P. v. Alam

Filed 1/30/07 P. v. Alam CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

William Hollingsworth, Judge. Dismissed.

Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

In August of 2002, a jury found Waheed Alam (Alam) guilty of arson in violation of Penal Code section 451, subdivision (c).^[1] The trial court sentenced Alam to six years in state prison. Alam appealed and this court affirmed the judgment (People v. Alam (Nov. 19, 2003, B162966 [nonpub. opn.]). On March 21, 2006, Alam filed in the trial court a motion to vacate the judgment in the arson case. The trial court denied the motion on April 27, 2006. Alam now appeals the trial courts order denying his motion to vacate the judgment. We conclude, because the order from which Alam seeks relief is not appealable, the appeal must be dismissed. (See People v. Gallardo (2000) 77 Cal.App.4th 971, 980-985, 989 (Gallardo); 1237, subd. (b).)

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

As stated in this courts November 2003 opinion, the facts at trial established that Sayed Shah (Shah) and Alam had been roommates for four years. In May of 2001, Shah moved out of the apartment he shared with Alam to Lomita to be closer to a video store specializing in Indian movies that Shah operated from 6:00 to 10:00 p.m. after he finished work as a baggage handler at LAX. Alam had done much of the work preparing the video shop to open and Shah had not yet paid Alam for all the work. Shah had not had any previous problems with Alam.

On June 23 or 24, 2001, Shah went to Alams apartment and Alams new roommate allowed Shah to take a toolbox which had originally belonged to Shah but had been used primarily by Alam. Some tools purchased by Alam had also been placed in the toolbox. On June 24, 2001, Alam called Shah at the video shop and requested the toolbox. Shah told Alam to wait until the video shop closed and he would give it to him. Alam arrived at 7:00 p.m. and argued with Shah about the toolbox and the work Alam had done for Shah. Shah told Alam he would go to his apartment and get the toolbox when there were no customers in the store.

Alam went to his car, returned with a container of gasoline and started to sprinkle gasoline around the video store. A female customer testified drops of gasoline landed on her arm and she ran from the store with her child. Alam threw a match and ignited the gasoline, then went toward Shah, poured gasoline over Shahs head and threw lit matches at him. When Shah tried to leave the store, Alam pushed him back, then held the only door to the video store closed from the outside. The husband of the female customer forcefully knocked Alam from the door allowing Shah to leave the store. Shahs pant leg had started to burn and he had blisters on his leg.

Both Shah and Alam called 911. Alam admitted at the scene and in a subsequent interview that he had set fire to the shop. At trial, Alam testified he felt Shah had taken his gift of the toolbox from Alam and now Alam was going to take the gift of his work on the video shop from Shah. Alam said he was going to break the shop with a hammer but Shah suggested he burn the shop, then set some matches on the counter. Alam admitted he held Shah inside the burning shop but stated he intended to open the door when the flames reached Shah. Alam claimed he voluntarily opened the door to allow Shah to escape and denied he had been pushed aside by anyone.

2. Procedural History.

On December 13, 2001, Alam was charged by information with attempted murder ( 664/187, subd. (a)) and arson of a structure ( 451, subd. (c)).

At a number of pretrial proceedings, Alam either sought the substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) or self-representation pursuant to Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). The trial court denied Alams Marsden motions but, at proceedings held on January 28, 2002, granted Alams request to represent himself. The trial court then appointed stand-by counsel to assist Alam.

The People announced they were ready to proceed on March 21, 2002. Alam indicated he was not ready for trial and, after arguing numerous unsuccessful motions, became disruptive, insisted on being allowed to speak to the audience in the courtroom and had to be removed by the bailiff. The following day, March 22, 2002, Alam was deemed ready for trial. He then relinquished his right to self-representation and the trial court appointed stand-by counsel to represent him.

The matter was called for trial on May 23, 2002. Alam again requested substitution of counsel pursuant to Marsden. The trial court denied Alams Marsden motion and a panel of jurors was sworn to try the case.

On May 28, 2002, as the prosecutor was about to make an opening statement, defense counsel requested a side bar conference. Defense counsel indicated Alam now wished to represent himself due to a disagreement over trial tactics. Defense counsel noted Alam was ready to proceed to trial and had prepared several pages of questions for the witnesses. Alam confirmed he wished to represent himself. The trial court advised Alam against self-representation but indicated that, if Alam insisted, the trial court would grant Alams request. The trial court then asked Alam if he was aware of the penalty he faced if convicted. Alam responded: That is my destiny. The trial court again asked if Alam was aware of the penalty. Alam replied: Let the sentencing and what penalties I will suffer be set aside. Lets just talk about June 24th, what happened on that date. When the trial court again asked Alam if he was aware of the penalty he faced Alam replied, You are all trying to stop me from speaking the truth. The trial court responded, I see. Well, then I can only conclude that you have no idea of the possible penalty that you are facing and so you will not be competent to represent yourself. Your motion to represent yourself is denied.

The matter proceeded with Alam represented by counsel. However, the trial resulted in a mistrial after a dispute developed as to whether all of Shahs testimony had been interpreted properly and the People disclosed they had located the female customer who had been inside the shop and her husband, the man who had knocked Alam from the door.

A second trial, during which Alam was represented by counsel, commenced on July 30, 2002. Alam made outbursts during the prosecutors opening statement and was removed from the courtroom. On July 31, 2002, Alam promised to comply with the trial courts orders and attended the balance of the trial.

A jury acquitted Alam of the charge of attempted murder but found him guilty of arson of a structure. The trial court then sentenced Alam to the upper term of six years in prison.

Alam timely filed a notice of appeal. In an opinion filed on November 19, 2003, this court determined, since Alam had not moved to represent himself until after the jury had been empanelled, his Faretta motion had been untimely. Accordingly, whether to grant or deny the motion had been within the trial courts discretion. Although this court concluded the trial courts determination Alam was not competent to waive his right to counsel could not withstand scrutiny, since the courts denial of Alams Faretta motion was valid for other, legitimate reasons, the ruling would stand. This court determined that, based on Alams conduct, the trial court appropriately could conclude Alam made the Faretta request not out of a genuine desire to represent himself, but for the purpose of disruption or delay. A trial court properly may deny an untimely Faretta request on that basis alone. In addition, even if for the sake of discussion it was concluded the trial court had committed error, Alam could show no prejudice. The evidence he committed arson was overwhelming and the trial court had noted Alam was quite fortunate the jury acquitted him of attempted murder, the conviction of which would have exposed him to a life sentence.

On March 21, 2006, Alam filed in the trial court a motion to vacate the judgment in the arson case. Alam argued he had been incompetent to stand trial and that his trial counsel had been ineffective for failing to conduct a competency hearing. On April 27, 2006, the trial court denied Alams motion to vacate the judgment, indicating the issues raised in the motion should have been presented on appeal.

On June 13, 2006, Alam timely filed a notice of appeal from the trial courts ruling. We appointed counsel to represent Alam.

CONTENTIONS

After examination of the record, Alams appointed appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated November 28, 2006, the clerk of this court advised Alam to submit within 30 days any contention, ground of appeal or argument he wished this court to consider. Alam responded, asserting the trial court erred in denying his motion to vacate the judgment because (1) there is substantial evidence he was incompetent to stand trial, and (2) such evidence indicates his trial counsel was ineffective for failing to request a competency hearing.

DISCUSSION

1. Alam fails to demonstrate reversible error.

With regard to his contention he was not competent to stand trial, we note that on direct appeal from his conviction of arson Alam argued he had been, not only competent to stand trial, but able to represent himself. This court agreed a review of the record on appeal indicated Alam was competent. In its November 2003 opinion this court specifically stated Alam previously had represented himself and . . . was competent to stand trial.

Alam directs this courts attention to a letter from a psychiatrist dated August 1, 2001 in which the doctor indicated he was of the opinion Alam was presently not competent to stand trial and should be remanded to a secured, locked-up, forensic psychiatric facility such as the Patton State Hospital. (Italics added.) Although Alam could rely on this evidence to argue he was incompetent on August 1, 2001, the letter does not demonstrate Alam was incompetent to stand trial in January, May or July of 2002.

Alams contention his trial counsel was ineffective for failing to request a competency hearing is also without merit. In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)

Our review of the record submitted by Alam fails to show his trial counsel did not adequately represent him. Moreover, even if counsel had been somehow deficient, Alam suffered no prejudice. As noted above, the evidence Alam committed arson was overwhelming. In addition, it is reasonable to attribute at least some of Alams good fortune in being acquitted of the charge of attempted murder to his counsels proficiency.

2. Alams appeal must be dismissed.

[A]n order is not appealable unless declared to be so by the Constitution or by statute. [Citations.] [Citation.] Stated simply, a criminal appeal by the defendant may be taken only from a final judgment of conviction ( 1237, subd. (a), 1466, subd. (2)(A)) or from any order made after judgment, affecting the substantial rights of the party ( 1237, subd. (b), 1466, subd. (2)(B)). (Gallardo, supra, 77 Cal.App.4th at p. 980.

In Gallardo, the court recognized that [a] ruling denying a motion to vacate the judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. [Citation.] (Gallardo, supra, 77 Cal.App.4th at pp. 980-981, fn. omitted.) Ordinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. [Citations.] In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited [sic] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.] The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction, or whether such matters should have been but were not so presented. [Citations.] (People v. Thomas (1959) 52 Cal.2d 521, 527; see also Gallardo, supra, 77 Cal.App.4th at p. 981.

Although there are several exceptions to this general rule (e.g. when the record on appeal would not have shown the error and when the judgment is void), Alams case does not fit within them. His contention he was incompetent to stand trial could have been argued on direct appeal from the judgment. The record he submitted in support of the present appeal establishes that, at the time of trial, trial counsel and the trial court were well aware of the fact Alam had seen a psychiatrist. A portion of the trial transcript submitted by Alam reveals a side bar conference between Alams counsel and the trial court in which counsel indicates he and Alam are in disagreement with regard to whether the psychiatrist who interviewed Alam before trial should be called to testify. When it was determined all the statements Alam wished to elicit from the psychiatrist amounted to inadmissible hearsay, it was decided the psychiatrist would not be called as a witness.

It has been suggested that, [i]n a myriad of situations, [including those such as Alams], the defendant may seek to have judgment vacated by a petition for writ of habeas corpus, an all-purpose remedy. (Gallardo, supra, 77 Cal.App.4th at p. 983.) However, even if we consider Alams appeal from the motion to vacate the judgment as a petition for writ of habeas corpus, he cannot prevail. As previously indicated, Alams claims he was incompetent to stand trial and that his trial counsel was ineffective have no merit.

REVIEW ON APPEAL

We have examined the entire record submitted by Alam and are satisfied that Alams counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) Since the order from which Alam seeks relief is not appealable, the appeal must be dismissed. (See Gallardo, supra, 77 Cal.App.4th at p. 989.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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