P. v. Thomas
Filed 10/8/08 P. v. Thomas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP BRENT THOMAS, Defendant and Appellant. | E044177 (Super.Ct.No. FWV700871) OPINION |
APPEAL from the Superior Court of San Bernardino County. Raymond P. Van Stockum, Judge. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Following a court trial, defendant was found guilty of petty theft with a prior (Pen. Code, 666)[1]and not guilty of burglary ( 459). Prior to trial, defendant admitted that he had previously been convicted of four petty theft crimes. Defendant was sentenced to a total term of two years in state prison. Defendants sole contention on appeal is that the trial court committed reversible error in denying his motion to represent himself. We reject this contention and affirm the judgment.
I
FACTUAL BACKGROUND
Raymond Zamora is employed as a police officer for the City of Azusa and also owns an automotive repair shop in Upland. On December 26, 2006, Zamora was at his shop when defendant drove up and parked in the lot directly in front of Zamoras office. Defendant entered the shops office and removed Zamoras wallet from a locked desk drawer.
Zamora saw defendant walking out of the office and asked him if he could help him. When Zamora entered his office, he observed the usually locked top drawer of his desk was ajar and discovered that his wallet was missing.
Zamora asked defendant to come into his shop so he could give him a quote for the requested repair work. Defendant appeared to be extremely nervous, and Zamora noticed defendant had some of Zamoras business cards. Zamora drew his gun from the desk drawer and held it at defendant until police arrived.
When defendant was searched by the responding officers, Zamoras credit cards and business cards were found in defendants shirt pocket. Underneath the desk, the officers found Zamoras wallet. It was lying open with a couple $100 bills in it.
Defendant was detained and advised of his constitutional rights. Defendant denied going into Zamoras office and stealing Zamoras belongings or touching Zamoras wallet. He claimed that he had found Zamoras credit cards at an Ontario car wash several days before.
II
DISCUSSION
On December 28, 2006, defendant was arraigned in case No. FWV040156 on charges of burglary and petty theft with a prior stemming from his current conduct. On January 4, 2007, criminal proceedings were suspended pursuant to section 1368 because the trial court questioned defendants competency to stand trial. Defendant was ordered to submit to a mental health examination. The court appointed Dr. William H. Soltz to examine defendant and file a report pursuant to section 1368.
On March 1, 2007, the trial court reviewed the submitted mental health examinations on defendant and found defendant competent to stand trial. Criminal proceedings were reinstated.
On March 7, 2007, defendant requested he be allowed to represent himself in case No. FWV040156 pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]. He was represented by Attorney Valarie Young at that time. On March 9, 2007, defendants motion was heard and denied. The court indicated that it had called Dr. Soltz for his opinion as to whether defendant was capable of representing himself and was waiting for Dr. Soltzs reply since Dr. Soltz had not expressed any opinion as to whether defendant had the mental capacity or competency to represent himself on February 18, 2007, when the doctor originally interviewed defendant. In his reply, transmitted by facsimile, Dr. Soltz noted that although defendant was competent under section 1368, [defendant] would not be able to properly act as his own counsel. The court also pointed out that Dr. Soltzs original report noted defendant was okay with his attorney, was cooperative, and said he did not plan to conduct his own defense and [had] no desire to do so.
Following a preliminary hearing, an information was filed and defendant entered a not guilty plea on the burglary and petty theft charges. Defendant, represented by Attorney Young, subsequently filed a motion to dismiss the information in case No. FWV040156 pursuant to section 995. On April 27, 2007, defendants motion to dismiss the information was heard and granted. The court dismissed case No. FWV040156 in furtherance of justice, and defendant was released from that case. The People thereafter refiled the same charges in case No. FWV700871.
Defendant complains that the trial court erred in denying his Faretta motion on the basis of Dr. Soltzs reply without holding a hearing or reviewing the Faretta form that defendant had filled out.
The People respond that defendant should be barred from challenging this issue, as defendant failed to renew his Faretta motion in this current case, case No. FWV700871. We agree with the People. From the time the new case was filed against him on April 27, 2007, to the time he was convicted on August 20, 2007, defendant never made a motion to represent himself in the current case. Accordingly, since defendant did not file a Faretta motion in his current case, he is barred from challenging the denial of the Faretta motion in the dismissed case. Defendants argument to the contrary that it would have been futile to renew the motion in his current case is mere speculation, considering the current case was held before a different judge.[2]
Moreover, since case No. FWV040156, defendants prior case in which he made the Faretta motion, was dismissed pursuant to section 995, any issues relating to that case are moot. Section 995, in pertinent part, provides that an information shall be set aside by the court in which defendant is arraigned, upon motion of the defendant, where, before filing of the information (1) the defendant had not been legally committed by a magistrate, or (2) the defendant had been committed without reasonable or probable cause. ( 995.) The information in case No. FWV040156, where defendant made the Faretta motion, was set aside. Hence, any issues relating to that case are moot. The fact that defendant was subsequently charged with the same crimes in case No. FWV700871 does not revive for appellate purposes alleged trial errors occurring in that prior dismissed case. Rather, as the People note, the filing of the current case is a new case requiring both parties to file new motions and documents to litigate the issues. We find that, because defendant failed to file a Faretta motion in his current case, he is barred from challenging his conviction in his current case on the denial of a Faretta motion he made in a previously filed and dismissed case.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P.J.
KING
J.
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[1] All future statutory references are to the Penal Code unless otherwise stated.
[2] Defendants Faretta motion in case No. FWV040156 was made before Judge Raymond Youngquist. Defendants current case (case No. FWV700871) was heard before Judge Raymond Van Stockum. Defendant did not make a Faretta motion to Judge Stockum.
