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P. v. Lakota

P. v. Lakota

P. v. Lakota

Filed 1/30/07 P. v. Lakota CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





Plaintiff and Respondent,



Defendant and Appellant.


(Super. Ct. No. CM017766)

Defendant Mathew Lakota appeals from the judgment and sentence after the trial court found him guilty of four counts of misdemeanor attempted petty theft (Pen. Code, 664/488; Cts. 1, 6, 7, 8),[1]one count of receiving stolen property ( 496, subd. (a); Ct. 2), and two counts of attempting to obtain money by falsely representing himself as a public officer. ( 664/146a, subd. (b); Cts. 9 and 10.)[2] He was placed on formal probation for three years and ordered to serve 180 days in jail and perform 400 hours of community service.

On appeal, he contends the evidence is insufficient to establish he impersonated a public officer, counsels ineffective assistance caused him to reject a proposed plea bargain, and the trial court abused its discretion by denying his motion to reduce the felony convictions to misdemeanors and denying his request to change from self-representation to representation by appointed counsel.

We find no error and shall affirm the judgment and sentence.


A. The Prosecutions Case

Beginning in 2002 in Butte County, defendant posted notices on motor vehicles parked in spaces designated for disabled persons. The notices appeared to be parking citations.

The notices were modeled on parking tickets issued by the Oroville Police Department. Each notice was entitled Notice of Parking Violation and bore a handwritten Badge/I.D. No. It stated it was issued by the California State Parking Enforcement, was addressed to the [r]egistered owner, driver or lessee, advised the recipient [y]ou have been charged with a violation of California laws regulating the parking of motor vehicles in accessible parking spaces, and directed the recipient to pay a civil penalty of $280 within 21 days or suffer further penalty and civil actions being brought against you. Payment was to be made to Cal State Parking Enforcement and mailed to a Sacramento post office box defendant had opened under the name of Cal State Parking. The notice also indicated that the penalty could be contested by calling the listed toll free number and requesting an administrative investigation.

Donda Mraz received one such notice after parking her vehicle in a disabled parking space and posting an expired temporary parking placard. She attempted to call the specified toll free number but got no response, so she mailed a check for $280 to the designated post office box together with a letter explaining that her temporary placard had expired and she was unable to apply for a permanent placard because she had been in and out of the hospital. She paid the fine because she was intimidated by the notice and didnt want to get into any trouble.

James Hallen also received one of the notices issued by defendant when he parked his motorcycle near a handicap space. He mailed a check to Cal State Parking because he believed the notice carried official force and effect.

On July 25, 2002, an employee of Larry Geweke Ford-Kia, parked a company vehicle on the side of the dealership and was ticketed with one of defendants citations. Jeff Ercolini, the general sales manager, contacted the police and other agencies to determine whether the citation was valid. He then called the toll free number on the citation and spoke to defendant who identified himself as Mathew Lakota and as a person that worked for the State Department of Handicaps Parking Enforcement. Defendant told Ercolini all this is for real . . . . Ercolini felt kind of uneasy about paying the ticket but agreed to pay it because defendant led him to believe it would help enforce the handicap laws and would aid handicapped people. After some negotiation, defendant agreed to cut the fine in half if Ercolini mailed in the money, so Ercolini authorized payment of a $200 check from the Geweke Ford-Kia accounts payable department to be sent to Cal State Parking.[3]

On July 25, 2002, defendant placed a citation on a truck owned by Advanced Equipment Systems (AES). The truck was parked on the backside of the companys warehouse in an area that had been reserved for handicap parking at one time but had not been used for that purpose in over three years. The markings for the defunct handicap parking spaces were worn out and faded and were not conveniently located for someone with a disability. The citation was given to Linda Buckingham, the chief financial officer for handling. Initially, Buckingham believed the notice was genuine and left a message at the toll free number. Defendant returned her call and identified himself as California State Parking, whereupon Buckingham explained that her employer had provided handicap parking opposite the front door but the space where the ticketed vehicle was parked was not currently designated for disabled parking. Defendant responded by stating [w]ell, were both half right. So, why dont we drop that down and you just send me $50. Buckingham considered this an odd answer from a bureaucracy and decided to take the ticket to the police department to determine its legitimacy.[4]

The same day, Stacie Boone parked her vehicle in an area used for employee parking. She later found one of defendants notices of parking violations posted on the windshield of her vehicle. Although there was a handicap parking sign on the wall, the parking space did not have handicapped markings on the pavement and had not been used for handicap parking in four years because the company provided disabled parking in another location, which was accessible to the office entrance. After receiving the citation, Boone called the toll free number to arrange for an appeal. Defendant answered the phone and told her he would reduce the fine if she agreed to pay it. When Boone said she thought the citation should be dismissed, defendant said [w]ell, if youre going to act like that we can just bump it back up to the $280 fine. After this conversation, Boone attempted to verify the legitimacy of Cal State Parking and took the citation to the Chico Police Department.[5]

Defendant also ticketed Craig Pollock on July 25, 2002, after Pollock parked his truck in a handicapped parking space in front of his place of employment. Pollock was suspicious of the citation because it had several grammatical errors and did not have a city or state emblem. He spoke to someone at his work who had received a similar citation and together they called the Chico Police Department and the Highway Patrol to determine if they had issued the ticket. After receiving a negative response, Pollock decided to investigate the matter further and called the phone number on the back of the citation. He reached a recording, left a message, and then searched the internet for Cal State Parking but found no references. However, because the citation listed a badge number and some civil codes and he had indeed parked in a disabled parking spot, he felt he could not just ignore the citation. Defendant returned his telephone call the following day and asked whether he was going to contest the ticket and when Pollock said he was, defendant said [w]ell you were parked in that spot. Pollock responded by asking whether the caller was badge number 2424 and after a long pause, defendant replied no, which caused Pollock to think he might be speaking with the person who wrote the citation. During the conversation, defendant suggested that this ticket could go away for $200. The following morning, Pollock gave his citation to the Chico Police Department.[6]

On August 19, 2002, defendant went to the Butte Community Bank in Oroville to open an account for Cal State Parking and deposited three checks into the account. The checks had been issued by James Hallen, Larry Geweke Ford-Kia, and Donda Mraz.[7]

Meanwhile, the driver of a furniture delivery van parked the van in a handicapped space in front of the bank and placed cones nearby to indicate he was making a delivery. Seeing this, defendant asked the account representative assisting him whether she thought the driver should get a ticket, and then wrote out a citation and slapped it on the window of the van.[8] Later that morning, the driver brought the citation into the bank. Laura Beibers, the bank manager, made some inquiries about the matter and then called defendant to advise him the bank would be closing his account and returning the checks he had deposited because bank officials suspected his activities might not be legal. Defendant told Beibers the driver who parked in the disabled spot was a jerk, threatened to sue the bank, and concluded the conversation by telling Beibers up yours. Beibers reported the matter to the police because of the threatening nature of the call. Defendant returned to the bank later that day to retrieve the three checks.

Shortly afterwards, Oroville Police Officer Vanessa Purdy contacted defendant while he was sitting in his vehicle outside the bank. When she asked him about the citation placed on the van, he told her it had been parked in a handicap zone and he had the right to issue the citation. Defendant handed Purdy a blank copy of a citation and when she asked him whether the badge number was his, he said yes but stated it was an identification number, not a badge number and it belonged to him.

Inside defendants vehicle officers found three checks in a Butte Community Bank envelope with Mathew Lakota written on the front, a ticket book, a metal box containing parking citations, handcuffs, pepper spray, a flashlight, a scanner, a camera, measuring tapes, a locked metal briefcase containing a polo shirt with California State Parking emblazoned on the front and back, envelopes stamped California State Parking, and business checks printed for Cal State Parking.

In a tape recorded interview with Officer Purdy, defendant admitted writing the citations and made up the identification number printed on them. He explained that he had opened a bank account under a fictitious business name so he could cash the checks on behalf of the Disabled Access Legal Defense, of which he was a member. He informed her that he had the right to issue the citations because they were civil in nature and that he had spoken to numerous law enforcement agencies about this matter, but no one had ever told him he was breaking the law.

B. Defense

Defendant took the stand and admitted placing the notices on three vehicles in the City of Chico on July 25, 2002. He testified that he issued the notices in frustration because local government agencies were failing to enforce the handicap parking laws. He contacted the City of Oroville, the City of Chico, and the Highway Patrol in Oroville and requested that they issue citations for violations of Vehicle Code section 22507.8, but the agencies all refused his request. On January 11, 2001, defendant asked Sergeant Dye to make a citizens arrest of the driver of a disabled veterans van parked in a handicap space without a handicap placard displayed. When Dye refused, defendant complained to the police department and was told by then Chief Mike Efford that Dye could not make a citizens arrest for a parking violation.

After researching the law, defendant concluded it was not unlawful for him to collect payment from persons violating the handicap parking law (Veh. Code, 22507.8) in exchange for the promise he would not bring a civil action to collect monetary damages from such persons. He reasoned that people unlawfully parked in handicapped spaces were violating the Unruh Civil Rights Act (Civ. Code, 54.3) and as a disabled person, he had standing to enforce the violation.



Falsely Representing Himself to be a Public Officer

Defendant challenges the sufficiency of the evidence to support his convictions for impersonating a public officer under section 146a. He argues that section 146a, subdivision (b)(hereafter section 146a) only applies to a state public officer. He also argues the evidence fails to show that a person with authority to issue parking citations is a public officer or that the recipients of the citations believed he was the issuing authority. Respondent contends section 146a does not require proof the public officer is a state officer, an issuing officer is a public officer, and there is substantial evidence defendant impersonated a public officer.

We agree with respondent that section 146a does not require proof defendant falsely represented himself to be a state public officer. We also find there is substantial evidence to establish defendant falsely represented himself to be a public officer within the meaning of section 146a.

A. Public Officer

Defendant was convicted of attempting to obtain money by falsely representing himself to be a public officer. ( 664/146a, subd. (b).) Section 146a makes punishable [a]ny person who falsely represents himself or herself to be a public officer, investigator, or inspector in any state department and who, in that assumed character, does any of the following . . . [] . . . intimidates any person . . . . [] [or] [o]btains money, property, or other thing of value. (Italics added.)

Defendant argues the italicized phrase in any state department modifies the three preceding terms public officer, investigator, or inspector. This claim was rejected by the court in People v. Gonzales (2003) 114 Cal.App.4th 560 (Gonzales), and we also reject it.

The defendant in Gonzales, supra, was convicted of two counts of impersonating a public officer under section 146a. (114 Cal.App.4th at pp. 563-565.) The evidence established that as to the first incident, defendant and his accomplice approached a stranded motorist and in a very polite voice, the accomplice asked the victim for identification, grabbed the victims wallet, struck him, and then he and defendant fled the scene with the wallet. As to the second incident, the defendant and an accomplice approached another stranded motorist and told him they were undercover cops, the accomplice asked for the motorists wallet, removed two credit cards from it, and then returned the wallet without the credit cards. On appeal, the defendant claimed the People failed to prove he impersonated a state public officer. (Id. at p. 566.)

The court found that section 146a was susceptible to both interpretations because the Legislature failed to insert a comma and the word or after the term public officer. Attributing this omission to a drafting error, the court looked to the rules of statutory construction and the Legislatures intent and concluded that in any state department does not modify the term public officer. (Gonzales, supra, 14 Cal.App.4th at p. 569.) The court applied the last antecedent rule, which holds that qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote. [Citations.] [Citation.] The court concluded that under that rule, the phrase in any state department would not modify the term public officer. (Id. at pp. 567-568.)

The court also looked to the related statutes and found the defendants construction would conflict with the use of the term public officer in those statutes, which all apply to any public officer. (Gonzales, supra, 114 Cal.App.4th at p. 567; see 145, 146, 148, subd. (a), 149.) Turning to the legislative history, the court noted that state department did not modify public officer in 1929 when the statute was originally enacted, nor did it modify that term in any subsequent amendment. In 1929, the section prohibited only impersonation of a public officer. (Stats. 1929, ch. 211, 1, p. 377.)[9](114 Cal.App.4th at pp. 568-569.) In 1931, the statute was amended to apply to the impersonation of a public officer, or investigator, inspector, deputy or clerk in any state department . . . . (Stats. 1931, ch. 680, 1, p. 1420, italics added.)[10] The court in Gonzales reasoned that by placing a comma and using the disjunctive or after the term public officer, the Legislature evinced its intent to provide alternative categories, namely public officers or the other four categories, which it found were modified by the phrase in any state department. (114 Cal.App.4th at pp. 568-569.)

The Gonzales court also noted that the most recent amendment in 1993 divided section 146a into two separate crimes. Subdivision (a) makes it a misdemeanor to falsely represent a deputy or clerk in any state department. Subdivision (b), the provision at issue herein, makes it a wobbler punishable either as a misdemeanor or a felony to falsely represent a public officer, investigator, or inspector in any state department . . . . The court found there is nothing in the history to suggest the Legislature intended to alter the scope of the term public officer by limiting it to a state public officer. Rather, the history indicates the Legislatures intent was to increase the penalty for impersonating a public officer because of its concern about the numerous cases where serious offenses were perpetrated on the public by individuals impersonating peace officers. (114 Cal.App.4th at p. 569.) The court concluded that [t]o construe the amendment as limiting the term public officer to a public officer . . . in any state department would defeat the Legislatures intent. (Ibid.)

Defendant urges us to disregard Gonzales because it ignores the words of the statute by dismissing the wording as a drafting oversight. We see no reason to disregard Gonzales because we agree with the courts basic analysis and conclusion but unlike the court in Gonzales, we find no ambiguity in the statutory language when read in light of the rules of grammar and the last antecedent rule. Our conclusion is further supported by looking to the purpose of the statute and the statutory scheme of which it is a part.

Statutes prohibiting impersonation have two purposes, to prevent harm to the person falsely represented and to ensure the integrity of judicial and governmental processes. (Lee v. Superior Court (2000) 22 Cal.4th 41, 45.) Section 146a appears in Part I, Title 7, Chapter 7, entitled Other Offenses Against Public Justice. The offenses defined in that chapter involve the wrongful interference with the administration of justice. That task is carried out in large part by police officers and sheriffs deputies, who are the local law enforcement officials that routinely effect arrests, detentions, and searches of persons and property. To limit the term public officer to officers in a state department would eliminate false representations of local law enforcement officials from the statute and significantly narrow the protective reach of the statute to state employees. This construction would thwart the purpose of the statute by eliminating from its scope the very public officials who carry out the acts specified in the statute. Because the term public officer encompasses a broader category of persons, it better serves the purpose of the statute.

As the court in Gonzales found, defendants construction would also conflict with the use of the term public officer in related statutes. The offense of falsely representing a public officer is covered by several statutes, although section 146a is generally viewed as the broadest of the sections. (See 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, 207, p. 230.) Nevertheless, the term public officer has been broadly construed under section 148 to apply to any public officer. (In re Frederick B. (1987) 192 Cal.App.3d 79, 89-90, overruled on other grounds in In re Randy G. (2001) 26 Cal.4th 556, 567, fn. 2 [the term public officer includes peace officer]; In re Eddie D. (1991) 235 Cal.App.3d 417, 421 [the term public officer includes probation officer].) Likewise, the similar term public official is defined broadly in former Government Code section 82048 and includes employees of local government agencies.[11]

In People v. Olsen (1986) 186 Cal.App.3d 257, the court construed the term public officer in section 148.2, subdivision 2.[12] Observing that it is not defined in the Penal Code, the court attributed that omission to the fact [t]he words public officer are used in so many senses that it is hardly possible to undertake a precise definition that will adequately and effectively cover every situation. (Id. at p. 265, quoting 52 Cal.Jur.3d, Public Officers and Employees, 1, p. 162, fn. omitted.)

We agree. The Legislatures use of the term public officer signals its intent to give the statute its broadest application. Accordingly, we hold the phrase in any state department does not modify that term.

B. A Person Authorized to Establish, Issue, and Collect Parking Citations is a Public Officer

Relying on Vehicle Code sections 40202[13]and 22507.9,[14]defendant argues that a private citizen is authorized to issue and enforce parking citations. From this erroneous assumption, he argues that one who issues parking citations is not a public officer because while he or she may have delegated authority to perform governmental functions, such authority and functions are not attached to a public office. Defendants reliance on Vehicle Code sections 40202 and 22507.9 is erroneous[15]and misplaced.

[A] public officer . . . is one who, inter alia, is delegated a public duty to exercise a part of the governmental functions of the political unit for which he, as agent, is acting. (Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1212, italics omitted (Dibb).) The essential elements of a public officer are a tenure of office which is not transient, occasional or incidental, but is of such a nature that the office itself is an entity in which incumbents succeed one another . . ., and, second, the delegation to the officer of some portion of the sovereign functions of government, either legislative, executive, or judicial. (Ibid., quoting Spreckels v. Graham (1924) 194 Cal. 516, 530.)

In Dibb, supra, 8 Cal.4th 1200, the Supreme Court found that members of a Citizens Law Enforcement Review Board (CLERB) were public officers because they were empowered to hold hearings, administer oaths, and issue subpoenas in order to investigate on behalf of the board of supervisors, complaints about the official conduct of county employees. (Id. at p. 1212.)

While defendant claims a person who merely issues parking citations is not a public officer (see Veh. Code, 40202, subd. (a)), we need not address that question because the evidence demonstrates he engaged in far more reaching conduct, which involved executive and legislative functions by establishing an alternate system for publishing, issuing, collecting, and contesting handicap parking citations.

The evidence shows he established and produced citations for handicap parking violations, issued the citations to individual motorists, assessed and collected the fines, determined how the funds should be spent, handled motorist inquiries, occasionally dismissing the citation or reducing the fine, and established and conducted an administrative appeals process for motorists who desired to contest the citation. His express purpose was to enforce the handicap parking laws because, in his view, local authorities were failing to enforce them.

Defendant argues that because the tenure of an issuing officer is transient, that position is not a public office. He misses the point. Because his acts went way beyond those of an issuing officer, the tenure of an individual who is authorized to merely issue the citation is not at issue. On the other hand, the tenure of the issuing authority itself is not transient and defendant acted as such by creating and carrying out an alternate law enforcement scheme by which he engaged in legislative and executive functions. The evidence therefore supports the trial courts finding that he engaged in acts of a public officer.

C. Insufficiency of the Evidence

Defendant next claims the evidence is insufficient to establish he impersonated an issuing officer. He argues the evidence establishes only that he intended to convey that the notices had legal force and effect but fails to show that any of the recipients saw him affix a citation to their vehicle or wear the required uniform or badge worn by an issuing officer. (See Veh. Code, 22507.9.) Respondent argues this contention is without merit and focuses on the wrong question. We agree with respondent that the claim has no merit.

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. . . . The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Mincey (1992) 2 Cal.4th 408, 432.)

In Gonzales, supra, 114 Cal.App.4th 560, as discussed ante, the defendant was convicted of two counts of impersonating a public officer. In addition to claiming he did not impersonate a state public officer, he also contended the evidence was insufficient as to the first incident because neither he nor his accomplice did or said anything to indicate they were public officers. The court rejected this claim finding the evidence was sufficient to support the verdict based upon the polite manner in which the accomplice spoke to the victim, which conveyed the impression he and the defendant were undercover officers, and commission of a similar offense one week later when the accomplice explicitly told the victim he and defendant were undercover officers. (Id. at p. 570.)

Under these principles, we find substantial evidence that defendant committed two instances of attempting to obtain money by falsely representing himself as a public officer. We first dispose of defendants argument there is no evidence he intended to falsely convey he had authority to issue the notices. This claim is a bit late in the process and without any merit given his defense at trial that as a disabled citizen, he had the authority to issue the citations.

Next he argues that while he presented a fraudulent document, which he concedes was made to look official, he did not physically impersonate a public official by wearing a uniform or badge. Defendant assumes without citation of authority or analysis that there must be proof he physically impersonated a public official. In so doing, he ignores the language of the statute, which does not proscribe false personation. (Compare 528 et seq. [proscribing false personation].) Rather it punishes [a]ny person who falsely represents himself . . . to be a public officer . . . . ( 146a, subd. (b), italics added.)

Section 146a does not specify or limit the manner or means by which one must falsely represent[] himself as a public official. The Legislatures use of the term represents further evinces a clear intent to include verbal representations, whether they are oral or in writing and whether they are made in the victims physical presence or conveyed from a distance by some other media including the telephone. We therefore decline to read into the statutes broad language a physical impersonation requirement.

During oral argument, defendant further argued that the evidence in support of count 10, the citation of the delivery van on August 19, 2002, is insufficient because the mere placement of an official looking document on a vehicle does not constitute impersonation of a public officer because he did not personally represent his authority. We disagree where as here he published and distributed a parking citation that appeared to be an official document issued by a governing law enforcement authority. He admitted that he modeled the citations on parking tickets issued by the City of Oroville. Each citation was entitled Notice of Parking Violation, indicated it was issued by California State Parking Enforcement, bore a badge or identification number, charged a violation of state laws regulating parking for the handicapped, listed a series of Vehicle and Civil Code sections, directed the recipient to pay a civil penalty of $280 within 21 days or suffer further penalty and advised that an investigation and administrative hearing were available to contest the citation.

We also reject defendants related argument that no one saw him affix a citation to a vehicle. To the extent he argues the prosecution failed to establish his identity as the one who issued the citations, he ignores the evidence, which established that he admitted he produced the citations and that he issued them by placing the notices on vehicles parked in handicap parking spaces. He also ignores the evidence on count nine that the Butte Community Bank account representative saw him issue a citation and place it on the van parked outside the bank and that he told Officer Purdy he had the right to issue that citation. As to count ten, the evidence shows that when Jeff Ercolini of Geweke Ford-Kia telephoned the toll free number on the citation to inquire about the validity of the citation, defendant answered the call and identified himself by his name and as a person who worked for the State Department of Handicaps Parking Enforcement. Moreover, defendant admitted to Officer Purdy he was the one who answered the telephone number listed on the back of the citation.

In sum, there was substantial evidence to prove defendant falsely represented that he had the authority to publish and issue parking citations subject to a fine, that he issued those citations, collected the fines, and administered appeals. The citations appeared to be issued by and payable to a governmental agency and several of the recipients paid the fine believing the notices carried the force of law. Accordingly, the evidence is sufficient to support the verdict.


Ineffective Assistance of Counsel

Defendant contends he received ineffective assistance of counsel because pre-trial counsel erroneously advised him that if he pled to two misdemeanor counts of attempted petty theft and chose to appeal, the matter would be heard by the appellate department of the Butte County Superior Court. As a result of this advice, defendant decided to go to trial rather than accept the prosecutions plea bargain. Respondent contends this claim has no merit because defendant cannot show counsel was incompetent or that he was prejudiced. We find this claim has no merit because defendant has failed to show the prejudice prong of his claim.

A. Factual Background

On October 14, 2003, the date of the pretrial readiness and settlement conference, defendant, defense counsel, and the prosecutor met and discussed a plea bargain to two counts of attempted petty theft without any additional jail time. Defendant had three concerns. He wanted to know (1) whether the offer included an agreement by the Sutter County District Attorneys office to forego prosecution for similar behavior in their jurisdiction, (2) whether he could appeal the legal issue of his alleged right to issue, administer, and collect fines for his notices of parking violation directly to the Court of Appeal and (3) he wanted his own copy of all discovery so he could personally review it and make a determination whether to accept the offer.

As to the first and second concerns, the prosecutor agreed to contact the Sutter County District Attorneys office and allow defendant to retain his right to appeal the legal issue. However, the prosecutor and defense counsel both erroneously advised defendant that if the case was disposed of as a misdemeanor, any appeal would be heard by the Butte County Superior Court.[16]Defendant voiced his concern about appealing to the Butte County Superior Court rather than the Court of Appeal, but did not accept or reject the proffered plea at that time. The case was continued to November 3, 2003, to further investigate matters regarding the proffered plea bargain.

On November 3, 2003, the trial date was vacated so defendant would have time to review the discovery. When the court raised the question of the plea offer, defense counsel responded [s]till hopeful, but. Later on in the hearing, defendant advised the court he had not yet rejected the prosecutions offer but was requesting that the matter be set for Marsden[17]and Faretta[18]hearings.

On December 1, 2003, the prosecutor produced a letter from the Sutter County District Attorneys office agreeing not to prosecute defendant if he entered the proposed disposition in Butte County.

On December 12, 2003, the trial court granted defendants Faretta motion to represent himself.

On January 26, 2004, the trial court offered to meet with the prosecutor and defendant to assist in settlement discussions and defendant agreed to meet with the court on February 10, 2004.

On March 29, 2004, at another trial readiness conference, defendant advised the court he had absolutely rejected the prosecutions offer.

On September 30, 2004, defendant filed a motion for new trial. In his declaration, he stated that the offer from the People was to 2 counts of attempted petty theft as a misdemeanor, no jail time, with the understanding that I could appeal. I wanted to appeal to the 3rd District Court of Appeal, but both my attorney and the DA stated emphatically that I had to appeal to the Appellate Division of the Superior Court of California, County of Butte. Their statements of where to appeal, were based on their understanding of the legal appellate process. If I could have appealed to the 3rd District Court of Appeals, I would have pled no contest and sought to overturn the plea at the appellate court. (Italics added.)

Denny Forland, who represented defendant at the time of the plea negotiations, also filed a declaration in support of defendants motion. He declared that during the one-hour conference with defendant and the prosecutor, defendant inquired where his appeal would be heard and he was advised it would be heard by the appellate department of the superior court because the plea resulted in a misdemeanor disposition. When defendant inquired whether the parties could stipulate to certify or otherwise transfer the matter to the court of appeal, he was told they could not do so. Forland further declared that [d]efendant did express a willingness to resolve the case if his appeal could be heard in a venue other than ButteCounty.

In his opposition to the motion, Chief Deputy District Attorney Howard Abbott filed a declaration in which he stated that the settlement meeting with the court on February 10th did not last very long, there was very little discussion concerning settlement of the case, and defendant categorically and unconditionally rejected the Peoples offer. Abbott noted that he was impressed by the defendants words and demeanor that he believed the People did not have a case and that the charges were defensible.

The trial court denied the motion finding defendants failure to accept the prosecutions plea bargain was due to his own incompetence in representing himself rather than to any incompetence on the part of defense counsel. This was because during the time he represented himself, the applicable rule of court (former rule 30(a)) was amended and if he had updated his research prior to trial, he would have discovered that the appropriate appellate forum was in the court of appeal rather than the superior court.

B. Analysis

In In re Alvernaz (1992) 2 Cal.4th 924 (Alvernaz), the California Supreme Court held that the rendering of ineffective assistance by counsel, resulting in a defendants decision to reject an offered plea bargain and proceed to trial, constitutes a constitutional violation which is not remedied by a fair trial. (Id. at p. 936.) To demonstrate he has received inadequate representation, the defendant must show (1) counsels representation was deficient, i.e. it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels deficient performance subjected the defendant to prejudice, i.e. there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (Id. at pp. 936-937; Strickland v. Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693-699].)

If the defendant fails to show prejudice, the court may reject the claim without determining the adequacy of counsels performance. (Alvernaz, supra, 2 Cal.4th at p. 945.) To establish prejudice, defendant must prove there is a reasonable probability that, but for counsels deficient performance, [he] would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court. (Id. at p. 937.) Because of the ease of making this claim after trial and the difficulty in refuting it, the court cautioned that this prong should be closely scrutinized.

Pertinent factors to consider in determining prejudice include whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. (Alvernaz, supra, 2 Cal.4th at p. 938.) In evaluating these factors, a defendants self-serving statement--after trial, conviction, and sentence--that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendants burden of proof as to prejudice, and must be corroborated independently by objective evidence. (Ibid.)[19]

The court in Alvernaz, supra, concluded the petitioner (hereafter the defendant) failed to establish prejudice. He had been charged with three counts of robbery, one count of burglary, one count of kidnapping for the purpose of robbery, a personal firearm use enhancement and a prior conviction allegation. After the preliminary hearing, the district attorney offered to allow him to plead guilty to one count of robbery with a four or five-year maximum sentence less work time credits. Counsel advised against the plea telling the defendant he could win at trial. (2 Cal.4th at p. 930.) He went to trial, was convicted of all charges except the burglary and received a life sentence, which would result in prison confinement for 16 years and seven and one-half months prior to parole. (Id. at p. 929.)

The Supreme Court found the defendants declaration that he would have accepted the plea bargain but for counsels advice was self-serving and there was insufficient independent corroboration. While the court found some corroboration in the substantial disparity between the term of confinement the defendant actually faced compared to the term he would have faced had he accepted the plea bargain (2 years actual confinement under the plea compared to his sentence of 16 years and seven and one-half months confinement before parole), the court concluded the defendant had adamantly insisted on his innocence and his decision to reject the plea offer was motivated primarily by a persistent, strong, and informed hope for exoneration at trial . . . . On the other hand, his sentencing options were secondary to his decision. (Id. at p. 945.)

Likewise, we find defendant herein has failed to establish prejudice. As in Alvernaz, defendants declaration that he would have accepted the plea but for counsels erroneous advice concerning his appellate rights is self-serving and insufficient by itself. Nor does defense counsels declaration provide sufficient independent corroboration because he merely declared that at the time the offer was made, [d]efendant did express a willingness to resolve the case if his appeal could be heard in a venue other than Butte County. Defendants mere willingness to resolve the case at that time does not establish he rejected the offer five months later because of counsels earlier advice.

This is particularly true given the fact that during those subsequent five months, defendant never raised any concerns about appellate jurisdiction although he continued to advise the court the offer was still on the table and he had not rejected it. Instead of conducting research on that question,[20]which he now claims was the pivotal issue for him, he spent his time reviewing the discovery and then unconditionally rejected the plea offer because he believed the People did not have a case and the charges were defensible. In sum, other than his self-serving statement, the record suggests his primary motive in rejecting the offer was his strong belief in his own innocence rather than his erroneous belief that his appeal would be heard by the Butte County Superior Court.

Furthermore, Alvernaz does not require specific performance of the proffered plea bargain following a finding of ineffective assistance of counsel at the plea bargain stage. (2 Cal.4th at p. 944.) The district attorney may elect to retry the defendant and resume the plea negotiation process. (Ibid.) In light of the evidence against defendant and our holding in Part I, it is not reasonably probable the district attorney would make the same plea offer. Accordingly, we reject defendants claim of ineffective assistance of counsel.


Motion to Reduce Felonies to Misdemeanors

Defendant contends the trial court abused its discretion by denying his motion to reduce his felonies to misdemeanors. ( 17, subd. (b).) Respondent contends the trial court properly exercised its discretion. We agree with respondent.

Section 17, subdivision (b)[21]grants the trial court broad discretion to impose a misdemeanor sentence on a wobbler, an offense that is punishable either by imprisonment in the state prison or by fine or imprisonment in the county jail. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974-975 (Alvarez).)

Appellate courts review the trial courts decision under section 17, subdivision (b) for abuse of discretion (Alvarez, supra, 14 Cal.4th at p. 977) and [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Concomitantly, [a] decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] [Citation.] (Id. at pp. 977-978.)

The relevant factors that inform the trial courts discretion include the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial. (Alvarez, supra, 14 Cal.4th at p. 978.) The trial court should also consider the general objectives of sentencing as stated in California Rules of Court, rule 4.410. (Ibid.)[22]

The trial court denied defendants motion to reduce his felony convictions to misdemeanors explaining that defendant had failed to pay two outstanding fines in previous traffic matters or turn himself in to do jail time in lieu of the fine, he had previously shown an inclination to disregard the orders of the court and the repeated advice of law enforcement that he did not have authority to issue parking tickets, and for the last two years, he had continued to harass people who park in handicapped parking spaces. Finding that defendant doesnt get it, the court concluded a felony conviction is necessary.

The trial courts ruling takes into account the relevant factors and sentencing objectives, namely defendants prior failure to obey the law and the courts orders, his failure to appreciate the wrongfulness of his conduct, and the likelihood he will reoffend because of his demonstrated refusal to accept authority. We find no abuse of discretion.


Motion to Change from Self-Representation

to Appointed Counsel

Defendant contends the trial court abused its discretion by denying his request for appointed counsel at the onset of trial. Respondent contends the trial court properly denied the request. We agree with respondent.

A. Factual Background

On March 17, 2003, the trial court heard and denied defendants first motion for a modified Faretta in which he requested to act as co-counsel with Mr. Forland who was representing him at the time. Forland advised the court he would represent defendant but would not act as co-counsel. When the court informed defendant it did not have the funds to appoint advisory counsel, defendant responded that he was stuck with Mr. Forland.

On December 8, 2003, defendant filed his second written motion requesting to represent himself as co-counsel or with advisory counsel. The court denied the motion to appoint advisory counsel but granted defendants motion to relieve appointed counsel and represent himself.

On June 9, 2004, the morning of the first day of trial, defendant advised the court he would like to renew his request for co-counsel, advisory counsel or appointment of an attorney, in that order. The court told defendant it would consider only appointing counsel. Defendant responded by telling the court he was not skilled enough to represent himself in a criminal proceeding and was then requesting the appointment of counsel.

After considering the cases cited by defendant and the relevant factors specified in People v. Windham (1977) 19 Cal.3d 121, 128, the court denied defendants request, making a number of factual findings.[23] Defendant responded by telling the court that Forland was up to speed and that a continuance would not be necessary if the court appointed him but the court found a continuance would be necessary . . . .

B. Analysis

When a defendant who is representing himself makes an untimely request for the appointment of counsel, the trial court must exercise its discretion by considering the totality of the facts and circumstances. (People v. Gallego (1990) 52 Cal.3d 115, 164; People v. Smith (1980) 109 Cal.App.3d 476, 484.) The relevant factors to consider are: (1) defendants prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney. (People v. Gallego, supra, 52 Cal.3d at p. 164, quoting People v. Elliott (1977) 70 Cal.App.3d 984, 993-994.)

These factors are similar to those specified in People v. Windham, supra, 52 Cal.3d at page 128, and as the Supreme Court has recognized, [t]he Windham factors primarily facilitate efficient administration of justice, not protection of defendants rights. (People v. Clark (1992) 3 Cal.4th 41, 109.)

Here the trial court reviewed the applicable law and made a reasoned decision to deny defendants motion. As the trial court found, this case had been on the docket for approximately two years and several trial dates had been vacated. Defendant was requesting that Forland be appointed to represent him on the eve of trial and his appointment would have required a continuance. Although he told the court a continuance was not necessary because Forland would not have to get up to speed, defendant had previously filed a Marsden motion to relieve Forland as counsel and in his December 8, 2003, motion to represent himself, he took the view that Forland was not a capable criminal trial lawyer and did not have the knowledge or the time to grasp the civil law necessary to represent him.[24] Defendant cannot have it both ways.

Moreover, the court made at least two inquiries of defendant as to whether he wanted appointed counsel, the first was made 10 days prior to trial, the second was made sometime between that date and the first day of trial. Both times defendant insisted on representing himself. Defendants reason for requesting appointed counsel on the eve of trial was due to his sudden realization he was not skilled in the area of criminal procedure. However, as the trial court found, he made a knowing and intelligent waiver of his rights when his Faretta motion was granted and he had subsequently proven he was capable of representing himself in the matter. Moreover, we note defendant never denied committing the charged acts. His defense was a legal one and in that regard he believed his understanding of the law was superior to Forlands understanding. Thus, his task at trial in defending against the prosecutions evidence should not have been a difficult one. Based upon the totality of these circumstances, we find no abuse of discretion in denying defendants motion.


The judgment and sentence are affirmed.

BLEASE , Acting P. J.

We concur:



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[1] All further section references are to the Penal Code unless otherwise specified.

[2] The court found defendant not guilty of three counts of attempted extortion. ( 664, 520; Cts. 3, 4, 5.)

[3] Count 10.

[4] Count 7.

[5] Count 8.

[6] Count 6.

[7] Count 2.

[8] Counts 1 and 9.

[9] The original version enacted in 1929 read as follows: Any person who falsely represents himself to be a public officer and in such assumed character arrests or detains any person or searches the person, building, or other property of any person, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars or imprisonment for not more than one year or by both such fine and imprisonment. (Stats. 1929, ch. 211, 1, p. 377.)

[10] The 1931 amendment to section 146a read as follows: Any person who falsely represents himself to be a public officer, or investigator, inspector, deputy or clerk in any state department and in such assumed character arrests or detains or threatens to arrest or detain, or otherwise intimidates any person or searches the person, building, or other property of any person, or obtains money, or property, or other thing of value, shall be deemed guilty of a misdemeanor . . . . (Stats. 1931, ch. 680, 1, p. 1420, italics added.)

[11] Public official means every member, officer, employee or consultant of a state or local government agency, but does not include judges and court commissioners in the judicial branch of government. Public official also does not include members of the Board of Governors and designated employees of the State Bar of California, members of the Judicial Council, and members of the Commission on Judicial Performance, provided that they are subject to the provisions of Article 2.5 (commencing with Section 6035) of Chapter 4 of Division 3 of the Business and Professions Code as provided in Section 6038 of that article. (former Gov. Code, 82048; Stats. 1984, ch. 727, 5, p. 2665.)

[12] Section 148.2 provides in pertinent part: Every person who willfully commits any of th

Description Defendant appeals from the judgment and sentence after the trial court found him guilty of four counts of misdemeanor attempted petty theft (Pen. Code, 664/488; Cts. 1, 6, 7, 8), one count of receiving stolen property ( 496, subd. (a); Ct. 2), and two counts of attempting to obtain money by falsely representing himself as a public officer. ( 664/146a, subd. (b); Cts. 9 and 10.)[2] He was placed on formal probation for three years and ordered to serve 180 days in jail and perform 400 hours of community service.
On appeal, he contends the evidence is insufficient to establish he impersonated a public officer, counsels ineffective assistance caused him to reject a proposed plea bargain, and the trial court abused its discretion by denying his motion to reduce the felony convictions to misdemeanors and denying his request to change from self representation to representation by appointed counsel.
Court find no error and affirm the judgment and sentence.

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