Opinion
E065775
05-18-2017
THE PEOPLE, Plaintiff and Respondent, v. JEREMY KRAFT GSOELL, Defendant and Appellant.
Jeremy Kraft Gsoell, in pro. per.; Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1502532) OPINION APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed. Jeremy Kraft Gsoell, in pro. per.; Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Jeremy Kraft Gsoell was charged by felony complaint with attempted murder. (Pen. Code, §§ 664, 187, subd. (a), count 1.) It was also alleged that he inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a dangerous weapon (§12022, subd. (b)(1)). Defendant was appointed counsel and pled not guilty. He then moved for substitute counsel, pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court denied the motion. Following a preliminary hearing, an information was filed, charging defendant as charged in the felony complaint. A first amended information was filed, which added a count for assault with a deadly weapon (§ 245, subd. (a), count 2), with a great bodily injury allegation attached (§ 12022.7, subd. (a)). The amended information also alleged that defendant had one prior serious felony (§ 667, subd. (a)(1)), one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and two prior prison convictions (§ 667.5, subd. (b)). He pled not guilty, denied all allegations, and filed a motion to represent himself, pursuant to Faretta v. California (1975) 422 U.S. 806, 835, which the court granted.
All further statutory references will be to the Penal Code, unless otherwise noted.
Defendant filed an in propria persona motion to set aside the information under section 995, on the ground that he had "not been provided sufficient evidence to bind over for trial." He concurrently filed a motion to dismiss "for discovery abuse," on the ground that the prosecution failed to timely provide him with exculpatory evidence. Defendant then requested a public defender, and prior counsel was reappointed. He filed a second Marsden motion, which the court denied.
The two in propria persona motions were apparently never set for hearing.
A second amended information was filed, which was virtually unchanged from the first amended information. The defense filed a section 995 motion to set it aside, on the ground that there was insufficient evidence to support the great bodily injury allegation or the attempted murder charge. The court denied the motion.
Following a jury trial, defendant was found guilty of count 2. The jury also found true the allegation that he personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) It found him not guilty of the attempted murder alleged in count 1, and deadlocked on attempted voluntary manslaughter as a lesser included offense. Defendant admitted the prior conviction allegations. The court sentenced him to a total of 14 years in state prison.
The court dismissed the lesser included offense charge.
Defendant filed a timely notice of appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of July 22, 2015, T.R. and R.J. (the victim) were sleeping in a tunnel in a flood control channel drainage area (the wash). T.R. was sleeping in a sleeping bag, and the victim was sleeping on a couch. At some point, defendant appeared, asking for the victim. The victim and T.R. woke up, and the victim let defendant into the tunnel. T.R. got up to go the bathroom in the middle of the tunnel, and defendant came inside. Defendant asked the victim if he wanted to smoke methamphetamine with him. The victim gave defendant a glass pipe, but no one had a lighter, so the victim tried to light the pipe with matches. However, the matches would not stay lit due to the wind blowing through the tunnel. The victim became frustrated and threw the pipe against the wall, and it shattered. Defendant, who was sitting on a chair, became very upset, lashed out at him, and started hitting him. Defendant hit the victim on the left side of his jugular vein, the right side of his jugular vein, and then over his eyelid. When the victim stood up, he saw blood squirting out the left side of his neck and eyebrow and realized he had been stabbed. By that time, defendant was walking out of the tunnel. The victim ran out of the wash area, toward some apartments. He stopped a van and told the occupants to call 911 because he had been stabbed. He started screaming for help. He was bleeding a lot and collapsed on the sidewalk. The police arrived first, then the paramedics. The victim was treated at the scene and then taken to the hospital. When he woke up, he had tubes down his throat, and a bandage or brace around his neck. He also had staples in his neck. His eye was swollen so he could not see out of it, and he had stitches on his eyebrow. The victim stayed in the hospital approximately two weeks.
At trial, Officer Cozine testified that she was the first officer to respond to the crime scene. She observed the victim "covered in blood." He was lying on the ground, holding his neck, "gurgling." She asked him what happened, but he was unable to talk.
Officer Granado responded to the crime scene and also testified at trial. He said when he arrived at the flood control channel, he conducted a walk-through and observed a trail of blood, starting on top of a couch in a makeshift living area, going out of the channel, and leading up to an apartment complex.
Officer Fields testified at trial that she responded to the scene just as defendant was coming onto the roadway. Officer Verhulst had defendant at gunpoint. Officer Fields observed defendant drop a black knife on the ground and then drop on his knees, with his hands in the air. She did not observe any injuries on him and did not recall him asking for medical aid. Officer Verhulst testified at trial that when he approached defendant, defendant was lying on the ground, so he immediately handcuffed him and patted him down for weapons. He did not find any weapons on defendant's person, but he observed the black knife on the ground. Officer Verhulst did not observe any injuries or hear defendant ask for medical attention.
Officer Lee responded to the scene after defendant had been detained. He testified that defendant requested medical treatment for an alleged anxiety attack.
At the close of the prosecution's evidence, defense counsel made a motion under section 1118 to set aside the charges because he did not believe a reasonable jury would find that defendant did not act in self-defense. The court denied the motion. Defense counsel then informed the court that it would not be calling any witnesses. The jury found defendant guilty of count 2, and found true the allegation that he personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The jury found him not guilty of the attempted murder alleged in count 1.
ANALYSIS
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues: (1) whether the trial court prejudicially abused its discretion in denying defendant's Marsden motion for substitute counsel; (2) whether the court erred in denying defendant's section 995 motion to dismiss the great bodily injury enhancement; (3) whether the court erred in denying defendant's section 1118.1 motion for acquittal; and (4) whether the court committed prejudicial error in failing to instruct the jury that the verdict on each count had to be unanimous. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. He has filed a 15-page, handwritten brief. The brief is written in narrative form, and it appears that defendant is attempting to claim the following: (1) the police failed to advise him of his Miranda rights when he was arrested and asked incriminating questions; (2) the police ignored his requests to document his injuries and for medical attention; (3) his personal requests for discovery were denied; (4) the police officers who testified at the preliminary hearing were deceptive and exaggerated their testimony to persuade the court to hold him to answer, and there was evidence withheld at the preliminary hearing; (5) his Sixth Amendment right to self-representation was violated when the court ignored his in propria persona motions to dismiss, and he was denied law library privileges at West Valley Detention Center; (6) the court erred by denying his access to evidence that was used at trial; (7) he received ineffective assistance of counsel (IAC) when his counsel failed to adequately investigate his case, withheld discovery from him, and failed to communicate details and strategies concerning his trial; (8) the case was "based on lies told by an unreliable source" and the victim; (9) there was prosecutorial misconduct, in that the prosecutor solicited misleading and deceptive testimony from the officers at the preliminary hearing, and withheld photos from the defense at the preliminary hearing, in violation of Brady v. Maryland (1963) 373 U.S. 83; the prosecutor also failed to turn over audio recordings and statements made to officers, potentially in violation of Brady v. Maryland, supra, 373 U.S. 83; (10) this court should review the prosecutor's closing arguments for prosecutorial misconduct; (11) this court should review the trial court's answer to a jury question to see if it was appropriate; and (12) there was insufficient evidence to support his conviction.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). --------
At the outset, we note that defendant simply asserts these issues with scant citations to authority or to the record, and little if any explanation as to how these issues affected the trial or its outcome. Nonetheless, we shall address his arguments.
Defendant first claims that the police failed to advise him of his Miranda rights when he was arrested. Miranda warnings are required "prerequisites to the admissibility of any statement made by a defendant." (Miranda, supra, 384 U.S. at p. 476.) Defendant fails to specify any incriminating statements that were admitted at trial, in violation of Miranda.
Defendant's next claim that the police ignored his requests for medical attention and to document his injuries is immaterial, since he states that he later received treatment at the West Valley Detention Center. Furthermore, two officers testified that they did not observe any injuries on him.
Defendant alleges that his requests for discovery were denied. However, he has not alleged that his counsel was denied discovery or explained how his failure to personally receive discovery prejudiced the proceedings against him.
Defendant next contends the officers exaggerated their testimonies at the preliminary hearing in order to persuade the court to hold him to answer. To the extent he is arguing that the evidence at the preliminary hearing was somehow insufficient to hold him to answer, we disagree. Section 872 "provides in substance that if it appears from the preliminary examination that a public offense has been committed, 'and there is sufficient cause to believe the defendant guilty thereof,' the magistrate must make an order holding him to answer. 'Sufficient cause' within the meaning of section 872 is generally equivalent to that 'reasonable or probable cause' required to justify an arrest." (Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147.) The evidence here was sufficient to hold defendant to answer.
As to defendant's claims that his Sixth Amendment right to self-representation was violated and he was denied access to evidence that was used at trial, such claims are immaterial, since he did not ultimately represent himself at trial. We note that he was initially appointed counsel, but then requested to represent himself; however, he later requested that the court reappoint counsel.
Defendant next claims that he received IAC; however, such claim fails. A defendant who claims IAC must establish that his counsel's performance was deficient under an objective standard of professional competency, and that there is a reasonable probability that but for counsel's errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) Defendant contends his counsel failed to adequately investigate his case, withheld discovery from him, and failed to communicate details and strategies concerning his trial. However, he has failed to argue or establish that his counsel's allegedly deficient performance resulted in prejudice.
Defendant also asserts prosecutorial misconduct, essentially claiming that the prosecutor solicited misleading testimony from the officers at the preliminary hearing, and withheld crime scene photographs and audio recordings of statements made to officers. He additionally asks us to review the prosecutor's closing argument for misconduct. First, defendant did not object to any of the alleged misconduct he now claims; thus, he has forfeited his claims. (People v. Whalen (2013) 56 Cal.4th 1, 52 (Whalen) ["To preserve a prosecutorial misconduct claim for appeal, the defendant '"must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety"' unless doing so would be futile or an admonition would not cure the harm."].) Even if he did not forfeit it, he has not shown that he was prejudiced by the prosecutor's alleged misconduct. "A prosecutor's conduct violates the federal Constitution when it infects the trial with such unfairness as to make the resulting conviction a denial of due process. Conduct by a prosecutor that does not rise to this level nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (Ibid.) "'A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] . . . .'" (People v. Tully (2012) 54 Cal.4th 952, 1010.) As to defendant's request for us to review the prosecutor's closing argument for any misconduct, he is in error as to this court's function on appeal. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. [Citation.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
Finally, defendant states that he believes the prosecution failed to meet its burden of proof and asks this court to evaluate the evidence and decide if it was sufficient to support his conviction. He does not point out in what regard the evidence was insufficient, but does claim he acted in self-defense. Again, it is not this court's function to make arguments for defendant. In any event, he was convicted of assault with a deadly weapon, and the evidence showed that he stabbed the victim with a knife on the left side of the victim's jugular vein, the right side of his jugular vein, and then over his eyelid. The victim was taken to the hospital and stayed for two weeks. He had to have staples in his neck and stitches on his eyebrow. We further note that, at trial, defendant argued he acted in self-defense, but the jury simply did not believe his claim.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.