Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. LA050325
THE COURT:Abraham Soto (appellant) appeals from the judgment entered following a jury trial resulting in his conviction of arson of an inhabited structure or property (Pen. Code, § 451, subd. (b)), and the trial court’s finding in bifurcated proceedings that appellant had suffered a prior serious felony that qualified him for a five-year enhancement, as well as for sentencing pursuant to the “Three Strikes” law (§§ 667, 1170.12). After trial, the trial court heard and denied a Romero motion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The trial court sentenced him to an aggregate 11-year prison term, consisting of a doubled lower term of three years, or six years, enhanced by five years for the prior serious felony conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
On our own motion, we augmented the record with the two letters postmarked May 9, 2007, found in the Los Angeles County Superior Court file, People v. Abraham Soto, B199728. At appellant’s request, we augmented the record with the jury notes of May 3 and May 4, 2007, also found in appellant’s superior court file. We ordered exhibits 1 and 2 transmitted to this court from the superior court. Missing from the court file and from the clerk’s transcript is a minute order for May 2, 2007. However, we have a reporter’s transcript for May 2, 2007, that discloses the proceedings. (Cal. Rules of Court, rules 8.340(c), 8.155.)
We appointed counsel to represent him in this appeal.
After examination of the record, counsel filed an “opening brief” in which no issues were raised. On December 7, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.
On December 18, 2007, we received a handprinted response in which appellant raised the following issues: (1) sufficiency of the evidence; (2) the trial court improperly refused to discharge trial counsel upon his request; and, (3) he received the ineffective assistance of counsel in violation of the Sixth Amendment.
FACTS
The trial evidence established that on May 5, 2005, David Ponce (Ponce) owned a residence on Costa Mesa Drive in La Mirada. He lived there with his sister Monica Richards, who lived upstairs over the garage, and his daughter Jennifer and his grandchildren, toddlers who were one and three years old. That evening, his brother Samuel Ponce arrived to babysit the toddlers while he went out.
Ponce testified that at about 8:40 p.m., he locked the interior door and the exterior doors to his attached garage and drove off. He said that the garage also had a southwestern exterior pedestrian door. That door, which was locked, had a small hole at its base. Ponce said that he did not know appellant.
Almost immediately after Ponce left, Samuel Ponce heard two smoke alarms go off. Samuel Ponce opened the interior door to the garage and saw a fire. He carried the children outside to safety, and Richards, who had been in her room over the garage, joined him outside. Fire department personnel arrived and put out the fire.
Neighbors from across the street, Denis and Thomas Ryan, testified that about 4:00 to 4:30 p.m. that afternoon, appellant, a former neighbor, had come by for a brief visit. Appellant made an odd inquiry: he wanted to know whether the Ponces were at home. Denis Ryan replied that he did not know.
Between 8:00 and 9:00 p.m. that night, Denis and Thomas Ryan were driving to the home of a cousin in Huntington Beach. As they left their residence, they saw a flash of light and three-to-four-foot flames at the approximate location of Ponce’s southwestern exterior pedestrian garage door. They saw a person hunched up over the fire as it broke out and saw that person start running. The Ryans recognized that person as appellant.
Denis Ryan immediately telephoned 911, and in their truck, the Ryans followed appellant until they lost sight of him on the other side of Santa Gertrudes Avenue. At that point, they proceeded to their cousin’s. On their return home that night, they told Ponce about seeing appellant. The following day, they also told deputy sheriffs about seeing appellant at the garage door when the fire erupted.
At trial, Los Angeles County Sheriff’s Department arson-bomb-squad Detectives Robert Harris and Edward Nordskog testified to their opinions that (1) the fire had an incendiary origin, (2) the point of origin was the southwest pedestrian door, and (3) the accelerant used to start the garage fire was gasoline.
Defendant did not testify or present evidence in defense.
During the bifurcated trial on the truth of the prior convictions, the trial court took judicial notice of the superior court file in the case entitled, People v. Abraham Soto, case No. VA061795, a case in which appellant had been convicted of making a January 22, 2001, terrorist threat. A paralegal from the Los Angeles County District Attorney’s Office testified to the identity of certain exhibits that established defendant’s identity as the defendant in case No. VA061795.
DISCUSSION
I. Sufficiency of the Evidence
In appellant’s handprinted response, he initially complains that there was “‘no motive [and] no evidence.’” We construe this claim to be a complaint of insufficient evidence. We review that claim using the usual standard of review, which was recently reiterated in the decisions in People v. Prince (2007) 40 Cal.4th 1179, 1251 and People v. Abilez (2007) 41 Cal.4th 472, 504.
Here, there was no question that a fire erupted at about 8:40 p.m. at the Ponce residence. Two neighbors saw appellant hunching over at the pedestrian door to the attached garage at the moment of the fire’s ignition. These neighbors then saw appellant quickly leaving the neighborhood. The Ryans knew appellant well and were sure of their identifications. Also, appellant had stopped by their residence earlier that afternoon to inquire whether the Ponce residence was occupied. At trial, two sheriff’s detectives, one of whom had extensive training and experience with arson, gave their opinions that the point of the origin of the fire was the location where appellant was seen setting the fire. This trial evidence is sufficient to support the judgment. (See People v. Atkins (2001) 25 Cal.4th 76, 89–90 [setting out the elements of arson]; People v. Lee (1994) 28 Cal.App.4th 659, 664–665 [the same].)
It is irrelevant to the claim of insufficient evidence that the prosecution was unable to show that appellant had no motive for setting the fire. Such evidence is not an element of the offense, and the prosecution was not required to show motive before the jury could return a guilty verdict. (See People v. Jurado (2006) 38 Cal.4th 72, 124 [motive is not an element of the charge and need not be proved; motive or a lack thereof is simply a circumstance that may be considered by the jury in determining guilt].)
II. The Marsden Motion
Appellant complains that his request to “fire” his trial counsel was denied although appellant “did not feel safe with [trial counsel] representing [him].”
A. Background
On the eve of trial, appellant made a Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) Out of the presence of the prosecutor, trial counsel explained that as he understood it, the basis of appellant’s complaint regarding this representation was that trial counsel’s plan of defense was to challenge the reliability of the eyewitness identifications. Trial counsel additionally had asked the trial court to admit certain third-party culpability evidence, i.e., evidence that Alfonso Garcia, Jennifer’s boyfriend, may have been angry at the Ponces at the time of the fire because Garcia had just been released from jail and Ponce had refused to let him visit the residence. Appellant personally took the position that he did not wish Garcia involved in his trial and did not want the third-party culpability evidence admitted in defense. Trial counsel told the trial court that appellant disagreed with his trial strategy and no longer wanted trial counsel representing him.
When appellant personally addressed the discharge of his trial counsel, he made a different complaint. He said that trial counsel’s representation was ineffective because trial counsel had failed to adequately investigate whether another person, who was using appellant’s driver’s license or identity, and who had been arrested on May 5, 2005, had committed the arson. Appellant claimed that he had received paperwork in the mail from the Whittier court that indicated an arrest of that other person had occurred. Also, his probation officer and a federal marshall had verified the information that he had received by mail from the Whittier court. Appellant said that no one could identify him as the arsonist as he was not there when the fire started and that he lacked a motive. Appellant said, “I want everything present for the case before I take it to trial in order to feel safe with whoever is representing me.”
The trial court inquired whether there was any other basis for replacing trial counsel. Appellant said: “I’m not trying to tell him he doesn’t know how to do his job. I just honestly do not feel safe going to trial with him being that I’ve been told two different things.” The trial court interrupted appellant and said, “He says there are no records of any arrest.” Appellant replied that he would not be representing that there was another arrest unless he knew there was one. He said, “This is my freedom here. I’m not going to go to jail for something I did not do, something I am not involved in, for stuff people in the house state that I wouldn’t do.”
Subsequently, the court clerk checked her computer for the county wide records of appellant’s arrests. The court clerk later contacted a paralegal at the Los Angeles County District Attorney’s Office, who also checked the statewide records for appellant’s arrests. Neither trial counsel nor the court clerk was able to find any record of a May 2005 arrest of a person with appellant’s name.
During the discussion of the reasons for discharging counsel, appellant said the following: “Now, I do not feel safe going to trial with my—I understand, I’m sure he is a good public defender. I’m sure he has his years in his practice. I got to be sure I’m being represented to the best—I’ve been told so many times about this arrest.” He also said: “I want to feel that I’m represented to the best of their ability.”
The trial court told appellant that he had to be specific in setting out instances to justify trial counsel’s discharge, and it attempted to elicit all of appellant’s complaints about any lack of proper representation. The only complaints appellant made were as to his dissatisfaction with trial counsel’s ability to verify that another person had been arrested for the arson charge and appellant’s general feeling that he was not “safe” with trial counsel’s representation.
The trial court observed that trial counsel had subpoenaed Los Angeles County Jail records for May 2005. Also, trial counsel had sent his investigator to speak with appellant’s probation officer and was unable to verify appellant’s claim that another person had been arrested for the arson. The court clerk could locate no record of such an arrest. Consequently, that complaint failed to show that trial counsel had failed to do everything necessary to represent appellant effectively. Also, appellant’s nonspecific complaint that he did not feel safe as he was not convinced that trial counsel was doing his best for him was insufficient to support an order discharging trial counsel.
The trial court denied appellant’s motion for the discharge of trial counsel.
B. The Analysis
A defendant is entitled to have appointed counsel discharged upon a showing that counsel “‘“is not providing adequate representation”’” or that counsel and defendant “‘“have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”’” (People v. Memro (1995) 11 Cal.4th 786, 857.) We review a trial court’s decision declining to relieve appointed counsel for an abuse of discretion. (People v. Berryman (1993) 6 Cal.4th 1048, 1070.)
The record fails to demonstrate an abuse of discretion. The trial court gave appellant an ample opportunity to explain his dissatisfaction with counsel. (People v. Abilez, supra, 41 Cal.4th at p. 489.) Trial counsel and the trial court made every effort to discover whether someone else had been arrested for the arson on May 5, 2005. Appellant’s subjective feelings that he was not “safe” with trial counsel or his feelings that trial counsel was not doing the best job for him did not compel a discharge of counsel. Defendant did not have a constitutional right to be subjectively satisfied with his trial counsel—the Sixth Amendment and the California Constitution guarantee only that a defendant will be effectively represented. Nothing in this record demonstrates ineffective representation, nor a cognizable conflict with trial counsel. (See Morris v. Slappy (1983) 461 U.S. 1, 14 [the Sixth Amendment does not guarantee “‘meaningful relationship’” between the accused and appointed trial counsel]; People v. Jeffers (1987) 188 Cal.App.3d 840, 850–851 [that the defendant would have been happier had the trial court discharged his present counsel and appointed new trial counsel is not an adequate reason for discharging trial counsel].)
III. Ineffective Trial Counsel
Appellant complains that: (1) “at my request of having a witness present, [trial counsel] denied me [that right]”; (2) “the jury never heard all there is to my benefit”; (3) the credibility of the witnesses was never argued, nor were all defense theories argued; (4) “the fact that Miss Perez stated that she knows that [appellant] did ‘not’ due [sic] this act was never heard by the jury”; and (5) “the fact that the Perez family also stated that there is ‘no’ reason for [appellant to have done] such a thing, [and he lacked motive] was never heard by the jury either.”
We construe these complaints as claims of ineffective trial counsel.
A. Background
Before sentencing, the trial court brought trial counsel’s attention to a letter postmarked May 9, 2007, that appellant had sent to the trial court.
In the first of these two letters, beginning with “To the Honorable Judge Mr. Falcone,” appellant complained that: (1) there was another witness that was left out who he requested testify during the trial; and (2) he wanted trial counsel to call “Minie Perez” as a witness, and she was “left out.” He complained that he had been denied a “fair trial” and for that reason, requested a retrial as there was a “lack of evidence.” He asked the trial court to “look into” “a Romero act,” the “Trabeta v. Youngblood landmark case,” “your 3 party theory,” and “the fact that people at home of scence [sic] know I did not due [sic] this.” He asked the trial court to contact his “old” probation officer and his federal public defender to verify another person was arrested for the arson on May 5. He complained he had asked for a “995” as Miss Perez knew something, and he had asked for a “138.5,” but his trial counsel did not put that “into consideration.” He complained that he had a feeling that he could have been better represented.
In the other letter, which bears a date of receipt of May 11, 2007, appellant again complained that trial counsel had “left out” two witnesses. Appellant said that trial counsel should have used the “third party theory” that he did not want used during the trial. He said that he wanted his former probation officer called as a witness to explain “the arrest that was made on May 5, 2005,” but trial counsel refused to call that witness. Appellant said that he had asked trial counsel to look into a “995 motion,” but “I was laugh [sic] at.” He asked for a “138.5” that was “also denied.” He wanted a retrial “in hopes to have better representation and all the other facts to play part in my case such as the other witness who seen someone else running that don’t fit description.” Also, “Miss Perez Monica who also has insite [sic] on case.” He asked the trial court to “look into” his case and grant him a retrial.
The trial court commented to trial counsel that in the letter, appellant made claims that certain witnesses were not called during the trial in defense. Trial counsel indicated that he had previously discussed these claims with appellant on numerous occasions.
Appellant personally told the trial court that he “would really like to have a chance to have a fair trial.” He argued that nothing said by the two eyewitnesses tied him to the crime, that there was more “to argue,” and the eyewitnesses made conflicting statements in the transcripts. He pointed out some other testimony that he asserted was conflicting.
The trial court told appellant that it had no motion for a new trial before it. The trial court gave a brief summary of the trial evidence and said that it was sufficient to support appellant’s conviction. The trial court told appellant that his trial counsel had done everything “he was supposed to do.” If the trial court was wrong on any point, appellant could raise it on appeal. The trial court then moved on to the trial on the prior convictions and the sentencing.
B. The Analysis
“‘To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’ [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1052–1053.)
Insofar as appellant argues that trial counsel failed to argue all the inferences in defense during final argument, we reviewed trial counsel’s comments during final argument. Trial counsel argued the reliability of the identification and witness credibility. He argued that the Ryans’ identifications should not be believed for if the Ryans had been certain that appellant was the arsonist, they would have revealed it to the 911 operator, and not waited until later that night to make the identification. Trial counsel also argued appellant’s lack of motive.
There is no evidence in this record to support appellant’s claims that the jury “never heard all there is to my benefit” during the trial. Appellant makes claims that he had two witnesses who were pertinent to his case and asked trial counsel to call those witnesses. But trial counsel indicated to the trial court that there were no such witnesses and that he had explained to appellant that the persons appellant wished him to call would not exonerate him. We presume from trial counsel’s comments in response to the trial court’s presentencing inquiry, and the lack of any evidence in this record of any additional exonerating evidence, that if trial counsel had discovered any further exonerating evidence in preparing appellant’s case for trial, he would have presented it at the trial. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)
We have examined the entire record and are satisfied that appellant’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.