Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. No. MCR025911, Edward P. Moffat, Judge.
Fred Gagliardini, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Matthew Reade O’Donnell of grand theft. He contends his conviction must be overturned because his trial counsel was ineffective and the trial court failed to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL SUMMARY
O’Donnell was charged with grand theft of an amplifier, a felony, and misdemeanor possession of marijuana arising out of an incident at a concert at the Madera fairgrounds.
Jonathan Rapp, an audio engineer, provided equipment for the concert. After the last band had performed at the concert, Rapp, his employee and stagehands began getting Rapp’s equipment ready for loading. About that time, Rapp noticed a man, whom he identified as O’Donnell, walking toward the backstage entrance carrying an amplifier that belonged to Rapp. O’Donnell was not Rapp’s employee; he was not a stagehand; and Rapp did not give O’Donnell permission to take or move the amplifier.
Rapp confronted O’Donnell and asked where he was going with the amplifier. O’Donnell responded that “someone” had told him to carry it somewhere. Rapp did not believe O’Donnell because O’Donnell was walking in the opposite direction from where the equipment needed to be moved. Rapp summoned event staff, standing 15 to 20 feet away, and they approached. When event staff asked O’Donnell to set down the amplifier, he ran away, leaving the amplifier behind.
The event staff chased after O’Donnell and apprehended him. O’Donnell was easy to locate because the concert crowd had left and O’Donnell was the only person running. A deputy sheriff arrived and handcuffed O’Donnell. Rapp identified O’Donnell as the person who was walking away with Rapp’s amplifier. Later at trial, however, Rapp was unable to identify O’Donnell.
The amplifier had a retail value of $1,700 and a resale value of $500. Upon being arrested, O’Donnell told the officer, “I didn’t do anything.” A search incident to arrest revealed that O’Donnell had a small, usable amount of marijuana in his possession.
O’Donnell testified at trial that he arrived at the concert around 3:00 p.m., began helping the event staff, and was given a backstage pass. After the concert was over, O’Donnell was approached by security, who explained that he was being arrested. When O’Donnell tried to ask what was going on, security tackled him to the ground. O’Donnell testified that he had never seen Rapp before the trial and did not touch the amplifier in question. He admitted to being combative with event staff and to possessing a small amount of marijuana.
Jeff Crow, O’Donnell’s friend, testified on O’Donnell’s behalf. Crow worked for Clear Channel Radio and was at the concert as part of his job duties. Crow saw O’Donnell working backstage at the concert. O’Donnell had made plans to catch a ride home from Crow. Crow did not see O’Donnell with an amplifier, but Crow was not in the area when O’Donnell was arrested.
Jason Lindsey, another of O’Donnell’s friends, was about 25 to 50 feet away when this happened. At the time of trial, Lindsey was in Los Angeles.
The jury found O’Donnell guilty as charged. Trial counsel, Craig Collins, requested to be relieved as counsel for the purposes of filing a new trial motion. The trial court appointed alternate counsel, Robert Hirth, to prepare and pursue a motion for new trial.
The motion for new trial was heard on September 7, 2006. Collins testified that he had requested Lindsey be subpoenaed for trial. It was not until trial commenced that Collins realized the subpoena apparently had not been served and Lindsey was at Disneyland. Collins did not request a continuance because he felt it would be denied as untimely.
Collins acknowledged that he never spoke to the prosecutor or the trial court about a possible brief continuance, but did make a conscious choice not to seek a continuance. He also stated that he “never made a decision not to call” Lindsey to the stand. He could not call Lindsey because the witness was unavailable.
Lindsey submitted an unsworn statement in support of the motion for new trial. Lindsey’s statement stated that after the concert, he left the backstage area with O’Donnell and they parted ways. He did not see O’Donnell with an amplifier and was sure that O’Donnell would never “take anything that did not belong to him.”
After hearing argument from Hirth and the prosecutor, the trial court denied the motion for new trial. Collins was reappointed and represented O’Donnell during the sentencing hearing.
The procedure followed by the trial court of substituting new counsel for the new trial motion and then reappointing trial counsel for sentencing has been held to be incorrect. (People v. Eastman (2007) 146 Cal.App.4th 688, 698.) Neither party has raised the issue, however, so we mention it merely to assist the trial court.
DISCUSSION
O’Donnell contends the trial court abused its discretion in denying his motion for new trial. Alternatively, he contends Collins provided ineffective assistance of counsel. In a supplemental brief, O’Donnell contends the trial court was required to conduct a hearing pursuant to Marsden, supra, 2 Cal.3d 118.
I. Motion for New Trial
We review a trial court’s ruling on a motion for new trial under the deferential abuse of discretion standard. (People v. Davis (1995) 10 Cal.4th 463, 524.) We conclude the trial court did not abuse its discretion in denying O’Donnell’s motion.
The record reflects that at the start of the trial, the prosecutor and Collins submitted their respective witness lists; Lindsey was not on either list. When the new trial motion was filed, there was no declaration submitted by Lindsey in support of the motion, merely an unsworn statement.
An unsworn statement or unsworn testimony does not constitute evidence. (People v. Lee (1985) 164 Cal.App.3d 830, 841.) A trial court is justified in according little, if any, credence to unsworn testimony. (People v. Cox (1991) 53 Cal.3d 618, 697.)
The only evidence before the trial court in support of the motion for new trial was the testimony of Collins that he intended Lindsey be subpoenaed and available for trial. There was no evidence submitted as to the nature of Lindsey’s testimony.
Prior to ruling, the trial court noted that even if Lindsey had testified consistent with his unsworn statement, his testimony would have been cumulative of the testimony of Crow. The trial court found that the proffered evidence was cumulative and would not have affected the outcome of the trial.
Under these facts, we conclude the trial court did not abuse its discretion in denying the motion for new trial.
II. Ineffective Assistance of Counsel
Alternatively, O’Connell contends Collins provided ineffective representation, warranting a reversal of his convictions. We disagree.
“A defendant making a claim of ineffective assistance of counsel has the burden to prove that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for the error or omission, the defendant would have obtained a more favorable result. [Citations.]” (People v. Thurman (2007) 157 Cal.App.4th 36, 47.)
“In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘“whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies .… If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”’ [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Here, even assuming Collins’s representation was deficient because he failed to call Lindsey to testify, O’Donnell has not established prejudice. Lindsey’s presumed testimony was cumulative not only of Crow’s testimony, but also of O’Donnell’s testimony. Also, there was an admitted gap in Lindsey’s observation of O’Donnell during which O’Donnell could have taken the amplifier. In order to credit O’Donnell’s version of the events, the jury would have to disregard Rapp’s testimony, the testimony of Russell Rocca, the stage manager, and the testimonies of the deputy sheriffs. Clearly, the jury credited the testimonies of these individuals and found the testimony of O’Donnell and his friend, Crow, unpersuasive. There is no indication that testimony from another of O’Donnell’s friends, Lindsey, would have swayed the jury’s verdict.
III. Marsden Requirement
In supplemental briefing, O’Donnell contends that pursuant to People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez), the trial court was required to conduct a Marsden hearing. We disagree.
On March 29, 2007, Collins informed the trial court that he intended to seek a new trial for O’Donnell. O’Donnell did not make any comment.
Thereafter, on May 25, 2007, Collins informed the trial court that no motion had been prepared as he felt substitute counsel should prepare the motion because of Collins’s failure to make sure that Lindsey was subpoenaed. The trial court relieved Collins as counsel and appointed Hirth as substitute counsel. Again, O’Donnell made no comment, except to waive time for sentencing.
In Mendez, the defendant spoke out and raised numerous concerns regarding counsel’s performance. (Mendez, supra, 161 Cal.App.4th at p. 1366.) Instead of conducting a Marsden hearing, the trial court appointed substitute counsel to investigate whether there were grounds for a new trial. Substitute counsel reported that it was not appropriate to proceed with such a motion at that time. (Mendez, at p. 1366.) This court concluded that the defendant had complained about counsel’s performance and the trial court erred in failing to conduct a Marsden hearing. (Mendez, at pp. 1367-1368.) The appointment of substitute counsel to investigate whether there was grounds for a motion for new trial did not relieve the trial court of its obligation to hold a Marsden hearing. (Mendez, at pp. 1367-1368.)
In O’Donnell’s case, he never expressed complaints about the adequacy of Collins’s representation. Further, unlike in Mendez, a new trial motion was filed in O’Donnell’s case; Collins testified; and the trial court had the opportunity to hear and evaluate the possible ineffective representation. (Mendez, supra, 161 Cal.App.4th at pp. 1366-1368.)
Neither party has raised the obvious issue of a lack of prejudice to O’Donnell. Had the trial court held a Marsden hearing as suggested, and had O’Donnell prevailed at the hearing, the trial court would have appointed new counsel to represent him. New counsel was appointed by the trial court. There was no prejudice.
We conclude the trial court was not obligated to conduct a Marsden hearing when O’Donnell failed to raise any concerns regarding Collins’s representation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.