P. v. Goldsberry

Filed 8/12/08 P. v. Goldsberry CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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After a one-man crime wave in January 2007, a jury found defendant Robert Earnest Goldsberry guilty of criminal threats (count 1); misdemeanor assault (count 3); two counts of felony vandalism causing $400 or more of damage (counts 6 and 8); two counts of misdemeanor vandalism (counts 7 and 12); and misdemeanor dependent adult abuse (count 11). The court sentenced defendant to three years four months in prison.

On appeal, defendant contends: 1) the court should have granted his continuance motion to obtain private counsel of his choosing; and 2) the denial of his motion to sever the first three counts was an abuse of discretion. We shall affirm.

BACKGROUND

The Barnec Incidents (Counts 1-3)

Lavina Barnec^[1]is defendants girlfriend and used to live with him. She has two sons, Justin Moore and Matthew Barnec. Matthew was formerly the fiance of Kimberly Berna.

In January 2007, defendant had broken up with Lavina and was living on his employers property. Jeff Reed, a deputy with the San Joaquin County Sheriffs Department, was dispatched to Lavinas house around 5:00 p.m. on January 17. Lavina told him about an incident with defendant which occurred earlier in the day.

On January 20, 2007, Berna was with Matthew at the house they shared when they got an urgent call from Lavina and they went to her house. Arriving, Berna saw Lavina crying, with a broken television lying in the yard between the fence and her house. After talking to Lavina, Matthew and Berna rode a bicycle home.

On their way home, a cream-colored Toyota pickup pulled up and defendant got out of the passenger seat holding a baseball bat. He said to Matthew, I heard you were looking for me, boy and I got something for -- for you and your mom, and your brother, too before swinging the bat at Matthew, just missing. Defendant got back in the truck and drove off as Matthew threw a bottle at it.

Around 8:00 p.m. on January 20, Deputy Reed was dispatched to Lavinas house in response to her call that defendant had been threatening her. A very scared and nervous Lavina told the deputy defendant had made calls earlier in the day threatening to get her and shoot both of her sons, calling her a Scum-sucking bitch.

Deputy Reed arrested defendant at a location provided by Lavina. A tan-colored Toyota with a baseball bat in the bed was nearby. Defendant gave a Miranda^[2]waiver and told the deputy Matthew had stolen items from defendants employer, causing him to tell Matthew not to come on defendants property or he would get shot. Defendant admitted having a baseball bat in his hands when talking to Matthew, but denied swinging it. He also denied threatening Matthew or Lavina.

At trial, Lavina denied the truth of her statement to Deputy Reed, saying it reflected her anger at defendant for leaving her. She initially denied calling 911 on the night of January 20, but later admitted doing so after a tape of the call was played to the jury.

Lavina told the 911 operator her ex-boyfriend was calling and threatening me. Lavina said that right after he called she heard a big ol boom outside the house and Robbie Goldsberry was outside her house in her brothers truck. She told the operator she wanted a patrol car sent over and Robbie was just outside my bedroom window and threw a T.V. over.

Defendant was charged with making criminal threats against Lavina (count 1) and Matthew (count 2), and assault with a deadly weapon against Matthew (count 3). He was convicted on count 1, acquitted on count 2, and convicted of the lesser included offense of assault on count 3.

The Scace Incidents (Counts 6, 7, and 11)

Harold Scace knew defendant for about 12 years, first meeting him at a class he taught at the San Joaquin County Jail. Defendant married Scaces sister-in-law Daisy, and the couple lived with Scace until their separation and divorce, when defendant left Scaces property.

After the divorce, around April or June 2003, defendant was seen getting out of his truck and walking across Scaces side lawn while carrying a tire iron. Scaces son John was outside and saw his friend Sam call for defendant to stop. Defendant ignored the request and Sam tried to intercede. The 400 pound defendant knocked Sam down with the tire iron and then got on top of him.

Scace came out and tried to get defendant off of Sam. This failed, so Scace struck defendant three times with an aluminum pipe, causing defendant to end the attack. The incident led defendant to file a lawsuit against Scace, which had not been resolved by the time of defendants trial. Scace has a serious heart condition which defendant knew about at the time of the attack on Sam.

After the incident, Scace started seeing posters around town making libelous statements about Daisy and him. Scace conducted Bible lessons on the radio, and defendant made many attempts to have the station manager take him off the air.

Around midnight one day in May 2006, Scace and his son woke up to a loud crash in the front of the house. They found two large trash bags full of paint and rocks, one by the house and another on top of one of their trucks. The bag on the truck split open, pouring paint over the truck.

On January 18, 2007, a person entered Scaces property and poured paint over the trucks on Scaces property. Scace had a home security system, and both he and his son identified defendant as the perpetrator from the surveillance video.

Defendants sister Carol Holland remained close to his ex-wife Daisy. In January 2007, she received a phone message from defendant in which he said, You F-ing Christians have highly disrespected me now, a reference to Holland, her mother, Daisy, and Scace. He continued, Get ready, cause you have bought your F-ing ticket. Holland was concerned by the rage and threatening tone in defendants message.

The message was left on a Tuesday. On either the next or the following Friday, Holland found paint had been poured all over her truck. Holland erased defendants message before the trial.

Defendant was charged with vandalism against Scace (count 6), misdemeanor vandalism against a food bank run by Scace (count 7),^[3]and dependent adult abuse against Scace (count 11). Defendant was convicted on counts 6 and 7, and convicted of the lesser included offense of misdemeanor dependent adult abuse in count 11.

The Julian-Wilson Incidents (Counts 4, 8-10, 12)

Seventy-three-year-old Ewell Julian was once married to defendants aunt and has known him for around 40 years. Julian allowed defendant to live on his property after defendants release from jail in 2006. In lieu of rent, defendant permitted Julian to take his guns which had been seized by San Joaquin County. Julian gave the guns to his daughter, Ann Wilson. Defendant was present during the final transaction and explicitly agreed that Ann Wilson would become the sole owner of the guns.

Defendant lived with Julian for about three months before he was arrested and incarcerated again. While defendant was in jail, Julian gave defendants clothes to Goodwill, allowed defendants friends to take his tools, and sold defendants car, keeping the $1,500 proceeds, which Julian claimed was compensation for defendant having stolen a generator from him 10 years earlier.

After getting out of jail, defendant was not happy when Julian told him what he had done with defendants possessions. He started to make calls to Julian threatening to kill him. The calls were so frequent and so disturbing that after about a month, Julian shut off his phone and bought a cellular phone.

On January 19, 2007, Julian woke up and found paint splashed all over his house. Around 9:00 p.m. that night, Julian went outside because his dog was barking, and defendant drove up in a silver four-door Honda and exclaimed, Motherfucker, youre -- youre dead, Im gonna kill ya.

During 2005 and 2006 there were various incidents in which defendant threatened to kill the Wilsons. At one point, two large river rocks were thrown through their front windows. About two weeks after that, defendant called and taunted the Wilsons about the broken windows.

On the morning of January 19, 2007, Ann and Bill Wilson discovered their house had been splattered with the same color paint which was used to vandalize Julians house. They eventually confronted defendant at his work, arguing with him until defendants employer asked the Wilsons to leave. The Wilsons identified defendant as the vandal from a home security surveillance video of the incident.

On the evening of January 19, the Wilsons motion sensor went off. Ann looked out the window and saw the defendant in a silver Honda. Defendant, who was in the passenger seat while a woman drove, exclaimed that he was going to kill them.

Defendant was charged with misdemeanor elder abuse against Julian (count 4);^[4]making criminal threats to Julian (count 5), William Wilson (count 9), and William and Ann Wilson (count 10); and vandalism against William Wilson (count 8) and Julian (count 12). Defendant was acquitted on counts 4, 5, 9, and 10, and convicted on counts 8 and 12.

DISCUSSION

I

Denial Of Continuance

On April 11, 2007, during consideration of in limine motions, defendants public defender informed the court his client wanted to make a Marsden^[5]motion.

At the Marsden hearing, defendant informed the court he had retained private counsel because he felt the public defender was overtaxed. Defendant told the court his private counsels name was Michael Small, who would be coming to court later in the day.

The public defender said defendant had mentioned something about a continuance. The court determined this was not a Marsden motion and opened the hearing to the People.

Defense counsel told the court he had not heard of defendants intention to retain private counsel until this morning. Defendant said to the public defender he had spoken with his boss and that his boss had retained somebody or was going to retain somebody, I dont know anything more than that.

Defendant affirmed he sought a continuance to allow new counsel to prepare for the jury trial. The People objected, arguing lack of notice and characterizing this as a delaying tactic.

The public defender explained defendant had not retained counsel until now because his employer had been out of town until recently and therefore was unavailable to speak with defendant. Defendant also told the court he spoke with his employer, who had agreed to pay the retainer.

After the People raised more objections, the public defender noted defendant wasnt specific with me, as far as who was going to be retained. According to defendant, private counsel had not visited him at the jail, but the two had conversations over the phone. Defendant felt the public defender was overwhelmed and many of these issues would have already been squashed if there was better investigation. Defendant also told the court his employer was ready to pay the retainer as soon as Smalls office opened.

The court denied the continuance, finding the request, made on the very eve of trial, was untimely.

Defendant argues the denial of his continuance motion was an abuse of discretion that violated his due process right to counsel of his choosing. We disagree.

The right to counsel includes the right to retain or discharge a particular attorney. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) This rule also applies to a request to replace appointed counsel with privately retained counsel. (People v. Courts (1985) 37 Cal.3d 784, 790.)

We review the denial of a request for continuance for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 318.) In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. (People v. Frye (1998) 18 Cal.4th 894, 1013.)

As the trial court noted, defendant waited until the eve of trial to make his request. The trial commenced with jury selection two days later. Although defendant had not waived time before his motion, granting defendants motion still would have substantially delayed a trial just as it was ready to commence.

Even more important to our analysis is the unsubstantiated nature of defendants claim to have retained private counsel. Defendant supplied the court with the name of a person who might be a criminal defense attorney willing to represent defendant, but he failed to produce the attorney, any other identifying information for the attorney or any representation from his alleged new counsel or defendants employer indicating that private counsel was in the process of being retained to represent defendant. Although defendant declared he had phone conversations with the prospective new counsel, he did not inform the public defender of this development until the very morning of the continuance motion.

Courts, the case upon which defendant primarily relies, is easily distinguished. The defendant in Courts entered into discussions with private counsel over a month before the trial was scheduled to start on October 26. (People v. Courts, supra, 37 Cal.3d at p. 787.) He asked the court on October 18 for a continuance to conclude the financial arrangements, which had been delayed because private counsel was on vacation. (Id. at pp. 787-788.) The court denied the motion as untimely, but defendant paid the retainer on October 21, and counsel agreed to take the case if the trial was continued. (Id. at p. 788.) Both private counsel and the public defender tried to calendar a continuance motion but were rebuffed by the trial court. (Ibid.) On the day of the trial, a disqualification motion was made and the case brought before a new judge where the public defender renewed the continuance motion. (Ibid.) Private counsel testified at the hearing that he was willing to represent the defendant, but the seriousness of the charges required a continuance. (Ibid.) The continuance was denied by the new judge. (Id. at p. 789.)

The compelling evidence of an existing retainer agreement and defendants efforts to expeditiously conclude the arrangement in Courts stands in sharp contrast to defendants ephemeral claim. The denial of the continuance motion did not deprive defendant of his right to due process.

II

The Severance Motion

Defendant made a pretrial motion to sever the counts related to Lavina and Matthew, counts 1 through 3, from the remaining counts. Admitting that counts 1 through 3 ha[d] a commonality with charges . . . in 4 through 12, defense counsel argued severance was justified as prior uncharged misconduct evidence admissible for counts 4 through 12 but not for counts 1 through 3, and the first three counts were weaker than the remaining charges. The court denied the motion, finding the counts shared common characteristics, and that the first three counts did not involve a weak case being bolstered by the remaining counts.

Defendant contends the trial court abused its discretion in denying his motion to sever. We disagree.

Two or more offenses of the same class, or connected in their commission, may be charged and tried together, but the trial court may sever counts in the interest of justice. ([Pen. Code,]  954.) When exercising its discretion, the court must balance the potential prejudice of joinder against the states strong interest in the efficiency of a joint trial. [Citation.] (People v. Arias (1996) 13 Cal.4th 92, 126.)

Joinder is generally proper when the offenses would be cross-admissible in separate trials, since an inference of prejudice is thus dispelled. [Citations.] However, joinder is often permissible even when cross-admissibility is not present. Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. [Citation.] In determining potential prejudice from the joint trial of non-cross-admissible charges, the court should evaluate whether (1) certain of the charges are unduly inflammatory, (2) a weak case will be unfairly bolstered by its joinder with other charges, and (3) any of the charges carries the death penalty. [Citations.] (People v. Arias, supra, 13 Cal.4th at pp. 126-127.)

To demonstrate that a denial of severance was reversible error, defendant must clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried. [Citations.] We examine a pretrial severance ruling on the record then before the court. [Citation.] Even if the ruling was correct when made, we must reverse if defendant shows that joinder actually resulted in gross unfairness, amounting to a denial of due process. [Citation.] (People v. Arias, supra, 13 Cal.4th at p. 127.)

Defendant implicitly admits the assault claims (counts 1 through 3) were of the same class as the elder abuse and harassment counts in the remaining charges, but asserts joinder was improper because they are of a different class from the vandalism counts. In People v. Koontz (2002) 27 Cal.4th 1041, defendant was charged with a petty theft stemming from one incident, and robbery, murder, kidnapping for the purpose of robbery, and vehicle taking stemming from a separate incident. (Id. at pp. 1053-1054.) The defendant asserted the court should have granted his motion to sever the petty theft charge as it was of a different class than the murder charge. (Id. at pp. 1074-1075.) The Supreme Court rejected the claim because petty theft was of the same class as the robbery and vehicle taking charges in the other incident. (Id. at p. 1075.) Applying Koontz, we conclude that joinder was proper as the first three counts were of the same class as some of the remaining charges.

Defendant argues that even if joinder was proper, the counts should have been severed as the evidence in counts 4 through 12 inflamed the jury and strengthened the much weaker prosecution case in counts 1 through 3.

We reject the characterization of the prosecutions case for the first three counts being significantly weaker than the remaining charges. The prosecutions case in the first three counts had problems -- one victim, Matthew did not testify, while the other victim, his mother Lavina, testified that defendant had not committed any crimes against her. However, Lavinas testimony was flatly contradicted by her interview with the police, the observations of Matthews ex-fiance Berna, and by the tape of Lavinas 911 call, all of which incriminated defendant. Berna also provided the only neutral eyewitness testimony to any of the charges. Berna had no history of disputes with defendant, and having broken up with Matthew, no substantial remaining ties to the Barnecs. Her eyewitness testimony of defendants assault on Matthew with a bat or stick was also corroborated by the presence of a baseball bat in defendants truck when he was arrested and defendants admission that he had a baseball bat during his confrontation with Matthew.

While the vandalism charges against Scace and the Wilsons had the advantage of video evidence showing defendant committed the crimes, this did not prejudice defendant in the first three counts. If the jury was susceptible to being influenced by the strength of the vandalism charges, then it is logical to expect the influence to be first felt in the remaining charges involving the same victims. We find it telling that while the jury found defendant guilty on one of the two criminal threats charges on the first two counts, it acquitted defendant of the criminal threats charges in the remaining charges -- counts 5, 9, and 10 -- even though the victims in these charges, the Wilsons and Julian, were also the victims in the vandalism counts.

It is clear to us that the jury was able to disregard the strong evidence of vandalism when considering the other charges. Likewise, we find defendant was not prejudiced by the prior misconduct evidence submitted for counts 4 through 12. Like the vandalism evidence, the evidence of prior threats was insufficient to prevent acquittals in the criminal threats charges in counts 5, 9, and 10. The evidence of prior elder or dependent adult abuse could only support misdemeanor dependent adult abuse in count 12 and could not prevent an acquittal on the elder abuse charge in count 4. Nor is the evidence -- primarily acts of vandalism, telephone threats, and the assault on Sam -- inherently prejudicial when examined in the context of the evidence in counts 1 through 3. We therefore conclude the uncharged misconduct evidence did not prejudice defendant regarding the remaining charges.

The record shows the jury was able to consider each charge individually. Defendant cannot sustain his claim of prejudice and we conclude the courts denial of his severance motion was not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

NICHOLSON , J.

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^[1] Not out of disrespect, but for the sake of simplicity and clarity, we shall refer to the Barnecs by their first names.

^[2]Miranda v.Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694].

^[3] Defendant was initially charged with felony vandalism in count 7, but the charge was amended to misdemeanor vandalism at the conclusion of the evidentiary stage of the trial.

^[4] The original charge of dependant elder abuse in count 4 was amended to misdemeanor elder abuse after the case was submitted to the jury.

^[5]People v. Marsden (1970) 2 Cal.3d 118.