under section 530.5, which provides in
pertinent part that “[e]very person who willfully obtains personal identifying
information . . . of another person, and uses that information for any unlawful
purpose, including to obtain, or attempt to obtain, credit, goods, services,
real property, or medical information without the consent of that person, is
guilty of a public offense.â€
(§ 530.5, subd. (a).) “In
order to violate section 530.5, subdivision (a), a defendant must both (1)
obtain personal identifying information, and (2) use that information for an
unlawful purpose.†(People v. Mitchell (2008) 164 Cal.App.4th 442, 455.) Azzara contends that insufficient evidence
supported his convictions for identify theft because no evidence established
that he obtained the debit or credit card information of victims Gonsalves and
Buckalew or that he used it for unauthorized transactions.
“In assessing a claim of insufficiency
of evidence, the reviewing court’s task is to review the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.†(People
v. Rodriguez (1999) 20 Cal.4th 1,
11.) Reversal of a conviction for
insufficient evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People v. Bolin (1998) 18 Cal.4th
297, 331.) Where substantial evidence
supports a conviction, we must affirm, even though the evidence would also
reasonably support a contrary finding. (
118.)
“Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of
fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.
[Citation.]†(
1181.)
Azzara contends that no evidence was
presented that he obtained or used the debit or credit card information found
on the hard drive in his home. He notes
that he denied knowledge of the presence of the blank credit cards in his home
and denied knowledge of the contents of the hard drives in his interview with
Detective Briones. He further emphasizes
the lack of direct evidence tying him to the fraudulent activity on Gonsalves’
and Buckalew’s account. We conclude,
however, that sufficient evidence supported the jury’s findings that he
obtained and used the personal identifying information of these two victims.
First, Azzara initially told Detective
Briones that the hard drives (which contained Gonsalves’ and Buckalew’s
information) belonged to him, before changing his story to deny that they were
his. The jury reasonably could have
believed his original statement to be the true version. Moreover, the jury was entitled to rely on
Azzara’s admissions to Deputy Mancinas at the time of his arrest that he had an
embosser, credit cards, and people’s identity profiles in his home, and that he
used the embosser to make credit cards.
Based on this evidence, the jury reasonably could find beyond a
reasonable doubt that Azzara obtained the personal identifying data on the hard
drive found in his home and that he was responsible for the unlawful use of
Gonsalves’ and Buckalew’s information.
As such, sufficient evidence supported his conviction for identity
theft.
II.
Azzara contends that the trial court
violated his constitutional right to the effective assistance of counsel when
it denied his request for a continuance on the first day of trial so that he
could retain private counsel.
A.
Azzara was originally charged on
November 29, 2010. At the preliminary
hearing held on June 3, 2011, appointed counsel Leonard Garber represented him.
On October 21, 2011, after several
continuances, the court ordered no further pretrial continuances. At the November 30, 2011 pretrial conference,
the court set the trial for January 10, 2012.
The trial was postponed several times.
On February 21, 2012, the case was called for jury trial, and the trial
court granted Azzara’s request to proceed in pro. per. and relieved Garber as
appointed counsel. Azzara completed an
Advisement and Waiver of Right to Counsel form in which he initialed section
3.G, which read: “I understand that no
continuance will be allowed without a showing of good cause, and that such
requests made just before trial will most likely be denied.†He also initialed next to Section 3.H, which
stated: “I understand that depending on
the stage of my case, if I ask to give up my pro. per. status and request
counsel to handle my case, the Court may deny this request and I may have to
proceed with trial without an attorney.â€
The court ordered a panel of 40 jurors for February 23, 2012.
On February 23, 2012, after the court
had ordered the jury panel brought to the courtroom for voir dire, Azzara stated: “I want to make one motion. I don’t know if it’s a motion really, but I
just wanted to – I met with an attorney yesterday, and if it please the court,
if it’s possible, I could get the money together. It might take maybe up to 30 days because I
know it’s a lot. No pun intended. But if it’s possible to do that, I will be
able to, you know, retain counsel and do it the right way and not be a fool.†The court denied the request for a
continuance.
The court proceeded to explain various
procedural points to Azzara and asked that the jurors be brought in, after
which the following colloquy took place:
“MR. AZZARA: Your Honor, is it – I need to retain counsel,
and I can explain the reason why that I let the other – that a state appointed
or what have you, why I let him go.
There were a couple problems there.
He was a great man, great attorney, very brilliant. But there were some evidentiary issues that
he wouldn’t bring in to evidence, and he kept telling me maybe somehow I could
bring them in.
“THE COURT: Mr. Azzara, I have 36 jurors now –
“MR. AZZARA: I understand,
“THE COURT: -- that have been used and called. I explained to you on the other occasion that
if you intended to relieve your attorney in this matter that you would have to
either be prepared to proceed without counsel and/or have counsel present to
start the trial. This case –
“MR. AZZARA: Okay.
I thought it was the opposite.
“THE COURT: -- as we’re clear, goes back well over a year
–
“MR. AZZARA: Yeah.
“THE COURT: -- in terms of its process in this
court. I do not intend to excuse the
jurors for purposes of these proceedings.
You have requested to represent yourself. You made that request at the airport
[courthouse], and coming in on what I would call the eleventh hour and advising
me that you would like me to burn 36 jurors in regard to this matter because
now you’ve decided that you need an attorney is not the case. Apparently Mr. Garber, [I’m] notified, is
available. He indicated he would be
ready to proceed. If you want Mr. Garber
to be called and come here to handle this matter as your attorney, I’ll notify
his office.
“MR. AZZARA: And then I can maybe get one after or – a
private attorney after that? Would that
be okay?
“THE COURT: We’re starting trial, sir. If you want me to call Mr. Garber’s office
and have him here . . .
“MR. AZZARA: I’m sorry.
I didn’t mean to – I didn’t know it was starting today. I thought we would have a few days to prepare
and get things, like, taken care of.
“THE COURT: Call the jurors in.
“MR. AZZARA: No, Your Honor. Your Honor, yes, please.
Yeah. Please.
“THE COURT: Please what?
“MR. AZZARA: I don’t know what to do. I want to hire Mr. Peter Knecht, but I have
to have until Monday to pay him. That’s
all you have to do. Please.
“THE COURT: Do you want me to contact Mr. Garber’s
office?
“MR. AZZARA: I’d like to hire Peter Knecht is what I’d
like to do.
“THE COURT: Mr. Knecht is not here right now.
“MR. AZZARA: I understand.
“THE COURT: Neither is Mr. Garber, but Mr. Garber’s
prepared to proceed he indicated. Do you
want Mr. Garber to be contacted and become your attorney?
“MR. AZZARA: I suppose so, Your Honor.
“THE COURT: What does that mean, sir?
“MR. AZZARA: I just means – I’d like – I don’t want to
waste anybody’s time. That’s all.
“THE COURT: Well, you’re wasting my time now, sir.
“MR. AZZARA: Well, no.
I just wanted to hire Mr. Peter Knecht, but it would have to be like
until next week and then it would be no problem. Monday, Tuesday. No problem.
“THE COURT: It’s not going to be next week, sir.
“MR. AZZARA: I don’t –
“THE COURT: Do you want Mr. Garber to come here and be
your lawyer?
“MR. AZZARA: Yes, I do.
I guess so, Your Honor. Yes,
please.
“THE COURT: Would you call Mr. Garber’s office and find
out if he’s available, please. . . .
“THE COURT: Mr. Azzara, so there’s no confusion, you want
Mr. Garber to be your lawyer with the understanding that you’re either going to
proceed without counsel and/or proceed with Mr. Garber.
“MR. AZZARA: Yeah.
I guess, Your Honor. . . .
“THE COURT: . . .
Based on the conversations with the defendant as a self-represented
litigant, he is making a request, although not timely, not entirely
unreasonable based on the circumstances.
I’ve contacted counsel, Mr. Garber, who has prepared this case over the
last year and a half. He will be
available tomorrow morning at 10:30. I
intend to bring the jurors in. I intend
to swear in the panel. I intend to
advise the jurors that Mr. Azzara’s counsel had an emergency. I will then order them back tomorrow morning
at 10:30 to proceed with jury selection in this matter. Ms. Avedissian, does that cause any problems
for you right now?
“[PROSECUTOR]: Not at this time; however, we’re hoping to
select the jury tomorrow so I could have a witness who’s coming from out of
town.
“THE COURT: I will make every effort to accomplish that,
and we will discuss that with counsel when he’s here tomorrow. I don’t want to lose the jurors, and this
case is going to proceed.â€
That afternoon, Mr. Garber appeared on
behalf of Azzara during voir dire. The
court stated, “I want to thank you for your efforts to be here this
afternoon. Mr. Azzara has made a request
of the court to withdraw his request as a self-represented litigant, and
although you might not be his first choice, Mr. Garber, he is insistent that he
wants counsel to represent him in this matter.
You’ve advised the court that after these number of months, actually year
and a half, that you would be prepared to proceed.†Garber resumed his representation of Azzara.
B.
The trial court’s decision to deny a
defendant’s request for a continuance to seek private counsel is reviewed for
abuse of discretion. (
1359, 1367; see People v. Mungia
(2008) 44 Cal.4th 1101, 1118.) However,
limitations on the right to continuances
so that a defendant may hire private counsel of his own choosing are carefully
circumscribed. (People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).) Although “[a]
continuance may be denied if the accused is ‘unjustifiably dilatory’ in
obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the
time of trial,’†“trial courts should accommodate such requests – when they are
linked to an assertion of the right to retained counsel – ‘to the fullest
extent consistent with effective judicial administration.’ [Citation.]â€
(Id. at pp. 790-791.) “In deciding whether the denial of a
continuance was so arbitrary as to violate due process, the reviewing court
looks to the circumstances of each case, ‘“particularly in the reasons
presented to the trial judge at the time the request [was] denied.â€â€™ [Citation.]â€
(Id. at p. 791.)
In Courts,
the court held that the trial court abused its discretion in denying the
defendant’s request for a continuance so he could bring on retained counsel for
trial. (Courts, supra, 37 Cal.3d at pp. 795-796.) The record showed that the defendant “engaged
in a good faith, diligent effort to obtain the substitution of counsel
including contacting his desired counsel two months before the trial date,
raising the funds soon afterwards and establishing a lawyer-client
relationship, and informing the court of his efforts well in advance of trial
and making a motion for a continuance more than a week before trial. (Id.
at p. 791.) The court noted that
“[t]hese facts are to be sharply contrasted with cases which have upheld the
denial of a continuance on the ground that participation by a particular
private attorney was still quite speculative at the time the motion for
continuance was made,†or cases where the continuance request was premised on
the defendant’s representation that he would eventually be able to hire private
counsel. (Id. at p. 791, fn. 3.)
Further, the court contrasted the facts before it with “day-of-trialâ€
requests, in which courts are justified in finding “the lateness of the
continuance request to be a significant factor which justified a denial where
there were no compelling circumstances to the contrary.†(Id. at
p. 792, fn. 4.)
The court also noted that “there were
no circumstances which warranted the limitation of appellant’s right to counsel
based on considerations of judicial efficiency.
[Citations.] [¶] The record fails to show that a continuance
would have significantly inconvenienced the court or the parties. [Citation.]
. . . No mention of inconvenience
to jurors . . . was ever made.†(
Azzara’s request on the first day of
trial for a 30-day continuance, and then later his request to continue the case
into the next week, was a far cry from the request to continue to hire private
counsel by the defendant in Courts. Courts
emphasized that a “day-of-trial†request for a continuance like Azzara’s
constitutes a significant factor justifying denial of the continuance absent a
compelling justification (Courts, supra,
37 Cal.3d at p. 792, fn. 4), yet Azzara offered no explanation for the lateness
of his request. Moreover, as of the
first day of trial, he admitted he had not yet gathered the funds for the
retainer, and thus “participation by a particular private attorney was still
quite speculative.†(
others, the trial court in the instant case made quite clear that the 36
prospective jurors who were already on their way to the courtroom for voir dire
would be inconvenienced by the late request for a continuance. Further, the record reveals that one of the
prosecution’s witness was traveling from out of town to testify and would have
been inconvenienced by a delay of the trial.
The trial court therefore had ample justification based on the
circumstances in Azzara’s case to deny his last-minute request for a
continuance.
III.
Azzara contends that the trial court
erred in failing to hold a Marsden
hearing on the third day of trial, after he expressed dissatisfaction with his
appointed counsel.
A.
On the final day of trial, Azzara
indicated to the court that he had a disagreement with Garber over a witness
whom he wanted to call in his defense.
He stated that he gave the address of the witness to Garber several days
before, but he had not been able to provide a phone number because his bail had
been revoked and his cell phone, which contained the phone number, was taken
away from him.
Garber indicated that he had not been
able to go to the address Azzara provided for the witness because he only
received it once trial had begun and in any event he disagreed with Azzara
about the “efficacy of his testimony.â€
Azzara indicated that he had brought the witness, Craig Neilson, with
him to court over a year earlier, and that the witness’s testimony was
important to his defense. He indicated
that he had planned to pick up Neilson and bring him to the trial, but when his
bail was revoked he could no longer do so.
The court indicated that it would call
the witness if he were present, but since the witness was not available and
Azzara was not introducing any other evidence, the court had no choice but to
proceed to instruct the jury. Over
Azzara’s objection that he was “getting railroaded,†the court then instructed
the jury.
B.
“The governing legal principles
[derived from Marsden, supra] are
well settled. ‘Under the Sixth Amendment
right to assistance of counsel, “‘“[a]
defendant is entitled to [substitute another appointed attorney] if the record
clearly shows that the first appointed attorney is not providing adequate
representation [citation] or that defendant and counsel have become embroiled
in such an irreconcilable conflict that ineffective representation is likely to
result.â€â€™â€ [Citation.] Furthermore, “‘“[w]hen a defendant seeks to
discharge appointed counsel and substitute another attorney, and asserts
inadequate representation, the trial court must permit the defendant to explain
the basis of his contention and to relate specific instances of the attorney’s
inadequate performance.â€â€™â€â€™
[Citations.]†(
95; see People v. Smith (2003) 30
Cal.4th 581, 604; People v. Hart
(1999) 20 Cal.4th 546, 603.)
“[A] trial court’s duty to permit a
defendant to state his reasons for dissatisfaction with his attorney arises
when the defendant in some manner moves to discharge his current counsel. The mere fact that there appears to be a
difference of opinion between a defendant and his attorney over trial tactics
does not place a court under a duty to hold a Marsden hearing.†(
281, fn. omitted (Lucky).) In People
v. Sanchez (2011) 53 Cal.4th 80, the Supreme Court reiterated that a
“there is ‘at least some clear indication by defendant,’ either personally or
through his current counsel, that defendant ‘wants a substitute
attorney.’†(Id. at p. 90; see Lucky,
supra, 45 Cal.3d at p. 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.â€].)
In this case, during the colloquy with
the court during trial, although Azzara complained that Garber had not tracked
down a witness, he never gave any indication that he wanted to substitute
counsel. He complained that he was
“getting railroaded†by the court, which would not delay the completion of
trial to allow time for the witness to be located, but at no point did Azzara
suggest that he wanted to discharge Garber and get a new attorney appointed to
defend him. Because he gave no clear
indication that he wanted a substitute attorney, the trial court did not err in
failing to hold a Marsden hearing.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All
subsequent undesignated references to code sections are to the California Penal
Code.
