Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE293886, Allan J. Preckel, Judge, and petition for writ of habeas corpus.
AARON, J.
I.
INTRODUCTION
A jury found defendant William Franklin Bronson guilty of one count of grand theft of personal property arising from an incident at a Target store in which Bronson walked out of the store with a number of items of clothing in a cart, without having paid for the items. The trial court sentenced Bronson to a total of four years in prison, consisting of the middle term of two years on the grand theft count, plus two additional one-year terms for two prior prison sentences.
Bronson appeals the judgment of conviction and has filed a petition for a writ of habeas corpus. We affirm the judgment and deny the petition.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2009, Bronson entered a Target store on Mission Gorge Road. An asset protection officer (APO) observed Bronson place a large number of items of men's clothing into a shopping cart. Bronson then pushed the cart to the lawn and garden department of the store, walked past the cash registers, and exited the store without paying for the merchandise.
The APO contacted Bronson and informed Bronson that he was a member of the Target security team. Bronson let go of the shopping cart and pushed the APO in an attempt to get away. The APO and Bronson struggled, and another Target employee got involved in the fray. Bronson was eventually detained and arrested by police.
The APO estimated the value of the merchandise that Bronson had when he left the store as $405.
Bronson was charged by amended information with robbery (Pen. Code, § 211; count 1); burglary (§ 459; count 2); grand theft of personal property (§ 487, subd. (a); count 3); and petty theft with a prior (§ 484; count 4). The information further alleged that Bronson had served three prior prison terms within the meaning of sections 667.5, subdivision (b) and 668.
Further statutory references are to the Penal Code unless otherwise indicated.
During trial, the court dismissed count 1. The jury found Bronson not guilty on count 2, but convicted him on count 3.
The jury was instructed not to complete the verdict form for count 4 if it found Bronson guilty on count 3.
The court sentenced Bronson to the middle term of two years on count 3. In addition, the court struck one of Bronson's prison priors, and imposed two one-year enhancements for each of the two remaining prison priors. The total term that the court imposed was four years.
Bronson filed a timely notice of appeal on January 28, 2010.
On September 23, 2010, Bronson, appearing in propria persona, filed a petition for writ of habeas corpus.
III.
DISCUSSION
A. Bronson's direct appeal
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel identifies the following three issues as possible, but not arguable, issues on appeal: (1) whether the trial court erred in failing to hold a hearing under People v. Marsden (1970) 2 Cal.3d 118; (2) whether the court erred in failing to instruct the jury sua sponte with the cautionary instruction regarding evidence of out-of-court statements made by defendant; and (3) whether Bronson's trial counsel rendered ineffective assistance by failing to investigate the source of funding of Bronson's checking account before calling a witness to testify as to the existence of that account.
This court invited Bronson to file a brief on his own behalf, and he subsequently filed a petition for writ of habeas corpus, which we discuss in the next section.
We have reviewed the record in accordance with Wende and Anders and have not found any reasonably arguable appellate issues. Competent counsel has represented Bronson on this appeal.
B. Bronson's petition for writ of habeas corpus
Although it is not entirely clear, Bronson appears to raise the following issues in his petition: (1) that his trial counsel rendered ineffective assistance; (2) that the court "fail[ed] to allow a fair and impartial trial"; and (3) that the court did not hold a Marsden hearing "when defendant asked in this matter due to defendant[']s extensive mental health his[t]ory."
1. Ineffective assistance
a. Standards
"A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 309.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] ' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 954.)
b. Application
Bronson makes a number of claims as to how his trial counsel rendered ineffective assistance. Bronson first contends that his attorney failed to call the "full witness list" that Bronson had given him, including witnesses who could have testified as to Bronson's character, his financial background, and his physical and/or mental disabilities. Bronson provides a list of 14 people who he wanted to call as witnesses. Bronson does not explain who these people are, or how their testimonies could have benefited his defense. On this record, it is impossible for us to conclude that Bronson's attorney acted unreasonably in deciding not to call any or all of these individuals to testify at trial.
Bronson also contends that his attorney failed to move for a mental competency hearing prior to trial. Bronson asserts in his petition that he has an "extensive mental health history, " and that one of his prior court cases "proves prior mental competency history." "A defendant is incompetent to stand trial when he suffers a mental disorder or developmental disability rendering him 'unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 951, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Although Bronson mentions his past "extensive mental health history, " he points to nothing in the record that could constitute substantial evidence of his incompetence to stand trial, and he has submitted no evidence to this effect in support of his habeas petition. We therefore cannot conclude that defense counsel rendered ineffective assistance by failing to raise the issue of Bronson's mental competency. (See id. at p. 953 ["Because... the record does not reflect substantial evidence of mental incompetence, counsel did not render ineffective assistance by failing to a section 1368 motion"].)
Bronson further argues that his attorney did not "properly investigate all witnesses." Again, however, Bronson does not explain precisely what his attorney should have done differently or how the alleged failure to "properly investigate" the witnesses prejudiced him.
Bronson also argues that his attorney provided ineffective assistance by not challenging the failure of the prosecution to present the actual evidence of the merchandise that Bronson is alleged to have taken from the store and/or itemized photographs of each article of clothing, and instead allowing the prosecution to present a single photograph of all the merchandise together. Bronson contends that the single photograph does not constitute sufficient proof, and that it did not give him a chance to "refute the evidence and calculate the actual value... of [the] merchandise." However, the APO testified as to how he determined the value of the merchandise in question, and attested to the fact that in determining the value of the items, he scanned in only the items that he found in the shopping cart that Bronson took out of the store. This testimony provided sufficient evidence to allow the defense to challenge the prosecution's assessment of the value of the items. In addition, defense counsel could have made a reasonable tactical decision not to make an issue out of the fact that the prosecution showed the jury a single photograph of all of the items that Bronson was alleged to have taken.
There was testimony that Bronson had collected the clothing in a manner that suggested he gave no regard to the size of the items. Defense counsel could have believed that bringing in the actual items or showing individual photographs of the items could have highlighted the fact that the items were in various sizes, and that this could ultimately prove detrimental to the defense.
Finally, Bronson argues that his trial counsel "failed in every aspect as a trial attorney to correspond with def[endant] on a regular basis." Bronson complains that he spoke with his attorney only one time, by telephone, and that he did not receive any visits from his attorney. Bronson does not suggest that there was a complete breakdown in the attorney-client relationship, nor does he indicate how additional communication between him and his attorney might have resulted in a different outcome. Bronson's case was not particularly complex, and there is no indication that trial counsel was inadequately prepared for trial or otherwise failed to adequately represent Bronson.
2. Fair and impartial trial
Bronson appears to identify two "issues" that he suggests prevented him from having a fair an impartial trial. The first issue to which Bronson refers is that "[d]uring the trial, my criminal record was alluded to w/o objection by [my] attorney." The second issue is the following: "Knowing that a violent crime robbery was dismissed during trial by jury panel. Shouldn't a new trial mistrial be instated."
Bronson provides no record citations for his contentions, and makes no legal argument whatsoever. Because of the lack of any reasoned argument on these points, we decline to address these issues. (See People v. Samayoa (1997) 15 Cal.4th 795, 864 [rejecting defendant's argument that death by lethal injection constitutes cruel and unusual punishment because "[d]efendant... neither cites legal authority, nor identifies any portion of the record on appeal, in support of his contention"]; see also, e.g., People v. Hardy (1992) 2 Cal.4th 86, 150 ["Other than a brief mention of the argument, however, he does not expand on the issue with either argument or citation to relevant authority. We thus decline to address the issue"]; In re Ross (2009) 170 Cal.App.4th 1490, 1514 (Ross) ["The issue is also forfeited because it is asserted without any argument or authority for the proposition. [Citations.]"].)
3. The court's failure to hold a Marsden hearing
The extent of Bronson's argument with respect to the lack of a Marsden hearing is the following: "Failure to hold a Marsden hearing when defendant asked in this matter due to defendant[']s extensive mental health his[t]ory." Bronson provides no citation to the record or to any applicable legal authority to support his claim. He thus has not made a sufficient legal argument with respect to the Marsden issue, and we decline to address this issue, as well. (See Ross, supra, 170 Cal.App.4th at p. 1514.)
We note, however, that in our independent review of the record with respect to Bronson's appeal, we did not find evidence that Bronson actually requested a Marsden hearing, nor that he ever expressed a concern that he was receiving constitutionally inadequate assistance from trial counsel, despite Bronson's suggestion otherwise in his petition.
IV.
DISPOSITION
The judgment of the trial court is affirmed, and the petition for a writ of habeas corpus is denied.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.