Opinion
2d Crim. No. B227991 Super. Ct. No. 2008052641
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN MICHAEL SOMLAY, Defendant and Appellant.
Christina Alvarez Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
John Michael Somlay appeals a judgment following his conviction of petty theft with a prior conviction (Pen. Code, § 666), a felony. The trial court suspended imposition of sentence, placed him on formal probation for 36 months on condition that he serve 365 days in jail. We conclude, among other things, that: 1) the court did not err by denying Somlay's request to substitute counsel; 2) Somlay has not shown ineffective assistance of counsel; but 3) because of an amendment to Penal Code section 666, we vacate his sentence, order his conviction to be reduced from a felony to a misdemeanor, and remand for resentencing. In all other respects, we affirm.
FACTS
Juan Mutaz was an asset protection manager responsible for safeguarding merchandise at Home Depot. Somlay entered the store. Mutaz watched as Somlay put a Home Depot nail gun into his shopping cart and "concealed it underneath a piece of paper." Mutaz followed him from the store's tool section to the electrical department. Somlay took the nail gun from the cart, grabbed a clipboard, put the nail gun "underneath" it, and began "looking around." Home Depot security personnel used a surveillance camera to follow him. The videotape of that surveillance was introduced at trial.
Somlay walked out of the store with the nail gun "concealed underneath" the clipboard. He had not paid for that item.
Mutaz and Jesus Rodriguez, another store security agent, approached him five feet outside of the store. Mutaz identified himself as "store security." Somlay responded, "[L]eave me the fuck alone"; "I didn't do anything." Mutaz asked him to come back into the store. Somlay refused. Mutaz and Rodriguez detained Somlay until the police arrived. They had to grab him because he was physically resisting their efforts to detain him.
Somlay testified that he left the store with the nail gun. He was waiting for his son to help him determine whether the nail gun was compatible with the type of nails he was using before deciding to buy it. There were no store employees available to help him. On cross-examination, he said he did not leave the store with the nail gun.
DISCUSSION
The Request to Discharge Counsel
Somlay contends the trial court committed reversible error by denying his "motion to discharge [his] retained counsel" without holding a hearing. (Initial capitalization omitted.)
The People respond that Somlay initially indicated that he wanted to change counsel. But after the court discussed the matter with Somlay, it reasonably could infer that he had changed his mind. We agree.
A defendant has a right to discharge retained counsel except 1) where it would cause an "unwarranted disruption of the orderly processes of justice," 2) where the request is untimely, or 3) where if granting the request would "result in 'significant prejudice'" to the defendant. (People v. Ortiz (1990) 51 Cal.3d 975, 982.) A request for self-representation must be clear and unequivocal. It may be denied if it is ambivalent or based only on "passing anger" or frustration. (People v. Marshall (1997) 15 Cal.4th 1, 23.)
At a pretrial hearing, Michael Ford, Somlay's privately retained counsel, told the court, "Mr. Somlay's bringing a motion to fire me and proceed either in pro. per. or get the public defender." Ford suggested that Somlay's dissatisfaction arose from an earlier discussion "in chambers" between Ford, Somlay and the court. The trial judge felt Somlay may have misunderstood what took place there.
Our review is somewhat hampered because the chambers conference was not reported and there is no settled statement. Consequently, we must give deference to the trial court's determinations about what occurred there and its impact on the merits of Somlay's request. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549; People v. Malabag (1997) 51 Cal.App.4th 1419, 1427.)
The record supports the People's claims that: 1) Somlay initially wanted to discharge Ford because Ford refused to move to disqualify the trial judge (Code Civ. Proc., § 170.6), but 2) Somlay abandoned that request after he learned that the Code of Civil Procedure section 170.6 motion was no longer available and that he had misunderstood what the trial judge said in chambers.
Ford told the trial court that Somlay "fired [him] because [he] refused to do a motion for [Code of Civil Procedure section] 170.6." The court advised Somlay, "It's too late" to file that motion. It then gave an explanation of some of the sentencing alternatives discussed in chambers and said it was Somlay's choice whether he wanted to plead guilty or proceed to trial. It said, "If you don't think you did this, if you don't think they can prove it. If you think you did it but they can't prove it, you have every right to a trial. I encourage a trial." The court added, "Those are your choices. Whether you're representing yourself, whether [Ford] represents you or whether Vince Bugliosi represents you."
Somlay indicated that he had misunderstood what the trial court suggested in chambers. He said, "I had a different view of the way . . . that you were thinking of me." He felt the court had viewed the prosecution's case as "easily provable." But after listening to the trial judge, he appeared satisfied with the court's explanation about what had happened in chambers. Somlay said, "[Y]ou've explained yourself adequately." He also reaffirmed his faith in Ford. He said, "I also don't have the option of firing Mr. Ford. Not that I want to. Mr. Ford is my friend. He is not someone that I would not have trusted with this all this time."
The People claim the trial court also could reasonably infer that Somlay formally abandoned his request to replace Ford. The People note that after Somlay acknowledged that it was too late to file the Code of Civil Procedure section 170.6 motion, he said, "It won't make the slightest bit of difference and I'll just go ahead and ferret out." (Italics added.) Somlay now claims he did not abandon his request. But the record does not support him. At that moment he could have requested to represent himself. But he made no such request. Nor did he make any further request to replace Ford. The court could reasonably infer that his request to change counsel was the result of "passing anger or frustration" based on a misunderstanding, and properly deny the request on that ground. (People v. Marshall, supra, 15 Cal.4th at p. 23.)
Somlay suggests that the trial court prejudged his request to change counsel because at the beginning of the hearing it said, "I'm just not sure what you're saying. I think it's a little late to go pro. per. I'm not going to give him the public defender. So unless somebody wants to flush out the motion a bit, it's denied." (Italics added.)
But at this early stage of the hearing, the trial court was apparently frustrated because Ford had not explained the reasons for the request or why it was being made at such a late date. Somlay had retained Ford as private counsel. But Ford made no showing that Somlay was financially eligible for the public defender. Had the court ended the hearing at this stage, there might be merit to Somlay's claims. But it proceeded and discovered the reason for the request and it gave Somlay and Ford the opportunity to "flush out the motion." It exposed Somlay's misunderstanding about the chambers conference and addressed his concerns to his apparent satisfaction. Because he no longer expressed any need to disqualify the trial judge, there was no reason to discharge Ford, and the request to change counsel was no longer relevant. (People v. Marshall, supra, 15 Cal.4th at p. 23.)
Ineffective Assistance of Counsel
Somlay claims his trial counsel was ineffective by not objecting to prosecution evidence that he "was a known shoplifter" who had previously "walked out of the store with merchandise."
Ineffective assistance is established if the defendant can demonstrate: 1) "that counsel's performance was deficient," and 2) that "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Somlay notes that Ford did not object to Mutaz's testimony that he (Somlay) had attempted to walk out of the store on prior occasions without paying for items. He claims that had he objected, this evidence would have been excluded as improper character evidence.
But "'[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.'" (People v. Avena (1996) 13 Cal.4th 394, 421.) Moreover, as the People note, that objection would not have prevented the prosecution from introducing such evidence to show Somlay's intent. "[I]n a prosecution for shoplifting in which it was conceded or assumed that the defendant left the store without paying for certain merchandise, the defendant's uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2.)
Somlay claims there was no tactical reason for Ford to ask Mutaz, "So the statement made to the Oxnard policeman was that [Somlay] was a known shoplifter in the store. Do you have personal knowledge that that was true?" Mutaz: "Just from what I was told." But this was proper impeachment. It demonstrated Mutaz's lack of personal knowledge to claim Somlay was a "known shoplifter."
Somlay contends Ford's questioning of Mutaz only assisted the prosecution. But that is not the case. During cross-examination, Mutaz said that on prior occasions he "kept [his] eye out" for Somlay in the store. But he admitted that Somlay had "paid for whatever he had." This refuted that prosecution's suggestion that Somlay was a known shoplifter. Mutaz also admitted that on this occasion he began watching Somlay as soon as he learned he was in the store. This testimony shows Mutaz's state of mind. From Mutaz's admissions, a trier of fact might infer that: 1) he had repeatedly targeted Somlay based solely on a rumor, and 2) he may have over aggressively jumped to the wrong conclusion on this occasion when he followed Somlay out the door. If the jury believed Somlay, Mutaz's admissions would fortify his defense.
But even had Somlay showed Ford's performance was deficient, he has not established the second Strickland prong because the evidence of Somlay's guilt is overwhelming. The prosecution presented testimony from two store security agents and introduced a surveillance tape. Mutaz testified Somlay "concealed" the nail gun "underneath" a clip board as he walked out of the store. Somlay's statements to Mutaz and his conduct outside the store showed his consciousness of guilt. In his direct testimony, Somlay admitted that before leaving the store, he "looked around . . . to see if there was anybody in the tool department. . . . [He] didn't see anybody handy." He also admitted that he "left the store" with the nail gun which he had not purchased. On cross-examination, he contradicted his direct testimony by denying that he left the store with the nail gun. This impeached his credibility.
The Amendment to Penal Code Section 666
Somlay was convicted of petty theft with a prior, a felony under Penal Code section 666. He claims that because of an amendment to section 666 following his conviction, his felony "sentence should be stricken and the court should instruct the trial court to reduce the charge to a misdemeanor and re-sentence" him. The People agree. They are correct.
After Somlay's conviction, the Legislature amended Penal Code section 666. The new statute "requires proof of at least three prior convictions, not just one" to make a defendant subject to felony sentencing. (People v. Vinson (2011) 193 Cal.App.4th 1190, 1194; § 666.) Somlay was convicted of petty theft with only one prior conviction. But "[t]o be eligible for felony sentencing under section 666 as amended . . . it is no longer enough that the defendant previously have been convicted of a single specified theft-related conviction." (Vinson, at p. 1197.) The new statute is retroactive to pending cases. (Id. at p. 1999.)
The sentence is vacated. The trial court on remand is instructed to reduce Somlay's conviction from a felony to a misdemeanor and to resentence him accordingly. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
PERREN, J.
John E. Dobroth, Judge
Superior Court County of Ventura
Christina Alvarez Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.