Opinion
B194271
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. SALVATORI AVINI, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A former patient called his doctors office more than a hundred times over a two month period demanding to speak to the doctor. The patient was rude and threatening. A jury convicted the patient of the misdemeanor of making annoying telephone calls. The jury acquitted the patient of the more serious felony counts of making criminal threats and of making a false bomb threat. He was released with time served. The patient appeals, claiming defense counsels concession of his guilt of the misdemeanor offense against his express wishes deprived him of his fundamental right to plead not guilty and to present a defense to the charge. He further claims reversible error in failing to grant Marsden (People v. Marsden (1970) 2 Cal.3d 118) motions he made before and during trial. We affirm.
I
A
Tracy Cortes is the office manager of a dermatology/plastic surgery medical practice named "Forever Young" operated by one Dr. Aronsohn. Cortes had been the office manager there for 19 years.
Around 4 p.m. on July 29, 2005, Cortes answered an office telephone call. The caller asked for information about a doctor on television. Cortes told the caller she did not have any information about this doctor. The caller refused to accept her answer. He told Cortes she was lying, and he got angry. He told her he believed the information was accessible on her computer and directed her to get it. Cortes said she did not have access to the information and told the caller to contact the Medical Board.
By the end of this first call Cortes knew the callers identity. She recognized the callers voice, tone, and demeanor as a patient she knew as Joe Chacon. Chacon had had a rhinoplasty — a nose job — ten years before. Cortes remembered him and his voice because Chacon had been a very difficult patient.
At trial Cortes identified defendant and appellant Salvatori Avini as the person she knew as Joe Chacon.
Avini called more than 50 times that day. Cortes put some of these calls on the speaker phone so others in the office could hear. Sometimes Avini identified himself as a federal agent. He called Cortes a "wetback" and threatened to deport her. Each time Cortes recognized his voice and knew the caller was Avini. She often just hung up on him.
Avini called several times again on August 3, 2005. Each time he demanded to speak with Aronsohn. Each time Cortes told him Aronsohn was not in the office. Avini got upset and called Cortes names. Avini made racial slurs. Cortes threatened to report Avini to the police. Avini made four more calls that day. Nurse Zonia Villatoro answered one of the calls. Avini asked to speak to Aronsohn. Villatoro told him the doctor was not in. Avini became angry. Avini told her, "Let me speak to Dr. Aronsohn, or Im going to blow up the place."
Cortes called the police, who searched the five-story building but found no explosives.
On September 9, 2005 Avini made 41 telephone calls to Aronsohns office. Avini again insisted on speaking to Aronsohn. The doctor was not in the office. Avini was verbally abusive. He called Cortes a "fat ass" and a "wet back." Avini told Cortes he was "going to tear her apart." While Avini was still on the phone, Cortes arranged a three-way call with the detective investigating the matter. While the detective listened on the line, Avini told Cortes he was going to take "her Green Card and shove it up her ass," and said "dont you get tired of being an asshole?" Avini hung up when the detective identified herself.
Avini called the office 22 more times on September 13, 2005. He called once on September 23, 2005. He told Cortes he would make Aronsohns life miserable so they would all lose their jobs and have to go on welfare.
The detective investigating the case asked the telephone company to put a trap on calls to Aronsohns office. The trap showed Avini placed 41 calls on September 9, 2005, 22 calls on September 13, 2005, and one call on September 23, 2005. All originated from the same number in the 760 area code. This telephone number belonged to a particular apartment in Pinion Hills in San Bernardino County.
The postmaster of Pinion Hills verified Avini had applied to be added to the post office box assigned to his relative, Vera Chacon. The application listed this same residence address as the address Avini provided the telephone company.
Police went to Avinis Pinion Hills address with an arrest warrant. Avini peeked through the blinds but would not answer the door. Instead he hid in the shower, where police arrested him.
B
An information charged Avini with three counts of making a criminal threat. (Pen. Code, § 422, counts 1, 2, and 5) The information also charged Avini with one count of making a false bomb threat. (Pen. Code, § 148.1, subd. (c), count 3.) With regard to these four felony counts the information alleged Avini had two prior "strike" convictions (Pen. Code, §§ 667, subds. (b) — (i), 1170.12, subds. (a) — (d)) and two prior serious felony convictions. (Pen. Code, § 667, subd. (a)(1).) The information also charged Avini with the misdemeanor of making annoying telephone calls. (Pen. Code, § 653m, subd. (a), count 4.)
The jury convicted Avini of the misdemeanor phone count and acquitted him of all the felonies.
The court found Avini was entitled to a "time-served sentence." The court sentenced him to 180 days in county jail and credited him with 522 days of presentence custody credit. Avini appeals.
II
A
Avini and his lawyer disagreed about strategy. Defense counsel thought the best defense was to concede Avini was the caller but to try to convince the jury the statements were not felony offenses. Defense counsel thought "incontrovertible" evidence proved Avini had placed the calls. After all, Cortes had recognized Avini. Worse yet, police found Avini hiding behind the shower curtain at the location from which the calls had originated.
Avini, on the other hand, wanted to go with an alibi defense. He said alibi witnesses would place him out of the state when the calls were made. Avini did not want to concede any guilt, including guilt of the misdemeanor about annoying calls.
Defense counsel did not like the alibi defense because it was "pie in the sky and a figment of Mr. Avinis imagination." Avini never gave his lawyer the name or phone number for any alibi witness. No one had called or come to court on Avinis behalf. "So, basically, all of that essentially is bluster." Counsel opted against the bluster defense and went with his original idea.
After their first meeting and first Marsden hearing, Avini gave counsel a name and telephone number of a potential alibi witness. Counsel called the person and spoke to him on the phone. This person told counsel he did not know Avini.
Much later, during trial, Avini suggested his family members could testify as alibi witnesses instead. Apparently, Avini had not mentioned family members before and never did provide counsel with their names or telephone numbers to investigate. Moreover, no family member ever contacted counsel or attended Avinis trial.
At trial, counsel conceded in opening statement that Avini was the one who made the telephone calls, but told the jury the evidence would show none of the calls amounted to a criminal or bomb threat. In closing argument, defense counsel repeated that Avini made the calls and thus was guilty of the misdemeanor offense. But counsel urged the jury to acquit on the charges of criminal threats. Counsel also emphasized there had been no evidence Avini made a bomb threat, as opposed to making an idle threat to "blow up the place." Counsel argued Avini was simply frustrated by not being able to speak with Dr. Aronsohn and by having been hung up on so many times. The jury convicted Avini of the only charge to which he presented no defense—the misdemeanor offense of making annoying telephone calls—as counsel urged the jury to do.
On appeal, Avini argues counsels refusal to present a defense to the misdemeanor charge was tantamount to entering a plea of guilty without his consent, and thus in violation of his constitutional and statutory right personally to make the choice whether to plead guilty. Avini acknowledges once a defendant is represented by counsel, counsel is "captain of the ship" and generally responsible for trial and defense strategy. (In re Horton (1991) 54 Cal.3d 82, 95 ["By choosing professional representation, the accused surrenders all but a handful of `fundamental personal rights to counsels complete control of defense strategies and tactics." Citations and quotation marks omitted.) However, Avini says, the decision whether to plead guilty, and the decision whether to present a viable defense to a charge, are both fundamental rights reserved to the defendant himself. (Ibid.; People v. Davis (1957) 48 Cal.2d 241, 256 ["Whatever trial strategy or tactics an attorney may employ in the defense of an accused he may not enter a plea of guilty to a felony without the consent of his client."]; Pen. Code, § 1018; People v. Diggs (1986) 177 Cal.App.3d 958, 970 [defense counsels closing argument directly contradicted the defendants trial testimony; thus counsel "effectively withdrew a crucial defense and admitted his clients guilt without his clients consent."]; People v. Frierson (1985) 39 Cal.3d 803, 817-818 [in the event of an express conflict, a defendants desire to present a viable defense in the guilt phase of a capital trial prevails over counsels contrary wishes].) Avini thus argues it was reversible error for defense counsel to refuse to present his alibi defense.
Frierson does not control this case. There was no evidence Avini had a defense that was viable. (Compare People v. Frierson, supra, 39 Cal.3d at pp. 817-818 [court and counsel "misjudged the scope of the attorneys authority to override defendants express wishes on a matter of fundamental importance. As a consequence, defendant was deprived of the opportunity to present his only viable defense to the special circumstance allegations." Italics added].) Instead, Avinis alibi defense was hopeless. Avini had no alibi witnesses. The one concrete name Avini finally proposed was for someone who said he did not know Avini. This kind of alibi defense is just a nail in the coffin for a two striker facing new felony charges. Where there is no viable defense, Frierson does not apply. (See also, People v. Lucas (1995) 12 Cal.4th 415, 444 ["it is not necessarily incompetent for an attorney to concede his or her clients guilt of a particular offense."].)
The misidentification defense Avini suggested during trial also had no evidentiary support. By the end of Avinis first call to Cortes, she recognized Avinis voice. She remembered him because he had been difficult. The fact that ten years had gone by since then did not contradict Cortess direct testimony about her memory. Difficult people can make lasting impressions. Most jurors would be able to recall memorably obnoxious people a decade later. And the fact Cortes remembered him as "Joe Chacon" does not undermine Cortess identification of Avini as the caller. Avini had family members named Chacon who also had been patients. The telephone trap traced all his incoming calls to a particular telephone number. This telephone number was linked by official documents and independent sources to the address of a small studio apartment where Avini lived and where he was hiding when arrested. Counsel was entitled to conclude that Avinis proposed misidentification defense also was hopeless.
In short, the defenses Avini proposed were doomed to fail. It was not reversible error for counsel to avoid a defense he rightly judged to be "pie in the sky" — particularly when counsels own approach was successful and worked exactly as planned. (See People v. Carter (2005) 36 Cal.4th 1114, 1197 [the defendant received adequate representation and was not deprived of the right to present a defense where the record showed the defense the defendant proposed was not viable].)
B
Avini next claims the court erred by denying his Marsden motions. Alternatively, he says he did not get an adequate opportunity to complain about his lawyer. The record does not support these arguments.
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118)—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the courts discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel." (People v. Smith (2003) 30 Cal.4th 581, 604, citation omitted.)
The day after defense counsel was assigned the case, Avini told the court he had a conflict with his attorney. The court held a Marsden hearing. Avini complained his prior retained attorneys had "abandoned" him. He faulted the public defenders office for not appointing counsel sooner. Regarding current defense counsel, Avini complained he had not yet filed any motions and Avini wanted "to get some motions done." Avini said counsel did not want to hear his side of the story and had proposed a defense theory without even having heard his version of the facts.
The court asked counsel to respond. Counsel said they had met for an hour and a half the day before and he informed Avini of his proposed strategy. Avini did not agree and said he wanted to fight all of the charges. Counsel told Avini he did not believe Avinis approach would be a winning or plausible strategy.
When questioned by the court Avini listed numerous motions he thought counsel should file. Counsel gave his thoughts about each one.
The court found Avinis right to the effective assistance of counsel had not been impaired and denied his Marsden motion. Avini said he might just have to represent himself. The court told Avini he could raise the issue again at the next pretrial hearing on August 21, 2006.
On August 21, 2006, all counsel announced ready for trial and the court assigned a courtroom. Avini interjected to tell the court he wanted to "announce [his] witnesses that are alibis." Avini told the court he and defense counsel disagreed on the defense but he still wanted to announce his witnesses. The court suggested Avini tell the judge assigned to preside at his trial. At this hearing Avini did not ask for new counsel and did not ask to represent himself.
At the last pretrial hearing on August 30, 2006 Avini again interrupted the proceedings to air various complaints on the record. He complained about his previous and privately retained counsel who had abandoned him, and other irrelevant matters. Defense counsel told the court he did not want Avini speaking on the record because he did not want Avini saying anything in front of the prosecutor that might damage his case. The court told Avini that counsel had the right, as a tactical matter, to prevent him from addressing the court directly. Avini responded, "Then I am going to have to go pro per, because I have been trying to get rid of this guy for a while because hes been trying to eliminate my alibis that I was out of state. Avini clarified he would continue to trial with defense counsel, but was upset counsel did not want to use his alibi witnesses. Avini asserted his witnesses would come to court whether defense counsel chose to call them or not.
The court excused the prosecutor from the courtroom and conducted a second Marsden hearing. Again, Avini complained about earlier retained counsel who had allegedly abandoned him. Avini also reiterated he did not agree with defense counsels strategy of attempting to win on some, but not on all, of the counts. Avini insisted on "announcing" his alibi witnesses. On the other hand, Avini made it clear he was not asking to replace counsel. Avini said he did not want to waive his right to a speedy trial and so did not want to start over with new counsel. He told the court, "I do want [defense counsel] to handle my case right now."
Counsel explained their disagreement over defense strategy. Counsel explained how he had checked out the one alibi witness Avini provided and explained how the person claimed not to know Avini. The court permitted Avini to respond and to make whatever further comments he desired.
Avini made his third Marsden motion during trial. For 45 minutes and 38 transcript pages, Avini repeated all his earlier complaints about his earlier retained counsel. He also aired his complaints regarding current defense counsel—counsels refusal to accept his input on which points to cross-examine prosecution witnesses, counsels trial strategy of conceding his guilt of the misdemeanor offense rather than present his proposed alibi defense, and other complaints about counsels lack of communication. The court required counsel to respond to each point. The court concluded Avini failed to demonstrate irreconcilable differences or that he was receiving ineffective representation. The court denied his Marsden motion.
There was no abuse of discretion. The bench officer who heard his first Marsden motion knew Avini and counsel met for the first time only the day before. They had had little time to sort out differences and probe the case deeply. The court could have reasonably concluded Avini had not shown inadequate representation because he had not yet given counsel a fair opportunity to demonstrate his skill and trustworthiness. (See People v. Smith, supra, 30 Cal.4th at p. 606 ["the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness."].)
The trial court considered Avinis second and third Marsden motions. The court conducted a full inquiry into his complaints and allowed Avini to express himself fully. In the closed hearings the court permitted Avini to speak at length on many subjects. The court also properly required counsel to address each of Avinis charges of alleged conflict. The court cut off Avini only in open court, where the prosecutor was present, which of course was proper. The court rightly protected Avini from divulging information potentially damaging to his case.
At the second hearing Avini advised the court he did not want to change counsel. When Avini said he did not want new counsel, the court appropriately denied this Marsden motion to appoint new counsel.
Avini made his third Marsden motion during the trial. To grant the motion would have required either a significant delay or a mistrial. At this hearing Avini raised no issue regarding counsels representation sufficient to lead the court to believe Avini was being denied adequate representation. (People v. Smith, supra, 30 Cal.4th at p. 607 [a Marsden motion made during trial should be granted "only when the defendant demonstrates that counsel is truly providing inadequate representation or that a total breakdown in the relationship has occurred that the defendant did not cause."].)
Avini also says the trial court abused its discretion by failing to hold an adequate Marsden hearing. This is incorrect. The trial court gave Avini many opportunities to complain about counsel. At the heart of the conflict was a fundamental disagreement over defense strategy. Their conflict did not concern an alleged deficient performance. However, "[a] defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. Tactical disagreements between the defendant and his attorney do not by themselves constitute an `irreconcilable conflict." (People v. Welch (1999) 20 Cal.4th 701, 728-729, internal citation omitted; see also, People v. Smith, supra, 30 Cal.4th at p. 606.)
Avini wanted his lawyer to present a defense that was "a figment of Mr. Avinis imagination." The lawyer would not do it. That was the key disagreement between client and counsel. In this situation, the trial court certainly did not abuse its discretion by denying the clients motion for a new lawyer.
III
The judgment is affirmed.
We Concur:
PERLUSS, P. J.
WOODS, J. --------------- Notes: Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.