P. v. Saltzman

Filed 4/18/07 P. v. Saltzman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Michael Saltzman appeals the judgment entered after a jury convicted him of second degree robbery (Pen. Code,^[1] 211), petty theft with a prior conviction ( 484, subd. (a), 666), possession of methadone pills (Health & Saf. Code, 11350, subd. (a)), and possession of metal knuckles ( 12020, subd. (a)(1)). Saltzman admitted the prior conviction for purposes of the petty theft charge and an allegation that he had served a prior prison term ( 667.5, subd. (b).) He was sentenced to four years eight months in state prison. He contends (1) the trial court abused its discretion in denying his motion to sever the robbery and petty theft with a prior count; (2) the court violated his constitutional rights by excluding testimony; (3) the court abused its discretion in denying his request for reappointment of counsel; and (4) he was denied adequate access to the law library. We affirm.

FACTS AND PROCEDURAL HISTORY

On April 18, 2005, Saltzman took four pairs of jeans and two shirts into a fitting room at a Mervyn's department store in Canoga Park. Edgar Ovideo, a loss prevention officer who had seen Saltzman steal from the store before, observed him as he entered the dressing room and later when he came out with only one pair of jeans and the shirts. Saltzman's pants appeared thicker, as if he had something underneath them, and he walked out of the store without buying anything. No clothing was subsequently found in the dressing room. The entire incident was captured on a store security camera tape that was played for the jury.

Ovideo followed Saltzman outside, identified himself, and told him to stop. Saltzman looked back, but continued quickly walking away. Ovideo grabbed Saltzman's arm. Saltzman pulled away and told Ovideo to "back off." Saltzman reached his car and opened the door. After he put his key in the ignition, he attempted to "headbutt" Ovideo, who backed away. After Saltzman drove away, Ovideo filed a police report. The stolen jeans were valued at over $120.

On May 7, 2005, Ovideo saw Saltzman at another Mervyn's store in Northridge and detained him with the assistance of another employee, Jamie Lozano. According to Ovideo, Saltzman told him he had stolen the merchandize from the Canoga Park store and sold it to buy drugs. Ovideo also testified that Saltzman later made the same admission to the police, although one of the responding officers testified that he did not recall Saltzman making any such statements. Saltzman was released, however, apparently because Ovideo had not named Saltzman as a suspect when he filed the police report and Ovideo did not make a citizen's arrest at that time.

Ovideo and Lozano subsequently identified Saltzman from a photographic lineup, and on June 2, 2005, Saltzman was arrested at his residence. Police found a pair of brass knuckles and methadone pills in the garage. Saltzman told them he obtained the pills "from a guy off the street" and that he was addicted to heroin.

DISCUSSION

I.

Motion to Sever

Prior to trial, Saltzman filed a motion pursuant to section 954^[2]to sever trial of the robbery count from the count for possession of methadone. The motion asserted that the trial court should exercise its discretion to sever those counts "in the interests of justice and for good cause shown" as provided by section 954, because the "weaker" robbery charge would be prejudicially "bolstered" by the "stronger" possession charge. At the hearing on the motion, the prosecution stated that there were originally two separate filings (one charging the petty theft with a prior, the other charging the possession of methadone and brass knuckles), but that those cases had been dismissed and combined along with the robbery charge "for court efficiency because they dealt with the same defendant."^[3] The motion was subsequently denied in a minute order.

On appeal, Saltzman contends the trial court abused its discretion by failing to sever the theft and robbery counts from the other counts because the two sets of crimes were not "connected together in their commission" as contemplated by section 954. He further argues that the court should have severed the charges because evidence of the joined charges was not cross-admissible and because "the joinder of a weak, insubstantial petty theft and robbery case with two strong, unrelated counts concerning possession of drugs and a deadly weapon must necessarily have created a 'spillover' effect from the aggregated evidence." He further argues that the error in denying severance violated his state and federal constitutional rights to a fair trial.

Saltzman did not ask the trial court to sever the theft and robbery counts from the others, nor did he allege that the counts were not connected in their commission as provided by section 954. He also failed to allege that severance of those counts was necessary to preserve his constitutional rights to a fair trial. Those claims are therefore waived. (People v. Rogers (2006) 39 Cal.4th 826, 850, 854.) Moreover, the court did not abuse its discretion in denying severance of the robbery count from the drug possession count on the asserted ground. Although the court was required to consider whether Saltzman would be prejudiced by the joinder of a weak case with a strong case in deciding whether to grant severance (People v. Valdez (2004) 32 Cal.4th 73, 120), the record belies Saltzman's assertion that the evidence supporting the robbery and theft cases was weak. As the People recognize, those crimes were witnessed by a security guard and recorded by a security camera. Saltzman also admitted the theft. Under the circumstances, it cannot be said that the court abused its discretion in denying Saltzman's severance motion.

II.

Exclusion of Testimony

At trial, Ovideo testified that Saltzman admitted to the police that he had committed the theft at the Mervyn's department store in Canoga Park to support his drug habit, and that he was under the influence of drugs when he committed the crime. One of the two officers who had interviewed Saltzman, Los Angeles Police Officer David Heilman, testified that he did not recall this admission. Saltzman thereafter sought to call the other officer, Patty Peteque, to bolster Heilman's testimony that no admission had been made to the police. Although Saltzman had identified Officer Peteque on his witness list, he had not secured her presence that day, which was the last day of trial. The court excluded the testimony under Evidence Code section 352, concluding that it was cumulative to Officer Heilman's testimony. Saltzman claims the court abused its discretion in excluding the testimony because "the sufficiency of the prosecution's theft and robbery case was dependant [sic] on the jury's determination whether appellant admitted his guilt on the weaker of the erroneously joined cases . . . ." He also contends the error compromised his Fifth, Sixth, and Fourteenth Amendment rights to present a defense.^[4]

Saltzman's constitutional claims are waived because they were not raised below. (People v. Brown, supra, 31 Cal.4th at p. 546.) Moreover, the court had broad discretion to exclude the evidence as cumulative under Evidence Code section 352 (Brown, at p. 576), and Saltzman fails to persuade that the court abused its discretion in doing so. While Ovideo testified that Saltzman had admitted the theft to the police, Officer Heilman did not recall any such admission. Officer Peteque's testimony to the same effect would have added nothing to the case. In any event, Saltzman overlooks the fact that Ovideo and another Mervyn's employee both testified that Saltzman had made the same admissions to them before the police arrived. In light of this evidence, Saltzman fails to establish a reasonable probability that the result of the proceedings would have been different had the excluded testimony been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Marks, supra, 31 Cal.4th at pp. 226-227 [recognizing that claims of error in excluding evidence under Evid. Code,  352 are reviewed "under the 'reasonable probability' standard of Watson"].)

III.

Request for Appointment of Counsel

Saltzman contends the court abused its discretion in denying his request for reappointment of counsel. As the People correctly note, Saltzman did not seek reappointment of counsel, but rather asked the court to appoint "cocounsel for the rest of this case" after he had presented testimony from three defense witnesses. (Italics added.) His reliance on case law addressing a defendant's right to terminate self-representation and seek reappointment of counsel is therefore misplaced. (E.g., People v. Lawley (2002) 27 Cal.4th 102, 148-151.) Saltzman had no right to cocounsel, so the court did not err in denying his request. (People v. Marlow (2004) 34 Cal.4th 131, 147, fn. 6.) Saltzman's claim in his reply brief that he "misspoke out of ignorance of the law" finds no support in the record.

IV.

Law Library Access

Saltzman contends that his rights to self-representation, access to the courts, and due process were violated because he was denied reasonable access to the jail law library. While he claims as he did below that he had insufficient access to a computer, law books, and other materials that would have assisted him in his defense, his complaints are merely anecdotal. "[A]n inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense. . . . [T]he inmate . . . must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." (Lewis v. Casey (1996) 518 U.S. 343, 351.) Saltzman does not allege, much less establish, that he suffered prejudice as a result of the purported deficiencies. Although he was denied access to the library on two different occasions, he was allowed access seven times prior to trial. Moreover, he filed motions citing legal authority and made legal arguments that were presumably derived from his research. Under the circumstances, Saltzman fails to establish that any of his constitutional rights were violated as the result of inadequate access to the law library.

Saltzman also complains that the court failed to hold a hearing to determine whether he was receiving adequate law library access, as contemplated by Wilson v. Superior Court (1978) 21 Cal.3d 816. The procedure contemplated by that case does not apply here. Such a hearing is required only when the inmate's library privileges have been revoked as a disciplinary measure. (Id., at pp. 823-824.) Saltzman's rights to such access were never revoked. In granting Saltzman's request for self-representation, the court made clear that Saltzman would be "given the privileges to the law library that the pro pers get." Saltzman fails to establish that he received anything less.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Martin L. Herscovitz, Judge

Superior Court County of Los Angeles

______________________________

Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Jason C. Tran and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Penal Code, unless otherwise noted.

^[2] Section 954 provides in pertinent part that "[a]n accusatory pleading may charge two or more different offenses connected together in their commission" and "that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."

^[3] When asked to state his reasons for requesting severance, Saltzman responded "I don't know. You severed the counts on the last case." The court later agreed with the prosecution's recollection that the charges had originally been filed separately and that the court had never severed any of them.

^[4] Saltzman also argued in his opening brief that the court violated his constitutional rights by refusing to allow him to call one of the police detectives who purportedly found the methadone pills and brass knuckles in Saltzman's garage. In his reply brief, however, Saltzman concedes that this claim is waived because he did not seek to call the detective on the ground asserted in the opening brief (see People v. Marks (2003) 31 Cal.4th 197, 228-229), and also because he did not raise any constitutional objections to the court's ruling (People v. Brown (2003) 31 Cal.4th 518, 546).