Opinion
A151339
01-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY MARTINELLI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-160221-8)
In this appeal, counsel for appellant has filed a declaration stating she has reviewed the record in the matter and decided to file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Her presentation of the matter is unique in that she presents several legal arguments on possible issues in the case and, for the most part, proceeds to discount them with legal authority. She has written appellant and advised him of her conclusion to file a Wende brief. She advised appellant he may file a supplemental brief with this court raising any issues he believes need to be addressed. More than 30 days have passed and no supplemental brief has by filed by appellant. We have reviewed the record and conclude the judgment should be affirmed. The appeal is timely.
STATEMENT OF THE CASE
Appellant was charged in a first amended information filed January 17, 2017, which was corrected January 19, 2017, to reflect the accurate date of two prior convictions. Appellant was charged with several offenses and enhancements. The information alleged in count 1 the felony violation of sections 459/462 of the Penal Code, first degree residential burglary (a violent felony pursuant to § 667.5, subd. (c)(21)); and count 2, a felony violation of sections 664/215, subdivision (a), attempted carjacking. The information alleged five prior felony convictions for first degree burglary as enhancements. These enhancements included exemption from local custody (§1170, subd. (h)(3)); serious or violent prior felony (§§ 667, subds. (d), (e); 1170.12, subds. (b), (c)); serious felony (§ 667, subd. (a)(1)); prison commitment within five years of a felony conviction and imprisonment (§ 667.5, subd. (b)); and ineligibility for probation, including a prior conviction for escape (§§ 4532, subd. (b), 1203, subd. (e)(4)).
Unless otherwise stated, all statutory references are to the Penal Code. --------
After a jury trial, appellant was found guilty of both counts in the information with the jury determining the burglary was in the first degree and that a person other than an accomplice was present in the residence during its commission. This determination made the conviction a violent felony. The jury also found that on November 5, 1999, appellant suffered two prior strike convictions in Contra Costa County. After these jury findings, appellant waived further jury trial on the remaining three prior felony convictions, which the trial court later found to be true after proper admonition.
The sentencing took place before the trial judge on April 28, 2017. The court imposed the statutory term for a three-strike conviction of 25 years to life. It added a consecutive 16-year enhancement for prior convictions on count 1 and a consecutive 10-month term, based on one-third of the midterm on count 2. Total credits awarded appellant were 1,168 days.
The appeal was filed on May 5, 2017.
STATEMENT OF FACTS
On September 23, 2015, Zedrick Arrogante lived with his parents on Sarah Drive in Pinole. He left his home to meet his girlfriend 10 minutes from his house. He then returned with her to his home for lunch. When Arrogante entered his home, he saw appellant exiting the kitchen. The two men looked at each other and appellant quickly darted from the house through a patio door that was open. Arrogante chased him and called 911 during the pursuit. He failed to catch appellant and was told by the dispatcher to return to the house to await the police.
Sometime later, Arrogante met with police to view a detained suspect, appellant. He was advised by the officers it would be improper to identify an innocent person. The victim, however, told police appellant was in fact the person he saw in his home. He also told police appellant had no permission to enter his home and the victim had never seen him before. Arrogante did acknowledge that earlier that morning he had seen the black truck appellant was detained in, parked on a road near his home.
The police found miscellaneous items of jewelry and coins in appellant's pockets when he was detained. Since Arrogante was not familiar with the items, he sent a photo of the property to his mother and sister via text to see if they could identify the property. His mother identified the property found in appellant's pocket as jewelry she had in the home. It was located in her bedroom in a black bag. She did not know appellant and did not give him permission to enter or take her jewelry.
Officer Zachary Blume was a Pinole police officer who happened to be in the vicinity of the Arrogante home on another matter. He was dispatched to the victim's house to investigate the interrupted burglary. While driving to the home, he saw appellant walking along a path behind houses in the victim's neighborhood. Based on the dispatched information, the officer detained appellant and searched him. In appellant's pocket, Blume found a crowbar, along with jewelry pieces and a pair of reading glasses. He also found the keys to a black truck parked near the scene.
Blume was joined by another officer at this time, who took custody of appellant. After Blume went to speak with Mrs. Arrogante about the jewelry items, he heard screaming and calls from his fellow officer who was in charge of appellant. Blume went outside and learned appellant had successfully escaped custody. This escape triggered a manhunt by several police agencies. The responders included canine units and a police helicopter.
During this effort to apprehend the escapee, Emily Laspona, an employee at a senior center, was getting into her car after work in the vicinity of appellant's escape. Once inside her car, the doors lock automatically. Appellant ran up to her car and tried to open her driver's side door, unsuccessfully. He was very aggressive and pounded on her car window. She believed he was trying to break into her occupied car. As Laspona backed out of her space, appellant lifted himself onto the passenger side of the car hood. However, he fell off the car as the driver continued backing out. Laspona, a native of the Philippines, was terrified by the event, but unable to call police immediately due to her serious speech impediment and limited familiarity with English. Once home, she told her family about appellant and the police were contacted. Laspona identified appellant at the trial as the suspect in the attempted car break-in.
On the same day as these events, appellant was found by police running in the area of Interstate 80 near Pinole Valley Road. Richmond Police Officer Whitney made the arrest.
Appellant was the only witness for the defense. He testified he knew Zedrick Arrogante. He went to the victim's home to collect on a drug debt. At the house, the two men spoke in the yard area of the home. At no time did appellant enter the residence. Appellant indicated Arrogante gave him jewelry and some money to help satisfy the obligation for drugs. He admitted his prior burglary convictions and one escape conviction. Appellant conceded he escaped from police custody on the day of the alleged burglary because he was afraid of prison as a third-striker. He admitted the attempt to get into the Laspona car because he needed to hide from police. She panicked when he made the request and put the car into reverse, causing him to fall.
DISCUSSION
In conducting our review of the record, we have the assistance of appellate counsel's detailed discussion of issues she has noted in the record. We have also reviewed the transcript of the trial on the sufficiency of the evidence. At the outset we find appellant was convicted of two serious felonies based on the events on September 23, 2015. Regarding the burglary and the attempted carjacking, we find the evidence presented sufficient to support each finding by the jury. The elements were established beyond a reasonable doubt; we cannot find in this appeal that no reasonable factfinder would determine the government failed to prove its case beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 576.) Additionally, the jury was properly instructed on the legal principles needed to decide this case. Appellant was ably represented by trial counsel in the proceedings below.
The first issue appellate counsel presents here is the denial by the trial court of appellant's Marsden motion. On October 26, 2016, two weeks before trial was to commence, appellant made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118. During the in camera hearing, appellant complained his trial attorney was not properly interviewing appellant's girlfriend or her family, and not discussing the case with him before trial. The trial court obtained sufficient explanation from counsel to determine the attorney-client relationship was not jeopardized and that appellant's Sixth Amendment rights were satisfied.
After the verdict, on March 17, 2017, appellant again sought new counsel. He raised complaints similar to those made in October 2016. The court found appellant was represented by effective counsel and did not grant the substitution motion.
Under Marsden, the court must determine if the relationship between counsel and accused has become substantially impaired and the conflict is not reconcilable. To ensure proper review of the issue, the trial court needs to conduct a hearing for the appellant to present his reasons. (People v. Cole (2004) 33 Cal.4th 1158, 1190.) Appellant has the burden of proof on the issue. (People v. Young (1981) 118 Cal.App.3d 959.) A disagreement between client and his counsel over strategy or trial tactics, or the number of meetings between the client and his lawyer, does not meet this burden. (People v. Jackson (2009) 45 Cal.4th 662, 688.) After reviewing the record on this issue, we find insufficient evidence to find the relationship between client and counsel was impaired and that a valid conflict existed during the handling of this case.
On September 27, 2016, with a trial date of October 17, 2016, appellant notified the court he intended to seek self-representation status on that later date. He further indicated he needed a continuance of the trial, a legal runner, an investigator, and court-ordered funds. However, on the date to start the trial, October 17, 2016, appellant never asked to represent himself. The trial was set to start on November 7, 2016. On October 26, appellant did ask to represent himself and also sought a 90-day continuance. The prosecutor objected to a long continuance, claiming the request for self-representation was not timely. The court denied the Faretta motion as untimely (Faretta v. California (1974) 415 U.S. 975).
Under People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5, a late request by a defendant to represent himself if reasonably justified should be granted. However, if the Faretta request is made to delay the "orderly processes of justice," a trial court is not required to grant the request if it appears unreasonable. (Ibid.) "[A] trial court may consider the totality of the circumstances in determining whether a defendant's pretrial motion for self-representation is timely. . . . [A] trial court properly considers not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation." (People v. Lynch (2010) 50 Cal.4th 693, 726.)
In this case, appellant had toyed with the idea of self-representation before filing his motion. Yet he refrained from doing so. Later he made his Faretta motion, but indicated he needed substantial additional time to prepare for trial. The government was ready to proceed and had several lay witnesses prepared to testify. We cannot say the trial court abused its discretion in determining the motion was not reasonable under the circumstances.
The final issue suggested by appellate counsel here is whether the court abused appellant's due process rights by using physical restraints in the courtroom, and having appellant escorted from the courtroom to the jail in a public corridor while cuffed.
At the start of the trial, appellant's counsel objected to his client being physically restrained with a belt attached to his courtroom seat. In rejecting the claim, the court ruled that "[t]here is a belt that is placed around his waist. That is not visible, at least not from here. And as far as I can tell, not visible to jurors entering into the courtroom. [¶] . . . [¶] . . . His hands will be free, as well as his legs. So nobody will see the restraints." The court further indicated this restraint procedure had been used in other cases in the courthouse. The judge relied on his experience that jurors in other cases had not in fact noticed the belt restraint during prior trials. The court further conceded appellant had not engaged in disruptive conduct in pretrial matters. However, the court was very concerned appellant had a prior escape conviction from jail, and had assaulted an arresting officer and escaped in his initial arrest for the crimes on trial. As the court observed: "[W]hatever merit there was to that argument [regarding the age of the escape conviction] is certainly defeated by the fact that recently violence was used to hospitalize a deputy on the instant offense. [¶] So it seems to me that the risk of violence and/or escape is still present, despite the passage of time, and I'm not going to second-guess my deputy's professional judgment in the matter. And so I do approve of the manner in which the sergeant has outlined of the security arrangements in the courtroom."
When appellant testified in the trial, he was not restrained. A bailiff was nearby when he testified.
After the verdict was returned, it was called to the attention of the court that appellant passed from the courtroom to the jail area through a public corridor. During those trips appellant was shackled. No prior objection was made to this practice, even though it was known to occur with custodies in the courthouse. The objection here arose when appellant's sister wrote a letter to the court complaining about it. The court, when presented with this matter in the letter, pointed out this was the way prisoners are transported from the jail to the courtroom. There was "no other way." Additionally, if advised earlier in the case, the court could have commented on the matter to the jury or considered other possibilities like instructing the jury. The issue was left with defense counsel advising the court he would look into the matter and see if this impacted the jury. If so, a new trial motion would be an option. No subsequent motion was made, however.
The use of restraints of a defendant during the actual trial is evaluated in large part whether this practice was visible to the jurors or the public while it was happening. In this record we have not noted the restraints were visible to the jury. The court indicated the security belt appellant wore was not visible. This is important. If restraints are not visible, the conduct is assessed under the standard of People v. Watson (1956) 46 Cal.2d 818 and People v. Jackson (1993) 14 Cal.App.4th 1818, 1826. Generally, prejudicial error does not occur when the defendant is seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors. (People v. Tuilaepa (1992) 4 Cal.4th 569, 584.)
It is also true a court correctly exercises its discretion to shackle and there is no due process violation where the accused on trial has a history of engaging in escape or outbursts. In this case, appellant, an accused "third-striker," had a prior felony escape conviction. He also actively resisted arrest in this case, injuring a police officer in the process, because he knew he was facing substantial custody time if convicted. Also, at the time of trial, appellant had five prior serious and/or violent prior felony convictions. A substantial criminal history, prior escape attempts, and flight when police attempted to arrest the defendant in the case on trial justify physical restraints during the proceedings, especially when the jury apparently is not aware of such shackling. (People v. George (1994) 30 Cal.App.4th 262, 269; People v. Pitcock (1982) 134 Cal.App.3d 795, 800-801.) In light of these several factors, we find no abuse of discretion or due process violation in the court's actions.
Regarding the use of restraints to transport appellant from a custodial site to the courtroom for trial, we observe that we are dealing with a situation where the jurors were apparently unaware of the matter. Appellant's sister complained in her letter, but defense counsel indicated to the court he would review the matter and, if a violation could be found, would make the appropriate motion. No such motion was made. We cannot speculate this issue affected the trial without a better record.
It is also true the propriety of shackling a defendant while in transit through public hallways of a courthouse to attend the trial cannot be judged by the same standards used to determine restraints in the courtroom. The consideration of public safety and the need for restraints are different during prisoner transport as opposed to the accused seated in the courtroom itself. In People v. Cunningham (2015) 61 Cal.4th 609, 632, the court found no abuse of discretion in the use of physical restraints during prisoner transit through public hallways of the courthouse without any showing of necessity.
It is also true, in this case, regardless of the nature of any restraint of appellant, appellant's counsel at no time requested any court instruction to the jury precluding any adverse inference on appellant's guilt from the observation of physical restraints. Appellant would certainly be entitled to proper jury instructions on this circumstance and error could be found if the court refused to give such. (People v. Givan (1992) 4 Cal.App.4th 1107, 1116-1117.) However, the evidence here supports the court's conclusion the restraints were not visible. Without further evidence in the record upsetting this conclusion, we find no error, let alone error that is prejudicial. (Ibid.; People v. Jacla (1978) 77 Cal.App.3d 878, 883.
CONCLUSION
Exercising our duty under Wende and Anders v. California (1967) 386 U.S. 738, we find nothing which would cause us to overturn this verdict.
DISPOSITION
We affirm the judgment.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.