Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the Los Angeles County Super. Ct. No. TA 088240, Judith L. Meyer, Judge.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
COOPER, P. J.
SUMMARY
A jury convicted Shawn Christopher Eisman of petty theft and he was sentenced to prison under Penal Code section 666 (petty theft with a prior conviction). On appeal, Eisman’s counsel filed a brief requesting this court’s independent review of the record under People v. Wende (1979) 25 Cal.3d 436. Our review of the record shows no arguable issues, and we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Shawn Christopher Eisman was arrested on December 20, 2006, after security personnel at a Target store observed him concealing a toy on his person and exiting the store without paying. An amended information charged him with petty theft with a prior conviction. (Pen. Code, § 666.) The information alleged a prior felony conviction (robbery) and five prior prison terms (Pen. Code, § 667.5, subd. (b).) The convictions and prior prison terms were also alleged as circumstances in aggravation (Cal. Rules of Court, rule 4.421(b)(2)&(3)), and it was alleged Eisman was on probation and parole on a conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) when he committed the crime alleged, and that he performed unsatisfactorily on parole. (Cal. Rules of Court, rule 4.421(b)(4)&(5).)
Eisman pled not guilty. Trial was set for March 22, 2007. On that date, Eisman expressed dissatisfaction with his representation by the deputy public defender, and asked to represent himself. The trial court advised him he would have to be ready to try the case by Monday, March 26. When Eisman replied he would not be ready, the court denied his request on the ground it was untimely. Eisman then indicated he wished to discharge his attorney, and a Marsden hearing was held. Eisman said he asked his lawyer to send out an investigator to gather facts, take measurements, check the camera and videotape which had recorded his actions at the store, and so on, but his lawyer had not done so, and “keeps trying to push [a] deal at me.” Counsel stated an investigator would not help because the Target building no longer existed; Eisman had signed a statement indicating that he acknowledged he had taken the items, and the issue was that Eisman was not happy with the prosecution’s plea offer. Eisman acknowledged he was “aware of all this, yes,” but that the allegedly stolen items were “never found on me,” and the item they did find “wasn’t from their store.” The trial court denied the Marsden motion.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
There was testimony at trial that the Target store was “not there anymore ….”
On the trial date (March 26), the court denied defense counsel’s demurrer to the aggravating factors alleged in the amended information. Eisman rejected the court’s offer of 32 months in state prison (the low term, doubled, with admission of the strike). Eisman renewed his Faretta motion to represent himself, and the motion was again denied as untimely. The court granted Eisman’s motion to bifurcate the priors. Eisman admitted the prior robbery conviction on which the charge of petty theft with a prior was based. Before trial began the following day, Eisman moved to set aside the information (Pen. Code, § 995, subd. (a)(2)(B)), contending no evidence of aggravating factors under court rules was presented at the preliminary hearing. The court denied the motion, observing that the aggravating factors (prior convictions, prior prison terms, and parole factors) (1) did not have to be proved up because of their nature, and (2) were proved up based on Eisman’s certified rap sheet (People’s Exhibit 1, introduced by reference at the preliminary hearing) showing multiple violations of parole.
The matter was tried before a jury on March 27 and 28, 2007. Security personnel from Target and the two arresting officers testified, and a videotape of the incident was played for the jury. The defense presented no evidence. The evidence showed that on December 20, 2006, the Target security manager watching closed circuit television monitors saw defendant conceal a boxed toy in the front waistline of his pants. The security manager alerted two uniformed security guards, who positioned themselves outside the store on either side of the exit. The manager watched the defendant walking fast toward the front of the store. As the defendant approached the registers, the manager left the security office, leaving the camera focused on the exit, and observed the defendant pass the open registers without paying. The manager exited through the nearby entrance doors and confronted the defendant after the defendant exited. The manager identified himself as store security, whereupon the defendant ran to his left, where he crashed into one of the waiting security guards. There was a scuffle during which a package of batteries fell to the ground, the security personnel handcuffed Eisman, and Eisman said he didn’t want to go to jail. Eisman was escorted back into the store and taken to the security office. In the office, Eisman pulled a Cabbage Patch toy from the back of his waistline and dropped it on the floor.
The security personnel summoned the police. Deputy sheriff Steven Sather read Eisman his Miranda rights, and Eisman told him understood the rights and wanted to talk to Sather. Sather asked Eisman if he stole the batteries and the cabbage patch toy, and Eisman said, “Yes. I’m sorry.” The statement was noted in a police report. The police then removed the boxed toy from Eisman’s pants leg.
While Eisman was in the security office, the items were scanned to determine their value, and photographs were taken of Eisman and the items. A videotape played for the jury showed all of Eisman’s actions in the store, beginning with his concealment of the boxed toy and his exit without paying. The cameras did not record the confrontation outside the store, but the videotape shows Eisman’s reentry into the store escorted by the security personnel.
The jury found Eisman guilty of petty theft. Eisman admitted his prior robbery conviction and his five one-year priors, and the court granted the prosecution’s motion to dismiss the allegations of aggravating circumstances under the Rules of Court.
At Eisman’s sentencing hearing on April 26, 2007, the court denied Eisman’s Romero motion, refusing to strike Eisman’s strike because his current offense was almost identical to the strike offense, and there were no factors in mitigation for purposes of imposing a low term. The court sentenced Eisman on the violation of Penal Code section 666 to five years in state prison – the midterm sentence of two years’ imprisonment, doubled (Pen. Code, § 1170.12), plus a one-year enhancement for one of Eisman’s prison priors. (Pen. Code, § 667.5, subd. (b).) The court struck the remaining prison priors; required Eisman to provide DNA and other samples as provided in Penal Code section 296; and gave Eisman custody credits totaling 192 days (128 days actual custody and 64 days good time/work time). In addition, Eisman was required to pay a restitution fine of $200 (Pen. Code, § 1202.4, subd. (b)); a parole revocation restitution fine of $200, stayed (Pen. Code, § 1202.45); and a court security fee of $20. (Pen. Code, § 1465.8, subd. (a)(1).)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Eisman filed an appeal, and we appointed counsel to represent him. Eisman’s appointed counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, setting forth the facts of the case but raising no specific issues. In response to notice from his counsel of his right to file a supplemental brief, Eisman submitted a two-page letter, together with an earlier four-page letter he had written to his appellate counsel.
DISCUSSION
We have reviewed the entire record and Eisman’s written contentions, and have found no arguable issue. Eisman asserts his counsel was incompetent, and he contests the denial of his Faretta and Marsden motions, but his claims find no support in the record. The essence of his claim is that his counsel failed to investigate all possible grounds for his defense, so that he would have been better off representing himself. Specifically, he asserts:
Counsel should have sent an investigator to the crime scene to collect information, such as the number of cameras and the number of registers Eisman passed, “[a]ctual distances from where I was seen placing property under my shirt till I was confronted,” and so on. Counsel should have obtained witness statements “before they had a chance to collaborate with the D.A. or the detectives.”
Counsel should have obtained the entire store surveillance video so that it could have been shown to the jury. The videotape shown was “biased and one sided,” and did not show the altercation outside the store or what occurred in the security office afterward. “They could of assaulted me, planted evidence, it could of shown lack of evidence. Such as no items found by them. Or the one item found was in a Target shopping bag.”
His lawyer did not check things like the security officers’ record of arrests for petty thefts, or “look for a pattern or to be able to cast any kind of doubt on their testimony.” Counsel made no effort on his behalf; if he had had a lawyer he could trust or believe, he “might of been persuaded to take the offered plea bargain.”
The detective who investigated the matter after Eisman’s arrest was not called as a witness, and “[w]hat he could of said or added, we will never know because once again my attorney chose not to follow up on the avenue I chose to investigate.”
Eisman had “numerous run-ins” with Deputy Sheriff Luther (one of the arresting officers) and his brothers, one of whom sent Eisman to prison and the other of whom planted dope on him (Eisman) and lied in his report.
His lawyer did not present witnesses Eisman wanted at his sentencing hearing (his daughter, his parole officer, and a friend) as to his conduct on parole.
Eisman’s claim his counsel did not properly represent him is without merit. “To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288.) Here, the record does not support an affirmative conclusion on either point. Of course, criminal defense attorneys have a “‘“duty to investigate carefully all defenses of fact and of law that may be available to the defendant . . .,”’” and if counsel’s failure to do so “results in the withdrawal of a crucial or potentially meritorious defense,” then the defendant has not had the assistance to which he is entitled. (People v. Pope (1979) 23 Cal.3d 412, 425.) In this case, however, Eisman has identified no potentially meritorious defense of fact or law that might have been available to him. His claim that, if a proper investigation had been performed, a defense “would of presented itself following the investigation” is pure speculation. There is no hint in the record of any defense that a reasonably competent attorney might have uncovered by performing the investigations Eisman suggests. As for the videotape, it showed all of the circumstances of the theft: the security manager testified that “[i]n this situation, . . . it was an uninterrupted, as-it-happened real-time event. There was no type of clips. From beginning to end, it’s the true uncut version of the incident.” Eisman does not suggest how “all of the store surveillance video, not just what store security chose to use,” would result in any meritorious defense, of fact or law. In short, it is impossible on this record to conclude that trial counsel failed to act as a diligent advocate, or that a more favorable determination would probably have resulted had the investigations Eisman desired been performed. (People v. Lewis, supra, 50 Cal.3d at p. 288.)
To the extent Eisman’s brief may be read as a separate challenge to the trial court’s rulings on his Marsden and Faretta motions, the challenge is without merit. Eisman’s Faretta motions were untimely, and the Marsden motion was made on the same basis – counsel’s failure to investigate – as the claim we have just rejected.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, J., EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.