P. v. Blagg

Filed 3/8/07 P. v. Blagg CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Ruffo Espinosa, Jr., Judge. Affirmed.

Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant John Blagg was convicted, following a jury trial, of one count of first degree burglary in violation of Penal Code section 459 and one count of receiving stolen property in violation of section 496, subdivision (a).[1] Appellant admitted that he had suffered a prior serious felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "three strikes" law) and section 667, subdivision (a). The trial court sentenced appellant to a total term of 14 years and 4 months in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion for self-representation, consolidating the burglary and receiving stolen property counts and denying the public defender's motion for a mistrial and appointment of new counsel. We affirm the judgment of conviction.

Facts

On December 11, 2004, at about 5:00 p.m., Haig Youredjian left his home in Studio City. When he returned at about 7:00 or 7:30 p.m., he found an intruder, later identified as appellant, in his kitchen. Appellant ran out of the house through the back door.

Youredjian went to his car, drove down the street and tried to call 911 on his cell phone. He drove back past his house and soon thereafter noticed a small white Nissan or Toyota speeding behind him. He recognized appellant as the driver. Appellant stopped and Youredjian kept driving.

Youredjian was able to speak to the 911 operator. He drove back to his house, saw appellant's car parked nearby, then saw appellant walking down his front porch steps. Youredjian honked his horn and asked appellant what he was doing at the house. Appellant replied: "Get out of here. There's somebody in your house. I'm just checking out the scene. Get out of here." Appellant got into his car.

Youredjian read the license plate number of appellant's car (5HIG028) to the 911 operator. Appellant drove away.

Youredjian later returned to his house with the police. He noticed that the glass in the back door had been broken. The house had been ransacked. A plasma television had been moved. There were pillowcases on the floor with a laptop and other items inside.

On December 15, 2004, Youredjian identified appellant from a six-pack photographic line-up.

Cedric Mempin, an employee of Enterprise Rent-A-Car, testified at trial that appellant had rented a white Nissan Sentra from Enterprise in December 2004. The license plate number was 5HIG028.

On February 16, 2005, Los Angeles Police Detective Steve Bucher assisted in executing a search warrant at appellant's apartment. Police recovered about 200 items from the apartment, including a laptop computer, jewelry, checkbooks, credit card, driver's licenses, and coins.

Two of the checkbooks recovered from appellant's apartment were imprinted with the name of Michael Delucia. Police contacted Delucia, who came to the police station on February 22, 2005 to view some of the property recovered from appellant's apartment. Delucia identified a commemorative silver coin, a silver necklace and a quartz watch as his property, stolen from his home while Delucia and his partner Michael Forero were away on vacation in December 2004.[2] Delucia did not recover all of the items that were taken from his house.

Appellant testified on his own behalf at trial. He admitted that he was currently on probation for a theft-related conviction.

Appellant denied committing a burglary at the Youredjian residence on December 11. He stated that he spent every Saturday night at Frankie's restaurant, arriving between 5:00 p.m. and 7:00 p.m. and staying until closing. A restaurant employee would normally drive him home.

Appellant acknowledged that he rented a white Nissan Sentra in December 2004. He stated that he sometimes allowed two friends to drive this car, and also to stay at his apartment. He denied taking or receiving Delucia's checkbooks. He claimed that the necklace, ring and commemorative coin found in his apartment were his, not Delucia's.

Appellant testified about various illnesses he was suffering from which reduced his strength and ability to get around.

The parties stipulated that if called as a witness, Gino, a waiter at Frankie's restaurant, would testify that appellant regularly came to the restaurant on Friday and Saturday nights and stayed most of the night. Gino would testify that he was not able to recall the particular night of December 11, 2004.

Discussion

1. Motion for self-representation

Appellant contends that the trial court erred in denying his motion for self-representation. We see no abuse of discretion.

Appellant made his motion for self-representation on the date set for trial, a few minutes before jury selection was set to commence. His motion was untimely under California law. (People v. Valdez (2004) 32 Cal.4th 73, 102 [motion for self-representation made "moments before jury selection was set to begin" was untimely].)

"When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion. [Citation.] In exercising this discretion, the trial court should consider factors such as the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. [Citations.]" (People v. Valdez, supra, 32 Cal.4th at p. 102 [internal quotation marks omitted].)

Here, the trial court first asked appellant to explain the reasons for his request. Appellant contended that his appointed counsel Ms. Stearns, did not talk to him to get his input on the case, that she was unable to answer questions he had about the case and that he was not provided with copies of discovery. He also made it clear that he was not happy with counsel's refusal to file a motion to disqualify the judge pursuant to Code of Civil Procedure section 170.6.

Counsel acknowledged that she had not visited appellant in jail because she had been ill for the ten days proceeding the trial. She explained that she had attempted to discuss the case with appellant on at least two other occasions, but that all he wanted to talk about was Mr. Gottlieb, his former counsel.

The trial court questioned appellant's counsel about the facts of the case. The court also asked counsel about why she had not requested an eyewitness identification expert, yet agreed that it would not have appointed an eyewitness identification expert under the facts of this case. The court found that counsel was prepared and ready to proceed. Thus, there was no problem with the quality of appellant's counsel's representation.

As for proclivity to substitute counsel, appellant had previously elected to represent himself on the burglary charge rather than accept representation by Mr. Gottlieb. The receiving stolen property charges were filed separately, and appellant accepted representation for that case. Once the two cases were consolidated, appellant gave up his pro per status on the burglary so that Ms. Stearns could represent him in that case as well. He did so only after the denial of his repeated requests that an attorney other than the public defender be appointed to represent him.

The burglary case had been filed seven months before the motion. Thus, the case was advanced. The case was ready for trial on the day that appellant made his motion. As the trial court noted: "This is the second time that we set a jury aside to start this trial, and at this point the jurors are waiting outside."

Although appellant did not expressly ask for a continuance, his comments made it clear that there were many tasks that he believed needed to be done before trial. Thus, disruption and delay would have been inevitable if appellant had been allowed to represent himself.

All of the above factors weigh in varying degrees against granting appellant self-representation. Accordingly, we see no abuse of discretion in the trial court's denial of the motion.

2. Motion to consolidate

In September 2005, the prosecution moved to consolidate the two cases against appellant. One case involved the first degree burglary of the Youredjian residence (LA048344), the other receiving stolen property based on the property found in appellant's apartment.[3] Appellant contends that the trial court erred in granting this motion. We see no abuse of discretion by the trial court.

"The law prefers consolidation of charges." (People v. Ochoa (2001) 26 Cal.4th 398, 423.) Section 954 permits joinder of offenses if they are of the same class of crimes. ( 954.) Burglary and receiving stolen property are crimes against property and thus of the same class of crimes. (People v. Grant (2003) 113 Cal.App.4th 579, 586.)

When, as here, joinder is statutorily allowed, "defendant must show that a substantial danger of prejudice compelled severance. [Citation.] We ask whether the denial of severance was an abuse of discretion, given the record before the trial court. [Citation.] A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process. [Citations.]" (People v. Stitely (2005) 35 Cal.4th 514, 531.)

"Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." (People v. Ochoa,supra, 26 Cal.4th at p. 423 [internal quotation marks and citations omitted].)

Appellant contends there was substantial danger of prejudice because the evidence was not cross-admissible, the burglary charge was "inflammatory" and "horrific," and the burglary case was weak while the receiving stolen property case was strong. We do not agree.

The burglary charge was in no way horrific or inflammatory. Appellant did not use weapons or violence. He did not seek a confrontation with the home-owner. It appears to be only chance that the home-owner returned home while appellant was present.

We see nothing weak about the burglary case. The victim had ample opportunity to see appellant, and identified him from a six-pack photographic line-up. The victim gave the 911 operator the license plate of a car which turned out to have been rented by appellant at that time. Appellant's alibi defense was weak. The waiter testified only that appellant regularly came to the restaurant on Friday and Saturday nights and stayed most of the night. The waiter did not provide a typical arrival time, and did not recall the particular night of December 11, 2004. It certainly seems possible for appellant to have committed a burglary at 7 or 7:30 p.m. and gone to a restaurant afterwards.

Appellant is correct that the evidence of the two crimes was not cross-admissible. Cross-admissibility is not required for joinder of crimes of the same class ( 954.1.) "Although cross-admissibility ordinarily dispels any inference of prejudice [citation], the absence of cross-admissibility does not by itself demonstrate prejudice." (People v. Mendoza (2000) 24 Cal.4th 130, 161.)

Appellant further contends that even if the trial court's ruling was correct when made, the joinder actually resulted in "gross unfairness" amounting to a denial of due process.

He contends that the prosecutor impermissibly argued that appellant was guilty of burglary because he had also possessed stolen property. He relies on the following argument by the prosecutor: "All I have to say is that this defendant is one heck of an unlucky guy. Boy, he sure had a streak of bad luck. [] First, of all, he's misidentified doing this burglary. Someone identified him, the wrong person in their house. He happens to do a six pack, misidentifies him once again. [] And then to continue with his streak of bad luck, they do a search warrant on his house, and he happens to have somebody's stolen checks in this house that some unknown person planted in there. What a string of bad luck that this defendant has."

We understand the prosecutor's statements as a comment on appellant's defense. The remarks actually attempt to differentiate the two crimes more than to link them. Appellant's defense was that two friends had access to his apartment and rental car, and that one of them was the burglar and possessor of stolen property. This is a cohesive defense. The prosecutor was attempting to make it less so. The prosecutor was not arguing that appellant must have been guilty of the burglary because he was guilty of receiving stolen property. We see no gross unfairness to appellant.[4]

3. Conflict of interest

Appellant contends that trial court erred when it denied his trial counsel's request for a mistrial and appointment of new counsel on the ground of a conflict of interest, and that this error resulted in a violation of his state and federal constitutional rights. We do not agree.

"The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest. Conflicts of interest may arise in various factual settings. Broadly, they embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests." (People v. Roldan (2005) 35 Cal.4th 646, 673 [internal quotation marks and citations omitted].)

"Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. This presumption arises, however, only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance. . . . An actual conflict of interest means a conflict that affected counsel's performance - as opposed to a mere theoretical division of loyalties." (People v. Roldan, supra, 35 Cal.4th at p. 673 [internal quotation marks and citations omitted].)

"To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an informed speculation that the asserted conflict adversely affected counsel's performance." (People v. Roldan, supra, 35 Cal.4th at p. 674 [internal quotation marks and citations omitted].)

Appellant contends that his counsel's declaration of a conflict was all that was required to establish a conflict of interest, and that the trial court could not make any inquiry or make its own finding on whether a conflict existed. The law, including the cased cited by appellant, is to the contrary. Appellant relies on Uhl v. Municipal Court (1974) 37 Cal.App.3d 526 and Aceves v. Superior Court (1996) 51 Cal.App.4th 584. As the Court explained in Aceves, nothing in Uhl requires the trial court to simply accept a sweeping claim of conflict by counsel. "Uhl does not abrogate the court's duty of inquiry or the attorney's obligation to provide information about the conflict. It simply limits the range of inquiry to prevent the required disclosure of communications that are confidential but form the factual basis of the conflict. The trial court still has a duty to explore the conflict, and counsel has a corresponding duty to respond, and to describe the general nature, as fully as possible but within the confines of privilege." (Aceves v. Superior Court, supra, 51 Cal.App.4th at pp. 592-593.)

Here, there was no issue of attorney-client privilege intertwined with the conflict declaration. Appellant's counsel stated that she was declaring a conflict because "one of the victims of the 496 receiving counts is related to one of my colleagues. . . . It's a colleague that I know very well who is only a few doors down from my own office in the downtown location." She added that the prosecutor intended to call the victim as a witness and that "I personally felt somewhat uncomfortable by this." The court clarified that the victim, Mr. Forero, was the brother-in-law of the colleague.

The trial court then stated: "I think that we can both agree that there's no actual conflict in this case." Appellant's counsel agreed: "I don't think there's an actual conflict, but it's the potentiality of the conflict that I'm uncomfortable with." We agree that there was no actual conflict here.

There is nothing to show that Ms. Stearns "actively represented conflicting interests." Ms. Stearns had never met the victim. There is nothing to suggest her work colleague put any pressure on her, positively or negatively, which might have caused her to compromise her representation of appellant. Given that the colleague worked for the Public Defender's Office, the normal expectation would be that the colleague would want appellant to receive a fair trial. Ms. Stearns said nothing to suggest that the situation was otherwise. Further, once Ms. Stearns revealed her colleague's relationship with the victim, the court ordered Ms. Stearns not to discuss the case with her colleague.

When asked to explain the potential conflict, appellant's counsel replied that she was concerned that "could there be an argument that I, because of that relationship, even though I do not have any personal relationship with Mr. Forero, would [appellant] be assured that I was giving him my utmost? And of course I would do everything I could do, but that's the potential for conflict." Thus, Ms. Stearns herself felt that she could effectively represent appellant. Her concern was with the appearance of a conflict, and a possible loss of confidence by appellant.

Further, under state law, a defendant must show not only a potential conflict but also that the record supports an informed speculation that the asserted conflict adversely affected counsel's performance. We see nothing in the record to support such an informed speculation, and appellant suggests nothing. The prosecution did not call Mr. Forero as a witness. Ms. Stearns aggressively cross-examined Mr. Delucia (Mr. Forero's partner) on his claim that the silver jewelry found in appellant's house was his. Thus, even if there was a potential conflict, it remained just that, potential, and did not adversely affect Ms. Stearns's performance.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] All further statutory references are to the Penal Code unless otherwise specified. The trial court granted appellant's motion pursuant to section 1118.1 to dismiss a second count of receiving stolen property.

[2] Delucia had earlier reported the burglary to police and provided them with a list of stolen items.

[3] Originally, appellant was charged with two counts of receiving stolen property belonging to Michael Delucia and his partner Michael Forero and to Jia-Ming Liu. The count involving stolen property of Liu was ultimately dismissed for lack of evidence.

[4] Appellant relies on People v. Grant, supra, 113 Cal.App.4th at p. 588 to support his argument of gross unfairness. In that case, the court gave four reasons for finding that joinder had resulted in gross unfairness: (1) the evidence was not cross-admissible; (2) the prosecutor urged the jury to infer that because the defendant possessed stolen property, he must have committed the burglary as well; (3) the trial court refused to give an instruction on the non-cross-admissibility of the evidence; and (4) the evidence on the two counts was similar, but the evidence on the burglary charge was weaker. The only similarity between this case and Grant is the lack of cross-admissibility. As we discuss, supra, that alone does not show prejudice.