Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. TA085940
THE COURT:Curtis L. Davis (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of the unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a).) In an agreed disposition, defendant admitted two section 666.5 allegations and that he had 11 prior convictions for which he had served a separate prison term. (Pen. Code, § 667.5, subd. (b).) In exchange for the admissions, the People agreed that at sentencing, there would be a six-year “lid” on defendant’s aggregate state prison term. At sentencing on December 8, 2006, the trial court imposed an aggregate state prison term of six years, consisting of an upper term of four years for the unlawful driving offense, enhanced by two years for the service of two separate prison terms.
All further statutory references are to the Penal Code unless otherwise indicated.
On October 19, 2007, defendant personally filed a petition for a writ of habeas corpus, In re Curtis L. Davis, No. B202931. In the petition, defendant raises a complaint of ineffective trial counsel: he claims that his trial counsel did not call a witness at trial who would have exonerated him of the unlawful driving or taking offense. On October 19, 2007, this court ordered the habeas petition to be considered concurrently with the instant appeal. We will dispose of the petition for a writ of habeas corpus by a separate order.
We appointed counsel to represent him on this appeal.
After examination of the record, counsel filed an “Opening Brief,” in which no issues were raised.
On September 19, 2007, we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
I. DEFENDANT’S RESPONSE
On October 4, 2007, defendant filed a handwritten letter in which he personally complains that the appellate record shows grounds for an appeal. Defendant asserts that over his objection, trial counsel declined to call a defense witness who would exonerate him. He claims that the witness would have testified if called that the witness had permitted defendant to use the minivan for 30 minutes for $20 and that defendant was unaware that the minivan had been stolen. Defendant personally objected to the failure to call the witness in defense and said that he wanted the witness called in defense, notwithstanding trial counsel’s evaluation of the witness’s testimony. Defendant explains that trial counsel told the trial court that he was not calling the witness because the witness said that defendant had the van for 90 minutes, not for merely the 30 minutes on which he and the witness had agreed. Defendant complains that the trial court informed him that tactical decisions concerning calling a witness in defense are solely within the purview of trial counsel, and trial counsel indicated that he was making a tactical decision because he had determined the witness was not helpful to the defense. The trial court then overruled defendant’s objection.
II. THE RECORD
The record discloses that the information charged defendant with the unlawful driving or taking of a vehicle and receiving stolen property. It also alleged pursuant to section 666.5, that defendant had two previous convictions of motor-vehicle-theft-related offenses and that defendant had 11 prior convictions after which he had served prison terms within the meaning of section 667.5, subdivision (b). The trial court ordered a bifurcated trial on the prior convictions, and during the guilt phase of the trial, the jury returned a verdict of guilty on count 1, the unlawful driving or taking offense.
The trial evidence established that at about 8:00 p.m. on August 2, 2006, Ivan Barnes drove his employer’s Toyota minivan to a location on Avalon Boulevard in Compton. This was a commercial yard where he parked the truck when it was not in use. Barnes unlocked the yard’s gate, pulled his minivan into the truck yard, shut the gate behind him, and drove the minivan further into the yard. Barnes got out, put some paperwork into his truck, spoke briefly to his uncle, who was in the yard, and returned to his minivan. When he left his minivan, he left its motor running with the keys in the ignition. On his return, the minivan was missing.
Barnes immediately reported the theft. His wallet and cellular telephone were inside the minivan and were never recovered. To the date of the trial, no one had attempted to use his credit cards or his cellular telephone.
Almost seven hours later, at about 2:40 a.m. on the following day, August 3, 2006, Los Angeles Police Officer Scott Teubert saw the Toyota minivan as it turned eastbound onto Figueroa Street. The officer saw the driver of the minivan drive onto the sidewalk in an effort to quickly enter an on ramp to the 110 Freeway. The officer followed defendant and ran the minivan’s license plate. He discovered that the minivan was stolen. Assisting units arrived and stopped and arrested defendant, who was the sole occupant of the minivan.
Officer Samuel Arnold searched defendant at booking. The officer found a coupon for a free pizza, a Las Vegas resort card, and a medical bracelet, items that Barnes claimed were inside the minivan when it was stolen.
At sentencing, after considering the probation report and the prosecution and trial counsel’s arguments, the trial court imposed a six-year prison term.
At sentencing, defendant was age 46. The probation report disclosed defendant’s criminal history, which included the convictions defendant previously admitted, as well as other convictions: in case No. A587241, he was convicted of grand theft (§ 487, subd. 1) on October 9, 1979, and was granted probation; in a misdemeanor case No. 767930 in Los Angeles County, he was convicted of burglary (§ 459) on March 20, 1979, and granted probation; in a misdemeanor case No. M140474 in Los Angeles County, he was convicted of receiving stolen property and theft by the use of a credit card (§§ 496, 484, subd. (g)) on December 8, 1978 and granted probation; in misdemeanor case No. M262341 in Los Angeles County, he was convicted of petty theft (§ 484) on May 27, 1983; in misdemeanor case No. 004338 in Riverside County, he was convicted of grand theft (§ 487, subd. 1) on January 16, 1986 and granted probation; in case No. YA063764, defendant was arrested in 2005 for petty theft with a prior conviction (§ 666), but the case was dismissed in 2006 after he had served a term for violating parole after that arrest.
III. DEFENDANT’S REQUEST THAT HIS WITNESS TESTIFY
With respect to the point defendant raises on appeal, the record discloses that trial counsel had informed the trial court that there was a witness he intended to call in defense. After the People rested their case-in-chief, there was a brief attorney-client conference. Trial counsel then informed the trial court that he had interviewed his witness and that it was his intention to rest without calling the witness. Trial counsel told the trial court that defendant wished to address the trial court about his failure to call the witness as defendant disagreed with his decision.
Defendant personally complained that trial counsel “for some odd reason, he interviewed my witness and he came to the [decision] that he’s not thinking it’s in my best interests to call the gentleman to court.” Defendant said that he wanted to present the witness’s testimony in defense and that “I feel that’s my right concerning me being at this trial, receiving a fair jury trial and by me having a witness.” He made the following request: “I would appreciate it if it would be granted for him to testify . . . concerning this situation.”
The trial court inquired whether trial counsel wished to comment. Trial counsel said that he did not wish to detail in front of the prosecutor the reasons for his decision. He said that usually, he is able to obtain his client’s consent to his tactical choices in defense. However, in this case, he and defendant had a difference of opinion about whether to call the witness. He indicated that his decision had been a tactical one. He also said that he believed that the decision was one that he was required to make, and “I have to make it on what I think is best for the case, not just to satisfy [defendant].”
The trial court asked defendant whether he had had an opportunity to speak with trial counsel about the decision. Defendant responded that he wanted the witness called in defense. The trial court said that he understood defendant’s position. However, trial counsel had indicated that in his opinion, “it’s a bad move, a bad tactical move.” The trial court told defendant that the decision with regard to calling witnesses is a decision that trial counsel makes, not the defendant. The trial court also told defendant that it was certain that trial counsel had explained to defendant his reasons for declining to call the witness.
Defendant replied, “I mean, his reason is —” The trial court interrupted defendant and said, “We don’t need to go into the reason.” Defendant responded, “I understand. I’m not trying to say the reason that it’s actually per se, or he feel the witness is not needed, but me personally, he interviewed my witness and he called him into today to have him testify. He interviewed him, and he decided that way. [¶] But me personally, I would still like my only witness here to testify. The People have rested. They had their two witnesses up. I would like the jury to hear my witness. Even if it’s good or bad, I’d rather have my witness here because without that I don’t have no defense.”
The trial court pointed out that the only person in the courtroom to protect the defendant was his trial counsel. Defendant replied that he appreciated trial counsel’s assistance, but he wanted the witness to testify.
The trial court repeated that trial counsel was the person charged with making such “tactical decisions.” It explained to defendant that trial counsel had made that decision, “so we will have to stick by it. [¶] He’s the one that’s given the responsibility to see that your case is handled properly.” “. . . [H]is decision is not to call the witness. I’m going to abide by his decision.”
IV. DEFENDANT’S CLAIM ON APPEAL
In his letter, defendant does not complain of ineffective trial counsel. He asserted that the witness would have exonerated him and that he wanted the witness to testify, notwithstanding trial counsel’s decision. He explains that (1) it is his understanding that he has a right to have his witness called in defense; (2) trial counsel never told him why trial counsel refused to call the witness, except that trial counsel told him that because defendant had the van for 90 minutes, not 30 minutes, the witness did not assist his defense; (3) he claims that the length of time he had the minivan should not make a difference because the point was that the witness had permitted him to use the van and he did not know that the minivan was “hot” or stolen; and (4) the agreement that defendant had with the witness was that he could use the minivan for 30 minutes for $20 and when he took the van, he was unaware that it was stolen.
V. THE ANALYSIS
We considered defendant’s claim that he had a “right” to make the decision with respect to calling his only witness in defense. Although a defendant in a capital case has the right to have his only viable defense to the charges presented at trial (People v. Frierson (1985) 39 Cal.3d 803, 815), and trial counsel lacks the authority to override the defendant’s decision to present a defense (People v. Carter (2005) 36 Cal.4th 1114, 1197), in this case, any reliance on Frierson is misplaced. Defendant’s claim lacks merit because the record fails to demonstrate that the witness’s testimony was credible and truly exonerating. (People v. Jones (1991) 53 Cal.3d 1115, 1139-1140 [the record did not show that any defense the defendant wished to present had credible evidentiary support]; People v. Burton (1989) 48 Cal.3d 843, 856-857 [the same]; see also In re Burton (2006) 40 Cal.4th 205, 209-227; People v. Turner (1992) 7 Cal.App.4th 1214, 1221.)
The record demonstrates that trial counsel hesitated for tactical reasons to call the witness, which presumably means that in trial counsel’s estimation the witness failed to support a claim of innocence. Defendant in his Wende letter to this court indicates that trial counsel told him that the witness would testify that defendant agreed to rent the minivan from the witness for 30 minutes for $20. The witness told trial counsel, that contrary to their agreement, defendant kept the minivan for 90 minutes. This claim no doubt led trial counsel to the conclusion that the witness, if called, would simply provide further evidence to the prosecution that defendant was unlawfully driving the minivan.
VI. DISPOSITION
We have examined the entire record and are satisfied that defendant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
Section 666.5 provides for enhanced sentencing of two, three, or four years, for the unlawful driving or taking of a motor vehicle with a similar motor-vehicle theft prior conviction.
During the admission procedure, defendant admitted that in case No. BA250639, he was convicted of a violation of Vehicle Code section 10851, subdivision (a), on October 28, 2003; in case No. BA230057, he was convicted of possessing a controlled substance (Health & Saf. Code, § 11350) on June 5, 2002; in case No. YA032183, he was convicted of petty theft with a prior conviction (§ 666) on April 23, 1997; in case No. TA032842, he was convicted of grand theft and the unlawful driving or taking of a vehicle (§ 487, subd. (a); Veh. Code, § 10851, subd. (a)) on April 3, 1995; in case No. A056797, he was convicted of the unauthorized possession of a controlled substance in a prison facility (§ 4573.6) on June 2, 1992; in case No. TA008333, he was convicted of grand theft (§ 487, subd. 1) on September 13, 1990; in case No. PA06438, he was convicted of burglary (§ 459) on July 15, 1991; in case No. A468376, he was convicted of burglary and attempted grand theft (§§ 459, 664/487, subd. 1) on May 14, 1986; in case No. CR75646, he was convicted of petty theft with a prior conviction (§ 666) on October 23, 1985; in case No. C46088, he was convicted of grand theft (§ 487, subd. 1) on January 16, 1981, and in case No. CR54974, he was convicted of a violation of Vehicle Code section 10851 on October 19, 1981. He admitted that he had served prison terms following these prior convictions.