P. v. Gellini

Filed 8/25/08 P. v. Gellini CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Martin L. Herscovitz, Judge. Affirmed.

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Following a court trial, defendant was convicted of petty theft with a prior ( 666/484, subd. (a).)[1] The court found true three prior convictions which had been alleged to limit the trial courts ability to grant probation ( 1203, subd. (e)(4)). The court sentenced defendant to a 16-month state prison term.

On appeal, defendant contends that the trial court abused its discretion in denying his four Marsden[2]motions and his motion to withdraw his waiver of a jury trial. We find no abuse of discretion in regard to any of the contested rulings and therefore affirm the judgment.

STATEMENT OF FACTS

1. The Prosecutions Case

On February 15, 2007, defendant went to the Van Nuys Home Depot. Loss prevention agent Robert Wheeler saw defendant place two cans of paint, each costing $103, into an empty shopping cart and go to the return counter. Defendant told the cashier that he wished to exchange the paint. The cashier alerted loss prevention because he had seen defendant come to the return counter from the inside rather than the outside of the store. The manager told defendant the store would not accept the merchandise for a refund. The store employees asked defendant where he had been in the store immediately before coming to the return counter. Defendant insisted upon returning the merchandise. The employees reiterated that would not be possible whereupon defendant left the store with the cart containing the two paint cans. Defendant never made any effort to pay for the two paint cans. Wheeler stopped defendant outside of the store. He asked him why he had taken the merchandise. Wheeler testified that defendant apologized for taking it out and said it was his wifes birthday.

Los Angeles Police Officer Jonathan Hewitt arrested defendant. During a pat down search, he recovered four pieces of identification from defendant. One, a passport, bore defendants name. Each of the other three (a California Drivers license and two gym membership cards) bore a different name. In particular, the drivers license bore the name of Alex Villalobos.

A Home Depot security videotape was introduced into evidence which the trial court reviewed.

2. The Defense Case

Defendant testified and claimed that his friend, identified only as Alex, wanted to return paint that he (Alex) had bought at Home Depot. Alex waited in the stores return line while defendant went to the paint department where he located the paint Alex wanted. Defendant rejoined Alex with the new paint. He and Alex waited 30 minutes while the clerk processed the exchange but then Alex had to leave to pick up his wife. Defendant remained behind with the paint. The store manager came to the return counter and declined to authorize the return. Defendant attempted to leave with the paint that Alex had allegedly previously purchased but Wheeler stopped him and falsely accused him of stealing the paint.

3. The Trial Courts Verdict

After both sides rested, the trial court viewed the Home Depot security videotape. The judge found defendant guilty, explaining: I think its pretty clear that what happened there is just as the security guard [Wheeler] described, of [defendant] entering without anything, then selecting a shopping cart that was empty, and then returning to the return area with a shopping cart with the two five-gallon containers, which is totally at odds with what [defendant] testified to.

DISCUSSION

I. DEFENDANTS MARSDEN MOTIONS

A. Factual and Procedural Background

1. The Preliminary Hearing

Because much of defendants stated dissatisfaction with trial counsel was based upon his incorrect representations about what his attorney at the preliminary hearing had done, we begin with a summary of that proceeding. (The trial court reviewed the preliminary hearing transcript when it ruled upon defendants Marsden motions.)

There, defendant was represented by deputy public defender Nick Stewart-Oaten. Wheeler, the loss prevention agent, testified as follows. Defendant went to the stores paint department, placed two cans of paint (cost $103 each) in an empty shopping cart, and proceeded to the return counter. When a store employee declined to accept his return due to lack of receipt, defendant left the store with the paint without paying for it. Outside the store, Wheeler stopped defendant. Defendant told him: He wanted to exchange it. There was no other paint at the returns counter or anywhere else around there for an exchange to happen. [] . . . He admitted [that he] took the paint without paying for it. In the course of his testimony, Wheeler explained that a security video showed defendant exiting the store without paying for the paint. Officer Hewitt testified that he arrested defendant for theft.

Stewart-Oatens cross-examination of the two prosecution witnesses suggested the following explanation for defendants actions. Defendant accompanied a friend, identified only as Alex, to Home Depot. Alex wished to exchange paint he had purchased. The two men entered the store and Alex selected the new paint he wanted. Defendant and Alex then proceeded to the return counter. At some point, Alex left to retrieve from his car the paint he wished to return. When Alex did not return, defendant left with the paint Alex had chosen. Officer Hewitt testified that identification in the name of Alex (no last name mentioned) was recovered from defendant. He also testified that pursuant to defendants direction, he retrieved defendants bicycle parked outside of the store.

2. Trial Proceedings

In the superior court, defendant was represented by deputy public defender Donna Tryfman.

a. The First Marsden Motion

At the March 29, 2007 pretrial conference, defendant stated he was dissatisfied with Tryfmans representation and that he wanted Stewart-Oaten to represent him again. The court adjourned to an in-camera proceeding. There, defendant claimed that Tryfman has not read my file at all, doesnt know that much about my [case]. Tryfman explained that Stewart-Oaten was a new deputy public defender and that he had represented defendant at the preliminary hearing pursuant to her (i.e., Tryfmans) direction. Tryfman had reviewed Stewart-Oatens notes as well as the transcript of the hearing. She believed that defendants dissatisfaction flowed from his unhappiness with her analysis that the prosecutor would not offer him probation as part of a negotiated settlement. The court ruled: The court finds that there has not been a break down such as it would be impossible for the defendant and Ms. Tryfman to properly represent him, so your motion to relieve Ms. Tryfman is respectfully denied.

b. The Second Marsden Motion

At the next court appearance on April 18, defendant again stated he was dissatisfied with Tryfman. In an in-camera proceeding, he explained that Tryfman had not spent enough time with him and was not prepared. In particular, he complained that she had not obtained the Home Depot videotape which he (incorrectly) claimed established his innocence. Defendant inaccurately stated that Stewart-Oaten had issued a subpoena for that tape (the tape was referred to but not produced at the preliminary hearing) and that Stewart-Oaten had subpoenaed the two witnesses at the preliminary hearing (the prosecution, not the defense, had called the two witnesses).

Tryfman stated that she had definitely read the file and was prepared to go to trial on this case. Given the facts of the case, she believed that she had had adequate time to consult with defendant (at several court appearances and one meeting before a court appearance) even though she had not met with him at county jail. She had made several requests to the prosecution to produce the Home Depot videotape. Defendant had asked her to request a plea bargain including only probation and county jail time. She did communicate that offer to the prosecutor who declined it. Lastly, she had complied with defendants request to have the court sign an order regarding his medical care.

The trial court ruled: To the extent that there was any disagreement between what Ms. Tryfman says and what the defendant says, I believe Ms. Tryfman, that she has prepared for trial in this case and is adequately representing the defendant. [] I have no reason to believe that she will not continue to properly represent this defendant. So [the] motion to relieve her as an attorney in this case is respectfully denied.

3. The Third Marsden Motion

On Friday, May 11, defendant indicated that he had reviewed the Home Depot videotape which the prosecutor had produced earlier. In open court, defendant stated: She [Tryfman] never spent any time. She doesnt know anything about my case, and Im afraid Im going to lose it if we go to trial. [] Well, after three months, just we had one video CD, and I believe I believe Im not sure that there are more videos from Home Depot. [] . . . I write letters to her. I never know what was happening. The court adjourned to an in-camera proceeding.

Defendant explained he had left four or five phone messages for Tryfman which she had not returned. He had asked her to visit him in jail but she had not done so. In response to questions from the court, defendant stated he had told Tryfman his version of the events and had given her names of potential witnesses. In addition, defendant claimed that the prosecution had not produced all of the Home Depot security videotapes.

Tryfman explained: I have received and listened to every message [defendant] has left me. He calls me almost daily and, when he does call daily, he calls almost twice or three times a day. During his messages, he has explained his version. I listened to his version. I made notes on his version. I understand his version. [] He has never provided any witness contact information; specifically, Alex, first name only, last name unknown; and he doesnt listen when I talk to him.

The trial court denied defendants motion. It explained: I have to decide . . . whether Ms. Tryfman can properly represent you in this case and, having heard both sides, I think its [defendants] attitude that makes it difficult for Ms. Tryfman or any attorney to represent him. [] I think if I were to appoint any different attorney, we would have the same problem, because [defendant] doesnt seem to listen to the court. He constantly wants to speak out of turn, and to speak about topics unrelated to the questions that are asked. [] So I think its his attitude that prevents him from communicating properly, in his mind, with Ms. Tryfman. I think any attorney who handled this case would handle it would have the same issues with [defendant].

The court continued the matter to Monday, May 14 for trial.

4. The Fourth Marsden Motion

On May 14, Tryfman stated that she need[ed] to put a couple of things on the record. She explained that she had received all discovery from the People but that defendant continued to insist that other Home Depot security videotapes existed. Defendant reiterated his dissatisfaction with Tryfman. He claimed they cannot communicate very well; that she had failed to obtain exculpatory security videos; and that she did not return his phone calls.

In response to questions from the court, Tryfman stated that she had spoken with defendant that morning; that there was no additional information she needed to obtain from defendant to proceed to trial; and that she had advised him that the prosecutor had told her there were no more videotapes.

The court ruled: I think this is a continuation of your problems that I already heard . . . so your motion to relieve Ms. Tryfman is respectfully denied.

B. Analysis

When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representationi.e., makes what is commonly called a Marsden motion [citation]the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the courts discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)

Here, the trial court gave defendant four opportunities to explain his displeasure with Tryfman and carefully inquired into his complaints, including seeking responses from Tryfman. In these exchanges, defendant complained that Tryfman was not prepared to try the case and that she failed to adequately communicate with him. Tryfman unequivocally denied these assertions. The trial court explicitly credited Tryfman, a finding defendants appellate briefs ignore. To the extent there was a credibility question between defendant and [Tryfman], the [trial] court was entitled to accept counsels explanation. [Citation.] (People v. Smith (1993) 6 Cal.4th 684, 696.) Because the trial court concluded that defendants fears about Tryfmans ability to represent him were groundless, it properly denied his Marsden motions. (People v. Hall (1978) 87 Cal.App.3d 125, 133; see also People v. Silva (1988) 45 Cal.3d 604, 622 [The number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence].) As the trial court noted, the problem was not Tryfmans representation of defendant but defendants attitude. [A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. [Citation.] (People v. Smith, supra, 6 Cal.4th at pp. 696-697.) We therefore reject defendants argument that it was apparent from the record that an irreconcilable conflict had arisen between [him and Tryfman], and that the conflict resulted in ineffectual representation.[3] In sum, the trial court did not abuse its discretion in denying defendants Marsden motions.

II. DEFENDANTS MOTION TO WITHDRAW

HIS WAIVER OF JURY TRIAL

1. Factual Background

The matter had initially been set for a jury trial, with jury selection set to being on Friday, May 11. As set forth earlier, defendant made his third Marsden motion on May 11. After the trial court denied the motion, it explained to defendant that he had three options: (1) accept a plea bargain involving a 16-month term; (2) proceed to a jury trial; or (3) have a court trial. In response to an inquiry from defendant, the court explained that in a jury trial, twelve people would be selected to hear your case and decide whether or not youre guilty or not guilty; or you could have me alone decide your case, and I would listen to the same evidence that the jury would listen to. I could only find you guilty if I were convinced beyond a reasonable doubt that you were guilty, the same that the jury would have to decide; and the jury would have to be unanimous, meaning they all have to agree. After consulting with counsel, defendant stated he wished a court trial.

The following exchange then occurred:

THE COURT: Okay. Thats what you Mr. Gellini, you want me to decide whether youre guilty or not guilty, rather than a jury.

THE DEFENDANT: (In English) Yes, sir.

THE COURT: Therefore, do you waive and give up your right to a jury trial in this case?

THE DEFENDANT: (In English) Yes, sir.

THE COURT: You understand that right to a jury trial as Ive explained it to you?

THE DEFENDANT: (In English) Yes, sir.

THE COURT: You understand Im not going to give you any special consideration? Ill apply the same evidence, the same law; and then, if youre convicted, I will use the same factors. Youre not going to get any special bonus or consideration because you waived jury.

Do you understand that?

THE DEFENDANT: Yes, sir, Your Honor. You are the boss. You are the one, and I trust you. I trust I have a lot of trust in God, and I think God sent you here to decide my fate here, Your Honor.

THE COURT: Okay. Thank you for that expression of confidence.

So you waive and give up your right to a jury trial?

THE DEFENDANT: (In English) Yes, sir.

THE COURT: And counsel joins?

MS. Tryfman: I do.

THE COURT: And the People join?

[The prosecutor]: Yes.

Thereafter, the court continued the matter to Monday, May 14, for a court trial.

When the parties appeared on May 14, defendant made his fourth (and ultimately unsuccessful) Marsden motion. During the discussion of that motion, defense counsel advised the court that over the weekend defendant had left a message for her that he has possibly changed his mind and wishes to have a jury trial. After conferring with her client, she stated that defendant would like to make a motion to withdraw his jury trial waiver. The court asked for the grounds of the motion. Defendant replied: Because, Your Honor, I would just rather this trial not be before a judge alone. The court ruled: I have not heard any good grounds to withdraw your jury trial waiver, so that [request] is denied. The case was then tried to the court that day.

2. Analysis

It is well established that a waiver of a jury trial, voluntarily and regularly made, cannot afterward be withdrawn except in the discretion of the court. [Citations.] Absent special circumstances the court may deny a motion to withdraw such a waiver especially where adverse consequences will flow from the defendants change of mind. In exercising its discretion the court may consider such matters as the timeliness of the motion to withdraw the waiver, the reason for the requested withdrawal and the possibility that undue delay of the trial or inconvenience to witnesses would result from granting the motion. (People v. Chambers (1972) 7 Cal.3d 666, 670-671.)

Here, defendant does not contest that his waiver of his right to a jury trial was knowing and voluntary. Instead, he urges that the trial court abused its discretion in denying his request to withdraw the waiver because he clearly articulated his desire to be tried by a jury instead of the court. The argument is not persuasive. Defendant failed to articulate any special circumstances to warrant granting his request. Little or no weight should be given to his conclusory statement that he preferred a jury trial given his colloquy on May 11 with the trial court when he waived jury. The trial court had explained in detail the differences between a court and jury trial. Defendant stated that he understood those differences[4]but that he wanted a court trial because he trusted the judge. Defendants explanation for his desire to withdraw his waiver did nothing to explain why he had (again) changed his mind.[5] Further, defendants motion was not timely, being made on the day of trial. On this record, the trial courts denial of the motion to withdraw waiver of jury trial was not an abuse of discretion.

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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] All statutory references are to the Penal Code.

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

[3] Defendants reply brief contains the passing suggestion that Tryfman provided ineffective assistance of counsel at trial. He does not set this distinct argument out under a separate heading and does not cite any authority, tethered to the facts of this case, to support his conclusory point. This deficient presentation constitutes a forfeiture of the claim. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4, and authorities cited therein.)

[4] This conclusion refutes defendants suggestion that his general confusion and uncertainty about the proceedings indicates he did not fully understand the right he gave up.

[5] Defendants sub silencio argument that he properly sought to withdraw his waiver of jury trial because he had realized the trial judge was biased against him finds no support in the record.