Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. T061040F, T060999F, T061013F
CANTIL-SAKAUYE, J.
Following a jury trial, defendant Karin E. Pierce was convicted of multiple counts of grand theft by embezzlement. (Pen. Code, §§ 487, subd. (a), 503.) She was sentenced to an aggregate term of two years eight months in state prison.
Hereafter, undesignated statutory references are to the Penal Code.
Appointed counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requested this court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the filing of the opening brief. Defendant filed a supplemental brief claiming ineffective assistance of counsel and personal bias against her by the judge. For the reasons discussed below, we shall reject defendant’s claims and affirm the judgment.
FACTUAL BACKGROUND
Soroptimist
In June 2004, defendant became a member of Truckee Soroptimist International (Soroptimist) and soon thereafter, she became the treasurer. In that capacity, she was required to maintain the books, issue reports, reconcile bank statements and write checks. Checks were required to be signed by the treasurer and another officer. During 2004 and 2005, then-president Laura Mohun often signed blank checks to make it easier for defendant to pay the bills.
Lauren Schaake was president beginning in July 2005. She also signed a blank check that defendant had claimed was for a reimbursement of $11 to $13 to a payee other than defendant. The cancelled check showed an amount of $1,000, with defendant named as the payee. Based on this discrepancy, Schaake instituted an audit. Defendant gave different explanations for the check, including that it was to reimburse the business she owned with her husband. Schaake asked for documentation to support the check, but never received it.
Defendant was asked to step down as treasurer, and Nancy Davis took over the position of treasurer. Davis requested the records from defendant and Davis and Lil Schaller conducted an audit. They found a number of discrepancies in the check register, including checks made out to defendant. Two days later, defendant deposited $9,000 into the Soroptimist account.
When interviewed by police, defendant gave a number of explanations for the discrepancies. She said she made investments for the organization and the checks could have been part of those investments. She admitted comingling her funds and Soroptimist funds during the time she was making these investments. Later she said she used some of the money to pay for medical treatment and that she was “good for” any money still owed.
Defendant testified she had been receiving physical therapy from Mohun when Mohun asked her to be treasurer of Soroptimist. Mohun authorized defendant to invest Soroptimist money and she used her family trust to back up the investments. When Schaake took over from Mohun as president, Schaake and defendant did not get along, so defendant resigned as treasurer. Defendant admitted signing the $6,000 and $4,016 Soroptimist checks, but denied they had been deposited into her accounts. She invested $9,000 of Soroptimist money into a family trust and then later borrowed $9,000 from a line of credit to pay Soroptimist back.
David Thomas -- dba In Heat
Beginning in 2003 or 2004, defendant also worked as an office manager for David Thomas. Thomas was the only person authorized to sign checks for the business. Defendant would prepare the checks, but Thomas would sign them. The business account was located at Plumas Bank.
Kathryn Preis, an assistant operations manager at Plumas Bank, initiated an audit in late 2005 or early 2006 because she believed Thomas’s signature had been forged on a number of checks. The checks totaled $16,750, were made out to defendant, and had been deposited in a joint account defendant shared with her husband. Thomas had not signed the checks and confronted defendant. Defendant admitted forging Thomas’s signature because she and her husband were having financial difficulties. She made arrangements to pay Thomas back. These arrangements included her continuing to work for defendant while he kept her salary. While she continued to work for Thomas, defendant started using Thomas’s business accounts to pay her credit card bills. Eventually, defendant told Thomas and Preis that someone had “hacked” into the accounts and completed the transfers without her knowledge.
During an interview at the bank with Detective Mardison, defendant relinquished three company credit cards which had been fraudulently obtained. She acknowledged she had asked Thomas for a $5,000 loan and when he refused, she then wrote herself $5,000 in checks from his business account. She initially reiterated her story that someone had hacked into the accounts and made the transfers, but later stated her husband might have made the transfers.
Defendant testified it was a regular practice for her to sign Thomas’s name on company checks and that both the bank and Thomas were aware of the practice. She denied embezzling money from Thomas, but admitted she had borrowed $5,000 from him. She claimed to have paid that loan back.
Mountain Comfort Furnishings and Designs
Defendant also worked as an independent bookkeeper for Mountain Comfort Furnishings and Designs. Mary Riley, the manager at Mountain Comfort, asked Preis to review the business accounts. Riley had questions on three electronic transfers in the amounts of $2,371.32, $1,854 and $1,000 from the business account to an account linked to defendant’s credit card. Defendant admitted to police she might have transferred the money from Mountain Comfort to one of her credit cards.
Defendant denied embezzling money from Mountain Comfort. She explained the transfers to her credit card as repayment of business advances she had made to Mountain Comfort so it could avoid certain sales taxes.
PROCEDURAL HISTORY
In February 2006, defendant was charged with grand theft by embezzlement of the Soroptimist Club. In April 2006, Judge Holmer disclosed his wife “was a member of Soroptomist [sic] approximately a year ago.” This disclosure is contained in the clerk’s transcript. There is no reporter’s transcript of the proceedings on that day. Following a preliminary hearing, defendant was charged by information with three counts of grand theft by embezzlement.
Defendant retained counsel, Craig Osborne, to represent her through the preliminary hearing only. Osborne was relieved as counsel on August 22, 2006. The court attempted to appoint the public defender’s office to represent defendant, but there was a potential conflict for the office. On August 31, 2006, Glenn Kottcamp was appointed as defense counsel.
In December 2006, a second complaint was filed, charging defendant with four counts of grand theft by embezzlement of David Thomas. On December 15, 2006, a third complaint was filed, charging defendant with two counts of grand theft by embezzlement, one as against Mountain Comfort Furnishings.
In mid-December 2006, defense counsel requested that section 1368 competency proceedings be initiated.
In February 2007, retained counsel, Timothy Balcom, was substituted for appointed counsel. In April 2007, defendant was declared competent to stand trial based on a psychiatrist’s report. In July 2007, preliminary examination was waived on the two later-filed cases, defendant pled not guilty, and all three matters were consolidated for trial.
In August 2007, defense counsel Balcom reported that he was confident the matter could be resolved, there was a “generous” deal being offered by the district attorney that he thought his client should take, but they were still working out the details.
On the next hearing date in October 2007, counsel reported defendant was “requesting a trial, that is against my advice. I’ve been working with the district attorney in this matter trying to secure the best possible plea deal to avoid trial. [Defendant] does not want to accept that, and does want a trial. [¶] I was only retained through [the preliminary hearing], but I stayed on the case as I promised the Court up until the time where we either go to trial or enter into some plea arrangement and, again, [defendant] wants no part of that.” The matter was then set for a trial readiness conference.
In November 2007, defense counsel filed a motion to withdraw as attorney of record. The court noted the matter would have to be set for a hearing and that the case had been set for a jury trial for “an extraordinary amount of time.” Trial was set for early December 2007, and the earliest the motion could be heard was mid-December 2007. The court also noted “defendant has had several attorneys other than you and they have all been discharged. That’s the point of conflict here.” The court further indicated that, absent a showing of good cause, it was unwilling to continue the case. Defendant agreed to an order shortening time so the motion to withdraw could be heard before trial.
Defendant indicated she had no objection to counsel being allowed to withdraw from the case. However, she also made it clear she was unwilling and unable to represent herself at trial. Defense counsel stated he was retained to represent defendant only through the preliminary examination. The court noted that counsel had appeared a number of times following the waiver of the preliminary examination, including arraignment, entry of plea, and a number of other court appearances, in an effort to resolve the case. It was not until the last two hearings that the issue of withdrawal was raised and not until mid-November that a motion to withdraw was filed. The court repeated the history of various counsel on the case. The court also noted the concern of a defendant being forced to go to trial with an attorney who had not been adequately compensated. Accordingly, the court stated if defendant could not afford to pay counsel, the court would consider appointing counsel at the appointed counsel rate. The court then denied Balcom’s motion to withdraw as untimely.
Defense counsel filed a writ in this court in late November 2007. In early December 2007, this court stayed the proceedings, pending filing of opposition.
Also in early December 2007, Balcom filed a motion to reconsider in the trial court. Counsel stated that the relationship between himself and defendant had “become even more strained since the last court appearance.” Counsel claimed this strain in the relationship was violating defendant’s right to counsel. The court found there were no new facts or law and denied the motion to reconsider.
The court also noted the filing of the writ and the issuance of the stay: “I’ve been informed by the clerk that the DCA responded to your writ by staying the trial set for tomorrow pending opposition, so I expect it to be opposed. What’s unclear is whether or not the People do it or we ask county counsel to do it....” The court also stated on the record some factual disagreements it had with statements and declarations made in the writ petition.
In mid-December 2007, this court denied the petition for writ of mandate and prohibition and lifted the stay. A law firm responded to the writ on behalf of the trial court, providing additional exhibits; however, since the petition had already been denied, the response was not filed with this court.
Later in December 2007, counsel filed a challenge for cause against Judge Holmer. Counsel alleged Judge Holmer was biased and this bias was evidenced by statements he had made at the hearing in early December and by the fact that the court had responded to the writ petition. Judge Holmer filed an answer to the challenge on December 26, 2007, denying any bias.
The challenge for cause was set before Judge Hansen in Sutter County. The challenge was denied in January 2008, with Judge Hansen finding defendant had not proven the appearance or existence of bias.
The matter then proceeded to trial in February 2008. Thereafter, the court dismissed one count and, on the prosecution’s motion, counts 2 through 4 in the Thomas case were consolidated. The jury found defendant guilty on all remaining counts.
Ultimately, the parties stipulated to restitution of $900 for the Soroptimist Club and that no further restitution was owed to Mountain Home Furnishings, as it had already been made whole. The court also ordered restitution in the amount of $2,350 to David Thomas. The court denied probation, finding defendant was a risk to the community and did not have the ability to comply with the terms of probation. Defendant was sentenced to an aggregate term of two years and eight months in state prison.
DISCUSSION
I.
Defendant Did Not Receive Ineffective Assistance Of Counsel
Defendant contends her counsel provided ineffective assistance of counsel in that counsel “refused (or failed) to offer any defense”; did not communicate with her; she had no “knowledge of nor participation in the plea bargaining process”; had not prepared her case; refused to call witnesses on her behalf; withheld critical evidence; his cross-examination of witnesses against her was “purposefully pointless and ineffective”; and failed to dispute the prosecution’s many errors of fact.
In making this claim, the burden is on defendant to establish both that counsel’s representation fell below prevailing professional norms and that, in the absence of counsel’s failings, a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) On review, we are required to exercise deferential scrutiny, i.e., we may not second-guess counsel’s reasonable tactical decisions. (Ledesma, supra, at p. 216.) We examine the record to determine if there is any explanation for the challenged aspects of representation. If “‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ (People v. Pope (1979) 23 Cal.3d 412, 425.) When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ (Id. at p. 426.) Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. (Id. at p. 426 and fn. 16.)” (People v. Diaz (1992) 3 Cal.4th 495, 557-558.)
Defendant offers no argument as to the ways in which a cure of any of counsel’s alleged failings in his investigation and preparation, examination of witnesses, calling of particular witnesses, or objecting to evidence would have resulted in a determination more favorable to her. Nor does defendant identify any of the witnesses she alleges could have been called on her behalf, what they might have testified to, or what “critical evidence” was withheld. The record does not support defendant’s claim that counsel’s cross-examination was cursory, nor does the record support defendant’s claim that she had no knowledge of the plea bargain process. At a minimum, she was in court on October 9, 2007, when counsel discussed the fact that he had been engaging in plea negotiations with the district attorney and that defendant wanted “no part” of a plea--she wanted to go trial.
Defendant speculates curing counsel’s alleged failures would have resulted in a different outcome, “yet [s]he has failed to establish as a demonstrable reality any professional lapse in the defense actually employed. [Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 662, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “We cannot evaluate alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated speculation.” (Id. at p. 662.) We decline to join defendant in her speculation. (See People v. Bolin (1998) 18 Cal.4th 297, 334.)
II.
There is No Evidence Judge Holmer Was Biased Against Defendant
Defendant also contends Judge Holmer was biased against her. She contends that in April 2006, when Judge Holmer noted his wife was a member of Soroptimist during the previous year, “[w]hat he actually said was ‘several years ago.’ What he omitted was that Laurel Holmer, his wife, was on the Board of Directors with me at the time of the alleged crime and had personal knowledge and involvement.” Defendant also claims, “Judge Holmer was perfectly aware that I would not be adequately represented.” She claims, “Judge Holmer intentionally misrepresented his personal and political interests. Then, by denying me adequate legal representation, the prosecution was free to distort facts by withholding real evidence, manipulate circumstantial evidence, and filter only biased testimony to the jury.”
At no time during proceedings in the trial court did defendant raise the issue of bias against her personally because of Judge Holmer’s wife’s relationship in the Soroptimist Club. Nor did she object to him presiding over these proceedings on that basis. This lack of objection is despite the fact that the disclosure was made some 10 months and two attorneys before attorney Balcom commenced his representation of defendant. Defendant’s failure to object to Judge Holmer based on alleged bias against her personally has forfeited the issue on appeal. (People v. Hines (1997) 15 Cal.4th 997, 1040-1041.)
Furthermore, this court is limited to the record on appeal. We may not speculate about matters that may or may not have occurred outside the record. Thus, to the extent Judge Holmer made statements not reflected in the record or failed to disclose the full extent of his personal knowledge and involvement of the events surrounding the Soroptimist embezzlement, these are not matters we can address on appeal. “‘[O]ur review on direct appeal is limited to the appellate record.’ [Citation.]... ‘[B]ecause defendant’s claim is dependent upon evidence and matters not reflected in the record on appeal, we decline to consider it at this juncture.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 952.)
To the extent defendant’s claims that Judge Holmer knew she would not receive effective assistance of counsel are supported by citations to the record, we find no merit in them. As discussed above, we do not find that defense counsel was inadequate or ineffective. Accordingly, we cannot find that Judge Holmer intentionally denied her adequate legal representation.
After considering the record on appeal, we conclude defendant’s claims lack merit. Having also undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SIMS , Acting P. J., NICHOLSON , J.