P. v. Jacobson

Filed 8/17/07 P. v. Jacobson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Charles P. McNutt, Judge.

Matthew Alger, under appointment by the Court of Appeal, and David W. Jacobson in pro. per. for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

PROCEDURAL AND FACTUAL HISTORY

At approximately 1:24 p.m. on September 29, 2005, during a parole search appellant David Jacobson became combative and was eventually arrested by Bakersfield police officers at his residence. While putting handcuffs on Jacobson the officers found a glass smoking pipe in his hand and a baggie containing .34 grams of cocaine on the bed next to him. On March 22, 2006, a jury convicted Jacobson of possession of cocaine (Health & Saf. Code, 11350, subd. (a))^[1]and possession of narcotics paraphernalia ( 11364). Three prior prison term enhancements (Pen. Code, 667.5, subd. (b)) were also were also found true.

On April 20, 2006, the court placed Jacobson on Proposition 36 probation (Pen. Code, 1210 -1210.5) for three years.

On June 29, 2006, the probation department filed a letter alleging that Jacobson violated his probation by failing to provide a urine sample and committing new law violations.

On August 3, 2006, prior to the start of the probation violation hearing, the court conducted an in camera hearing on Jacobsons Marsden^[2]motion. During the hearing Jacobson stated he wanted to relieve his public defender, Valerie Harrison, because she would not present a discriminatory enforcement defense.

At the conclusion of the hearing the court denied Jacobsons Marsden motion and then conducted a hearing on the alleged probation violation. During this hearing Probation Officer Michael Mata testified that Jacobson violated his probation by his failure to provide a urine sample for analysis on May 2, 2006 and on another occasion. The samples he did provide tested positive for cocaine.

Randy Force testified that he was the worship leader at the Power House Church. On May 4, 2006, a guitar valued at approximately $3,200 was taken during a burglary at the church. Later that day, about a half hour after reporting the guitar stolen, Force located the guitar at a pawn shop a block away from the church.

Pablo Alaniz testified that he worked at the pawn shop where the guitar was found. On May 6, 2006, he bought a guitar from a person he identified in court as Jacobson. Jacobson told Alaniz he got the guitar from either Texas or Arizona. A few weeks later the shop received a report that the guitar was reported stolen.

At the conclusion of the hearing the court found that Jacobson violated his probation by committing a non-drug-related offense and terminated his Proposition 36 probation.

On September 8, 2006, Jacobson renewed his Marsden motion. After he again complained about his defense counsels failure to pursue certain defense theories, the court denied the motion but nevertheless agreed to appoint advisory counsel from the Indigent Defense Program (IDP) to assist him in determining whether or not he had a basis to appeal or file a writ at that point in the proceedings; the court also retained the public defenders office as Jacobsons attorney of record.

On November 14, 2006, Attorney McNamara from the IDP advised the court that he did not find any grounds for relief from the courts findings at the probation revocation hearing. The court then reappointed the public defenders office to represent Jacobson. After the public defenders office declared a conflict, the court relieved that office and appointed Alternate Defense Counsel Michael Whittington to represent Jacobson. The matter was also continued to allow Whittington to investigate whether to file a motion for a new revocation hearing.

On January 4, 2007, the court denied Jacobsons Faretta^[3]and Marsden motions before striking two prior prison term enhancements and sentencing Jacobson to an aggregate three-year term, the middle term of two years on his possession of cocaine conviction and a one-year prior prison term enhancement. During the hearing the court also denied Jacobsons motion for a new revocation hearing.

DISCUSSION

Introduction

Jacobsons appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a supplemental brief filed on May 14, 2007, Jacobson raises the following issues. Jacobson apparently believes that he could not be prosecuted for possessing the stolen guitar if it had not been reported stolen by the time he sold it to the pawn shop. Thus, he contends that the testimonies of Force and pawnshop worker Alaniz that the guitar was reported stolen on May 4, 2004, before Jacobson sold it to the pawn shop, are contradicted by the police report relating to the burglary of the church and Forces testimony at Jacobsons parole revocation hearing that the guitar was not reported stolen until after Jacobson sold it to the pawn shop.^[4]

Jacobson also contends that the parole revocation hearing disclosed that Force had a criminal history which could have been used to impeach Forces claim that he reported the guitar stolen prior to finding it at the pawn shop and that the prosecution did not disclose Forces criminal history to the defense.

Additionally, Jacobson claims that being stopped and questioned three times in an hour in the days before his arrest in this matter shows that the revocation of probation was pursued in retaliation for Jacobsons filing complaints, appeals, and civil actions against the Bakersfield Police Department, the Department of Corrections and Rehabilitation, and the Kern County District Attorneys Office.

Jacobson also appears to contend the court: 1) erred on January 4, 2007, when it denied his motion for a new probation revocation hearing without looking at his moving papers; and 2) was precluded from using his possession of the stolen guitar to violate his probation because the prosecutor dismissed the possession of stolen property charge against him.

Finally, Jacobson contends that defense counsel Harrison provided ineffective representation because she failed to: 1) confront Force and Alaniz with evidence that contradicted their testimonies at the probation revocation hearing that the guitar was reported stolen prior to being found at the pawn shop; 2) pursue the prosecutions withholding of witness Forces criminal record from the defense; 3) attempt to obtain police radio records that would demonstrate that Jacobson was stopped and questioned three times in one hour on September 27-28, 2005, by Bakersfield police officers, and 4) pursue a motion to dismiss based on selective prosecution. We will reject this contention.

The Challenge to the Sufficiency of the Evidence

The offense of possession of stolen property does not require proof that the property had been reported stolen to the police. Nor must the prosecution show that an item was reported stolen in order to show that the defendant was aware it was stolen. Instead, to sustain a conviction for receiving stolen property, the prosecution must prove only that: (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) Thus, whether the church guitar had been reported stolen prior to Jacobsons selling it to the pawn shop was irrelevant in proving that he knowingly possessed the stolen guitar.

Further, in order to convict a defendant of a criminal offense, the prosecutor must prove beyond a reasonable doubt that the defendant committed the charged offense (CALJIC No. 2.90). In contrast, a probation violation need only be proven by a preponderance of the evidence (People v. Rodriguez (1990) 51 Cal.3d 437, 441), a much lower standard of proof. Thus, the failure to prosecute Jacobson for possession of stolen property did not prevent the prosecutor from alleging or the court from finding that Jacobson violated his probation by committing this offense, which required a showing by only a preponderance of the evidence that Jacobson possessed stolen property.

The Discriminatory Prosecution Claim

In Baluyut v. Superior Court (1996) 12 Cal.4th 826, 831-832, the court discussed the elements of discriminatory prosecution:

Although referred to for convenience as a defense, a defendant's claim of discriminatory prosecution goes not to the nature of the charged offense, but to a defect of constitutional dimension in the initiation of the prosecution. [Murgia v. Municipal Court (Murgia) (1975) 15 Cal.3d 286, 293, fn. 4] The defect lies in the denial of equal protection to persons who are singled out for a prosecution that is deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. [Citation.] When a defendant establishes the elements of discriminatory prosecution, the action must be dismissed even if a serious crime is charged unless the People establish a compelling reason for the selective enforcement. [Citations.]

Unequal treatment which results simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement. [Citations.] However, the unlawful administration by state officers of a state statute that is fair on its face, which results in unequal application to persons who are entitled to be treated alike, denies equal protection if it is the product of intentional or purposeful discrimination. [Citation.]

In Murgia this court explained the showing necessary to establish discriminatory prosecution: [I]n order to establish a claim of discriminatory enforcement a defendant must demonstrate that he has been deliberately singled out for prosecution on the basis of some invidious criterion. Because the particular defendant, unlike similarly situated individuals, suffers prosecution simply as the subject of invidious discrimination, such defendant is very much the direct victim of the discriminatory enforcement practice. Under these circumstances, discriminatory prosecution becomes a compelling ground for dismissal of the criminal charge, since the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities. [Citation.]

. . . To establish the defense, the defendant must prove: (1) that he has been deliberately singled out for prosecution on the basis of some invidious criterion; and (2) that the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities. (Baluyut v. Superior Court, supra, 12 Cal.4th at pp. 831-832, italics added.)

Here, Jacobson intended to show that he was the victim of a discriminatory prosecution that included his probation revocation hearing by introducing evidence that he was stopped three times in an hour and questioned in the days before he was arrested in the underlying matter. However, even if Jacobson could have shown that that he was stopped three times in an hour, this alone would have provided an insufficient basis for the court to conclude he was being discriminated against for complaining against police authorities.

The Courts Alleged Failure to Consider

Jacobsons Motion for a New Probation Hearing

It is settled that the attorney of record has the exclusive right to appear in court for his or her client and to control the court proceedings, so that neither the party himself nor another attorney can be recognized by the court in the conduct or disposition of the case. [Citation.] (People v. Brown (1986) 179 Cal.App.3d 207, 214.) Further, it is improper to permit a defendant to bring his motion in pro. per. where, as here, he is still represented by counsel and has not waived his right to counsel. (Id. at pp. 214-215.) Accordingly, we also reject Jacobsons contention that the court erred by its failure to consider his pro. per. motion for a new probation revocation hearing.

The Alleged Failure to Disclose Forces Felony Conviction

A prosecutor is required to disclose [t]he existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. (Pen. Code, 1054.1, subd. (d).) However, Jacobsons suggestion that the prosecutor here engaged in misconduct by failing to disclose the criminal history of witness Force is not properly before us because it relies on information outside of the record. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12 [[t]he scope of an appeal is, of course, limited to the record of the proceedings below].) Further, even if Jacobsons claim did not rely on information outside the record, we would nevertheless find this issue not cognizable on appeal because Jacobson forfeited his right to receive any criminal history of witness Force by his failure to timely assert it in the trial court. (People v. Barnum (2003) 29 Cal.4th 1210, 1224.)

The Ineffective Assistance of Counsel Claim

In considering a claim of ineffective assistance of counsel, it is not necessary to determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trials outcome; the defendant must demonstrate a reasonable probability that absent the errors the result would have been different. [Citations.] (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754.) Here, Jacobson did not dispute the prosecution evidence showing that he was in possession of the stolen property within hours (or days) of when it was stolen from the church. Nor did he dispute employee Alanizs testimony that Jacobson told him he obtained the guitar in Arizona or Texas, a statement that the court could reasonably find was patently false because the guitar had been stolen so recently from the church. Further, since these undisputed facts amply support the courts finding that Jacobson possessed stolen property, we conclude it is not reasonably probable he would have received a more favorable result even if his defense counsel had confronted Force with the contradictory statements regarding when he reported that the guitar had been stolen.

Similarly, even assuming that defense counsel had obtained Forces criminal record from the prosecutor and that it would have disclosed that Force had a felony conviction which could have been used to impeach Force, for the reasons discussed above we would find that the failure to get Forces criminal record was harmless. Nor was Jacobson prejudiced by defense counsels failure to obtain police records to support a motion to dismiss for selective prosecution or by defense counsels failure to make the motion because on this record any such motion would surely have been denied on the merits. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091-1092 [defense counsel has no duty to make futile objections or motions].)

Further, following independent review of the record, we find that no reasonably arguable factual or legal issues exist. Nevertheless, we note that Jacobsons abstract of judgment contains an error in that it indicates that Jacobson was convicted of violating section 11377, subdivision (a) when he was in fact convicted of violating section 11350 subdivision (a).

DISPOSITION

The trial court is directed to issue an amended abstract of judgment that correctly indicates that Jacobson was convicted of violating section 11350, subdivision (a), not section 11377, subdivision (a), and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

Publication Courtesy of San Diego County Legal Resource Directory.

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

^* Before Wiseman, Acting P. J., Cornell, J., and Kane, J.

^[1]All further statutory references are to the Health and Safety Code, unless otherwise indicated.

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

^[3]Faretta v. California (1975) 422 U.S. 806.

^[4] As noted above in the factual summary, Alaniz actually testified that he did not learn the guitar was stolen until weeks later when the pawn shop received a report to that effect.