In re Franzman

Filed 6/21/07 In re Franzman CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Original proceedings; petition for a writ of habeas corpus after judgment of the Superior Court of Orange County, Elaine Streger, Judge. Petition denied.

Law Offices of Randell A. Monaco and Randell A. Monaco for Petitioner.

Tony Rackauckas, District Attorney, and Gregory J. Robischon, Assistant District Attorney, for Respondent.

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After this court summarily denied the petition of Richard H. Fanzman, Jr., for a writ of habeas corpus, petitioner sought review in the Supreme Court of California. Citing Article VI, section 14 of the California Constitution and People v. Romero (1994) 8 Cal.4th 728, 740, the Supreme Court granted the petition and transferred the matter back to this court, ordering us to vacate our denial order of November 7, 2006 and proceed to a disposition of the matter by means of a written opinion with reasons stated. In accordance with the courts order, we heard oral argument and reconsidered our denial but conclude again that the petition should be denied.

The underlying issues in this case involve petitioners misdemeanor conviction for failure to provide support for his minor children (Pen. Code, 270; all further statutory references are to this code) and disobeying a court order ( 166, subd. (a)(4)). Petitioner contends his constitutional right to present a defense was violated by the trial courts refusal to allow him to introduce evidence he had complied with a support order by quitclaiming a house to the mother of his minor children.

He further argues his right to due process was violated by the misconduct of two prosecutors who, he contends, colluded with each other in bad faith for the purpose of gaining an unfair advantage. The prosecutors allegedly did so by taking inconsistent positions in two separate courts that operated to deprive him of his ability to present a waiver or offset of credits defense in his misdemeanor criminal proceeding.

He claims the prosecutor in a related civil child support collection proceeding represented to the court the civil action should follow the criminal trial to allow petitioner to present his offset defense in the criminal proceeding. But the prosecutor in the criminal action took the position, which was ultimately adopted by the court, that such evidence should be excluded on the basis it was irrelevant. Despite both his claims, he fails to convince us he is entitled to habeas relief.

FACTS

In October 2001 a misdemeanor complaint was filed against petitioner alleging one count of failure to provide support and 12 counts of disobeying a court order. The allegations were based on petitioners failure to pay child support for his two daughters, as ordered by the trial court in 1998.

Before the trial on the misdemeanor charges, a collateral civil case (Tundall v. Franzman (Super. Ct. Orange County, (No. 98P00723)) for failure to make child support payments commenced. Petitioner appeared in pro per along with Deputy District Attorney Robert Gannon on behalf of the prosecution, who argued that the criminal case against petitioner should proceed first. Gannon stated he wanted to avoid any possible accusations that the prosecutors office was trying to use the criminal case to coerce a settlement from petitioner in the civil case. Petitioner had advised he had an offset or prepaid support defense, and the court had instructed petitioner not to address the merits to the extent there were Fifth Amendment self-incrimination implications.

Gannon represented to the court: My position is that the defense should be presented within the context of the criminal proceeding and that [petitioner] has the opportunity to do that and its in two weeks . . . that trial has been set and I have spoken to the deputy thats handling the . . . matter and told her that the position we took in court the last time this was on calendar was that that matter needed to proceed and if . . . theres an offset or agreement that can be presented. The trial court agreed and continued the civil case until after the completion of the criminal matter.

The offset referred to by petitioner was an agreement he made with

Tina Tyndall, the mother of his two children, whom he had never married. In 1987 their relationship began deteriorating, and while still living together, petitioner quitclaimed a house to Tyndall. In August 1987 the parties executed a written agreement in which petitioner acknowledged he had a legal responsibility to pay child support, and that because his employment was unstable, Tyndall wished him to make secure arrangements to support the children. The agreement further provided that in return for the residence, Tyndall will release me from any child support on behalf of [the two children].

In 1995 Tyndall sold the property for approximately $87,000 and received approximately $20,850 in net proceeds, after paying a variety of debts and attorney fees related to the property. In July 1998 Tyndall filed a paternity action against petitioner, and in the following month the trial court issued a support order of $850 per month.

The criminal complaint specified petitioner had failed to pay any child support during parts of 2000 and 2001. Before his criminal trial, Prosecutor Sandra Nassar moved in limine to exclude any evidence that petitioners child support had been prepaid by virtue of the 1987 property transfer. The motion cited People v. Sorensen (1968) 68 Cal.2d 280, 287 for the proposition that a parent may not waive a childs right to support, thereby making such evidence irrelevant. The court granted the motion to exclude any evidence of prepayment.

At the criminal trial, Tyndall testified petitioner told her that he would never pay her child support. Petitioner testified in his own behalf and presented a hardship defense. During his cross-examination he testified he would not have paid child support even if he had the money because Tyndall had been prepaid.

The jury convicted petitioner of all counts. Petitioner was placed on three years probation, which included such conditions as garnishment of wages to pay past child support and 80 days in county jail. Sixty of the days were to be stayed pending completion of probation. The remaining 20 days have never been served because they were stayed pending appeal and were then held in abeyance pending the outcome of the habeas proceedings.

Since being convicted, petitioner has systematically worked his way up through the legal system to challenge his conviction. In December 2003 the Orange County Superior Court Appellate Division affirmed petitioners conviction and rejected his claim that the trial court erred when it excluded evidence of the prepayment agreement as being irrelevant. In October 2004 petitioner filed his first petition for writ of habeas corpus in the superior court, arguing he had been deprived of his due process right to present a defense pursuant to Crane v. Kentucky (1986) 476 U.S. 683 [106 S.Ct. 2142, 90 L.Ed.2d 636]. He also asserted the court erred when it refused to instruct the jury on reasonable mistake of fact. The trial court summarily denied the petition for reasons that the first claim had been rejected on appeal and the second issue could have been raised on appeal.

In February 2005 petitioner filed a second habeas petition in the superior court, which added the claim of prosecutorial misconduct. The trial court summarily denied the petition, finding it to be both untimely and successive.

In March 2005 petitioner filed the instant petition for writ of habeas corpus. He argues he was denied his constitutional right to present a defense when the trial court refused to allow him to present evidence of his waiver of child support through Tyndalls testimony and through documentary evidence in the form of the written quitclaim deed. He further asserts he was deprived of due process of law because Gannon and Nassar attempted to gain an unfair advantage over him through acts of collusion, constituting prosecutorial misconduct.

He contends Gannon advised the court in the civil case that petitioner could use the child support evidence in his criminal case and for that reason it was appropriate to hold the civil case in abeyance. However, based on Nassars opposition in the criminal case to introduction of such evidence on the basis it was not relevant, it was excluded.

We issued an Order to Show Cause and ordered an evidentiary hearing with findings returnable to this court. Judge James Stotler conducted a series of evidentiary hearings during which both parties presented testimony and documentary evidence, including testimony from Gannon, Nassar, and Travis Burch, who was petitioners trial counsel.

The court made a series of detailed findings. It found Gannon and Nassar were credible witnesses; there was no evidence of bad faith or collusion by the prosecutors; and there was no evidence the prosecutors office had promised not to oppose admission of the child support agreement in the criminal case. We quote the courts findings at length: Gannons reason for wanting to continue the civil case until after the criminal case was resolved was simply to avoid any possible accusation that the district attorneys office was using a pending criminal case to effectuate a resolution of the civil case . . . . Consistent with that motive, Gannon [twice] appeared in the civil case and asked that the collateral criminal case go first. He moved to continue the civil case to a later date. In the process, Gannon is of record explaining to [the] Commissioner . . . that his reason in requesting that the family law case be continued so that the criminal case could be resolved first was to avoid any possible accusation that the district attorneys office was using a pending criminal court case to effectuate a resolution of the civil case . . . . This court finds Gannon was a very credible witness in this habeas proceeding. This court finds his action in seeking to continue the civil case so that the criminal case could go first was taken in complete good faith. Considering the testimony of Gannon and . . . Nassar, . . . it is apparent that these two witnesses worked for different branches of the district attorneys office and had little contact with each other in the processing of the two cases. As a result of the testimony of these two witnesses, it is apparent that there was no collusion between Gannon and Nassar in seeking to continue the civil case. Gannon testified fully and completely in the habeas hearing and was subject to extensive direct and cross examination. . . . Gannons testimony in the habeas proceeding established that he acted in complete good faith in seeking to continue the civil case so that the criminal case could go first. Gannon made no promise that the district attorneys office would not oppose admission of the alleged child support

agreement in the criminal case. In essence, he told [the] Commissioner . . . that the issue of admissibility of the child support agreement could be raised and considered in the criminal case. . . . Nassar clearly felt the child support agreement was void as an illegal waiver of child support. She acted as well in good faith in opposing admission of a document she felt was inadmissible. This court finds . . . Nassar also to be credible. The testimony of Gannon and Nassar indicates that there were no deceptive methods used in the family law case to gain an unfair advantage in the criminal case which resulted in a denial of due process. Petitioner was represented in the criminal case by counsel (Travis Burch) who argued for admissibility of the child support agreement. The trial court sustained the prosecutions objection to admissibility of the agreement. The court finds that . . . Nassars eliciting testimony in the criminal case that [petitioner] had said he would never pay child support, if objectionable, was not objected to by petitioners trial counsel. In any event, that is an issue that should have been raised with an adequate record on appeal. The court finds that while the two branches of the district attorneys [office] are part of the same entity, they were not in close communication with one another during the proceedings in the two cases. Moreover, there was no representation by the district attorneys office in the civil case that there would be no opposition by that office to admission of the child support agreement in the criminal case. Having heard the testimony and considered the exhibits and the arguments of counsel, the court finds no evidence of bad faith by either branch of the district attorneys office. The evidence establishes that any action in the civil case was not taken to acquire any unfair advantage in the criminal case. Thus, this court finds no evidence that the prosecution used deceptive methods in the family law case. It necessarily follows, and the court further finds, that the prosecution did not use deceptive methods in the family law case to gain an unfair advantage in the criminal case which resulted in a denial of due process. (Italics added.)

DISCUSSION

Petitioners contention he was denied his constitutional right to present a defense is unpersuasive. The law is clear that a parent may not waive his or her childs entitlement to support. (People v. Sorenson, supra, 68 Cal.2d at p. 287; County of Orange v. Smith (2002) 96 Cal.App.4th 955, 962 [childs right to support cannot be abridged by parents].) Thus, because an agreement to waive child support does not constitute a defense for failure to provide, any evidence petitioner sought to introduce for that purpose was irrelevant to the criminal charges against him.

In support of his claim, petitioner cites Crane v. Kentucky, supra, 476 U.S. 683 for the proposition a defendant is to be provided an opportunity to defend his case. Petitioners reliance is misplaced. While a defendant in a criminal action clearly has the right to present a defense, he or she does not have the right to do so with irrelevant evidence.

As the Supreme Court recognized in Crane, The Constitution leaves to the judges who must make these decisions wide latitude to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues. [Citation.] Moreover, we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliabilityeven if the defendant would

prefer to see that evidence admitted. [Citation.] (Crane v. Kentucky, supra, 476 U.S. at pp. 689-690.)

Generally, application of the ordinary rules of evidence does not impermissibly interfere with the right to present a defense. (People v. Frye (1998) 18 Cal.4th 894, 945; see Taylor v. Illinois (1988) 484 U.S. 400, 410 [108 S.Ct. 646, 98 L.Ed.2d 798] [The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence].) And, while a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his [or her] favor, [t]his does not mean that an unlimited inquiry may be made . . . [citation.] The courts have broad discretion to impose reasonable limits on admission of evidence. (People v. Jennings (1991) 53 Cal.3d 334, 372.)

Thus, the courts finding the evidence was irrelevant and its decision to exclude it from the jury did not deprive petitioner of his right to present a defense.

Petitioners other contention, that Gannon and Nassar committed misconduct by colluding with one another and taking inconsistent positions at trial in an attempt to gain an unfair advantage over him, leaves us equally unpersuaded.

At first blush it seemed there may have been an appearance of impropriety because Gannons comments could have been interpreted to mean that his office would not oppose the admission of evidence of prepaid support. This question led us to order an OSC and require an evidentiary hearing. However, as a result of the evidentiary hearing and the extensive findings made by the court, any ambiguous representations on the record were clarified to the contrary.

We accept as true all evidence supporting the trial judges findings. (In re Adrian R. (2000) 85 Cal.App.4th 448, 452.) Moreover, it is the exclusive province of the trial judge or the jury to determine the credibility of a witness and the truth or falsity upon which a determination depends. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 403.)

Judge Stotler made the factual determination that Gannon and Nassar were credible witnesses, who, as revealed by their testimony, had not engaged in bad faith or collusion or promised not to oppose admission of the child support agreement in the criminal case. Moreover, Judge Stotler specifically found that Gannon testified fully and completely in the habeas hearing and was subject to extensive direct and cross examination.

Petitioner failed to meet his burden to prove the facts upon which he bases his claim for relief. (In re Cudjo (1999) 20 Cal.4th 673, 687.)

DISPOSITION

The petition for a writ of habeas corpus is denied.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

OLEARY, J.

MOORE, J.

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