Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA341322. Carol H. Rehm, Jr., Judge.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury convicted Jeshua Aziel of one count of second degree commercial burglary (Pen. Code, § 459; count 1) and of one count of petty theft with a prior (§ 666; count 2). In a bifurcated proceeding the court found true the allegations that Aziel had three convictions for which he had served prison terms (§ 667.5, subd. (b)). The court sentenced Aziel to an aggregate term of six years in state prison. We affirm.
Further unmarked statutory references are to this Code.
BACKGROUND
Prosecution
On May 29, 2008, Jose Orenos worked at a Rite Aid drugstore as a loss prevention officer. At approximately 6:20 p.m. that day, Orenos was in a back room monitoring activity inside the store on security camera monitors. He directed one of the cameras at Aziel when he observed Aziel in the make-up aisle removing items from the shelves and placing the items inside his jacket. Orenos left the security camera monitoring room and entered the store to confront Aziel. He saw Aziel and noticed that Aziel did not go the cashier to pay for the items he had placed inside his jacket, but instead walked directly toward the exit. Orenos stopped Aziel just as Aziel walked through the first set of exit doors and into a vestibule area leading to a second set of doors and to the outside. Orenos identified himself as a loss prevention officer, showed Aziel his badge, and directed Aziel to a back room inside the store.
In a pat down search, Orenos found six or seven skin care products belonging to Rite Aid tucked inside a sweatshirt tied at the waist that Aziel wore underneath an outer windbreaker and contacted police. Orenos took photographs of the products he found secreted in Aziel’s sweatshirt and prepared a report regarding the incident and the value of the items involved. The retail value of the products totaled $137. In his search, Orenos found that Aziel had $2 or $3 on his person, but no checks or credit cards.
When Orenos testified that Aziel was wearing a sweatshirt underneath his windbreaker, defense counsel requested a sidebar conference. She stated that the information that Aziel was wearing a second jacket had not been mentioned at the preliminary hearing, in the police report, or in any written witness statement. Counsel moved to exclude the evidence on the ground that the prosecution had not provided the defense with this discovery. The prosecutor claimed that she had relayed this information to defense counsel after her recent interview of Orenos. The court took a recess to permit defense counsel to review all the prosecutor’s witness notes. The court then offered to continue the trial to permit defense counsel to interview Orenos. Defense counsel declined the offer of a continuance and moved instead for mistrial. The court denied the motion for mistrial stating that it did not appear to “be a matter... significant enough to determine actual substantial prejudice or to form any ground for a mistrial.”
The security camera Orenos directed at Aziel in the makeup aisle recorded Aziel taking items off the shelves and placing them inside his jacket and the video was played for the jury at trial.
On cross-examination, Orenos acknowledged that there were other cameras throughout the store that had recorded his pat down search of Aziel and recorded Aziel entering the store and, as a now former employee of Rite Aid, he did not know why these recordings, or the photographs of the skin care products he had taken, had not been made available to either the prosecution or defense. Orenos said that he had prepared a handwritten report of the incident which he provided police, but could not explain why it had not been provided to the parties.
Orenos denied that his trial testimony was the first time he mentioned that Aziel had been wearing a sweatshirt underneath his windbreaker, or the first time that he had mentioned that Aziel had secreted the products he took from the store in this sweatshirt. Orenos claimed that he had informed the first two prosecutors who had handled the case that Aziel had been wearing both garments.
Over the prosecutor’s objection, the trial court instructed the jury: “Both the people and the defense must disclose their evidence to the other side before trial within the time limit set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence or counter opposing evidence or receive a fair trial. An attorney for the people, not this district attorney, failed to disclose evidence that the defendant was wearing two jackets within... the legal time period. In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
At the close of the prosecution’s case defense counsel moved to dismiss the burglary charge for insufficient evidence. Counsel argued that there was no evidence to show that Aziel had entered the store with the intent to commit any theft. She argued that no one had seen him enter the store and thus there was no evidence of what Aziel did or intended on entering the store. The prosecutor argued that the evidence that Aziel had a sweatshirt tightly bound at his waist to prevent items from falling out, and the evidence that he had only $2 or $3 dollars on his person, constituted circumstantial evidence that Aziel had entered the store with the intent to steal. The court denied the motion to dismiss the burglary count, finding that there was sufficient evidence presented to sustain a conviction on appeal.
Defense
Aziel presented no defense. He stipulated that he had a conviction for petty theft for purposes of the charge in count two of petty theft with a prior.
Verdict
The jury convicted Aziel as charged.
Post Trial Proceedings
After the jurors left the courtroom to begin their deliberations, but before they reached their verdicts, defense counsel informed the court that Aziel wanted to tell the jurors of “his religious convictions and why he feels like he is not subject to their judgment, ” but added that she had advised him that this was not an appropriate time. The court suggested that Aziel talk to his attorney and tell her what he wanted to say so she could advise him. Aziel told the court, “That has been done. I can cut you off. I am quite competent. I am eloquent as a priest. I am a priest educated. I have considered all of that. I don’t want to disrespect you. I will respect the world for law. I get my orders from God and I will not submit myself to the government. There is no government except of God....” Aziel complained that counsel had not consulted him about witnesses that he believed should have been subpoenaed to testify at trial. The court explained that these were tactical decisions his attorney was authorized to make. The conversation continued in this vein for some time before the court declared a recess and asked that Aziel be removed from the courtroom.
Marsden Motion
October 27, 2008, was the date set for the court trial of the prison term allegations, sentencing, and for the probation revocation hearing in case number BA308647. Aziel’s counsel submitted what the court described as a three-volume handwritten treatise, entitled “people of dignitary, ” “writ of erroneous prosecutions” and “summit city” respectively. Aziel submitted a 21-page supplemental handwritten document in which he complained about the way his defense had been presented. The court read the documents, after which it asked Aziel if he wanted defense counsel to continue to represent him, if he wanted new counsel appointed, if he wanted to represent himself, or if he wanted something else. Defense counsel informed the court that at her request a doctor had already examined Aziel and found him competent, that she had never doubted Aziel’s competence, and that she had only submitted Aziel’s documents for the court’s review.
Ultimately, Aziel stated that he wanted new counsel and the court held a Marsden hearing outside the presence of the prosecutor and others. (People v. Marsden (1970) 2 Cal.3d 118.) At the Marsden hearing, Aziel complained that counsel did not present the information in his documents and complained that he was not asked whether he had witnesses to testify on his behalf. In response, counsel stated that she had explained to Aziel that she had decided not to put his documents before the jury to prevent the jury from learning that he had been to prison and had, in addition, confessed to the current crimes. Counsel stated that she did not pursue the witnesses he suggested because they were essentially character witnesses and had explained to Aziel that, had they testified, it would have opened the door to the prosecutor presenting evidence of Aziel’s extensive criminal history. For the same reason, counsel said she had advised Aziel not to testify.
The court denied Aziel’s request for new counsel and Aziel requested to represent himself.
Faretta Motion
On October 29, 2008, Aziel submitted written forms waiving his right to counsel and requested to represent himself. (Faretta v. California (1975) 422 U.S. 806.) The court admonished Aziel about the dangers of self-representation and interviewed Aziel extensively to ensure that Aziel was knowingly and voluntarily waiving his rights before it granted Aziel’s request to represent himself.
Representing himself, Aziel made a motion for new trial based on alleged ineffective assistance of counsel. After some discussion, Aziel accepted the court’s offer of representation by an alternate public defender to present his motion for new trial.
At the October 31, 2008 hearing to consider appointment of counsel, a representative from the public defender’s office stated that the public defender had not declared a conflict and argued that if the court was going to appoint provisional substitute counsel to determine whether there was an arguable basis for a motion for new trial based on ineffective assistance of counsel that, before such appointment, the court should first determine whether Aziel had made a colorable claim for a new trial. The court agreed that this was the appropriate approach, stated that it had reviewed in detail Aziel’s treatise and 21-page supplemental document, and provided an extensive summary of the contents of those documents. The court concluded that nothing the court had observed, nothing Aziel had presented in his documents or statements to the court, demonstrated any error by counsel that denied him a fair trial. After this review, however, the court further found that it would be a denial of due process to allow Aziel to act as his own attorney, revoked Aziel’s in propria persona status, and reappointed his defense counsel.
Trial on the Prison Term Allegations, Order for Diagnostic Evaluation
On November 4, 2008, the court found true the allegations that Aziel had three convictions for which he had served prison terms. At the probation and sentencing portion of the hearing, the court, over the prosecutor’s objection, ordered the Department of Corrections and Rehabilitation to perform a diagnostic evaluation of Aziel pursuant to section 1203.03, to determine whether he was a suitable candidate for probation. The court explained to Aziel, “you submitted a substantial amount of handwritten paperwork to the court. Materials that you obviously put in a great deal of time and consideration. And the essence of those materials are that you are Saint Jeshua, and you do what you do because you are directed to do these things by God.” The court continued the probation and sentencing hearing pending receipt of the evaluation.
The information had also alleged that Aziel had a strike conviction (§§ 1170.12, subds. (a) through (d), 667, subds. (b) through (i)) for a 1962 robbery in Indiana but the prosecution produced no evidence to prove the conviction.
Section 1203.03, subdivision (a), provides: “In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.”
Sentencing, Probation Violation Hearing
On February 23, 2009, Aziel refused to come into the courtroom for sentencing. The court held a hearing in lockup as Aziel paced back and forth. Aziel said that he did not have counsel, did not want the public defender as his counsel, that he was competent to stand trial, that he was a cardinal priest, and was representing himself. After extensive discussions, the court told Aziel, “[u]nfortunate for you, Mr. Aziel, just by virtue of the fact that you’re walking up and down here in lockup, you’re refusing to come into the court and you’re talking over the court, you’re demonstrating that you cannot comport your behavior to what is required in the court, and your request to represent yourself is denied.”
Aziel continued his disruptive behavior and continued to interrupt the court. The court told Aziel that if he was willing to comport his behavior to that expected of him, he was welcome to come into the courtroom but if not, he could listen to further proceedings on a speaker set up for him in lockup.
When proceedings resumed in the courtroom, the court stated that Aziel had voluntarily absented himself from the courtroom by his disruptive behavior and that he was unable to comport his behavior as required to represent himself. The court stated that it would proceed with sentencing and the probation violation revocation hearing in his absence. Substitute counsel (who was standing in for Aziel’s defense counsel for this hearing), repeatedly objected to sentencing going forward because he had been unable to have any meaningful conversation with Aziel.
The Department of Corrections and Rehabilitation had completed its diagnostic evaluation of Aziel and concluded that Aziel had grandiose assertions, illogical trains of thought, and a possible delusional disorder, and that given his extensive criminal record and poor performance on probation and parole, Aziel was not a suitable candidate for probation. The court noted that the Department of Corrections and Rehabilitation found Aziel competent to stand trial and commented that nothing occurring during trial or during their discussions that day indicated that Aziel was incompetent or unable to proceed.
The court reviewed Aziel’s criminal history, beginning with a 1962 robbery in Indiana, and including 64 arrests, 23 misdemeanor convictions, and 10 felony convictions.
Before imposing sentence, the court gave Aziel another opportunity to appear in the courtroom and participate in the proceedings. Defense counsel went into lockup and spoke with Aziel who indicated that he did not want to come out, said that he did not want any public defender to represent him, and that he was the high priest of the Reagan administration, appointed by Ronald Reagan. The court proceeded to sentencing.
The court sentenced Aziel to the high term of three years for the burglary conviction because of his numerous convictions and poor performance on parole and probation. The court imposed three additional years for the three allegations found true by the court that Aziel had convictions for which he had served prison terms, for a total term of six years on the burglary count. The court imposed the high term of three years for the petty theft with a prior conviction and ordered that sentence to run concurrently with the sentence imposed on the burglary count. The court also imposed related fines and fees.
Based on the evidence presented at trial, the court found Aziel in violation of probation in case number BA308647 (in which he was convicted of felony possession of narcotics (Health & Saf. Code, 11350)). The court revoked probation and sentenced Aziel to eight months in prison (one-third the mid-term) and imposed related fines and fees.
Appeal
Aziel timely filed a notice of appeal. We appointed counsel to represent Aziel on appeal. After an examination of the record, counsel filed an opening brief in which counsel raised no issues. On October 15, 2009, we advised Aziel he had 30 days within which to personally submit any contentions or issues he wished us to consider. We granted Aziel’s several requests for extensions of time to permit him to respond and to date we have received no response.
We have examined the entire record and are satisfied that Aziel’s counsel has fully complied with her responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-278; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.