Opinion
G057011
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. DEAN PATRICK WEINTRAUT, Defendant and Appellant.
Harmon Reed Webb, under appointment by the Court of Appeal; Dean Patrick Weintraut, in pro. per., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF0431) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Harmon Reed Webb, under appointment by the Court of Appeal; Dean Patrick Weintraut, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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FACTS
According to Jacobo Reyes, defendant Weintraut loaned him $600. Reyes failed to pay Weintraut back. Weintraut drove to Reyes' place of business, got out of his car with a knife, grabbed Reyes by the collar, demanded the $600 ("pay me my fucking money'"), and jabbed at Jacobo's midsection with the knife, threatening, "I'm going to kill you. You know, I get crazy." Defendant's version was that he had a knife with him only because Reyes had taken an oath to repay the money "on a knife" and only a pen was involved in their confrontation.
Weintraut was convicted by a jury of making a criminal threat (Pen. Code § 422 sub. (a)) with an enhancement for using a dangerous or deadly weapon (the knife), and misdemeanor assault. We reversed his conviction and the matter was retried. This time the jury again convicted Weintraut of assault, but could not agree on the attempted threat charge. The trial judge dismissed that in the interests of justice and sentenced Weintraut to 180 days in the county jail. Credit for the time he had already served resolved the sentence.
All further statutory references are to the Penal Code.
DISCUSSION
Weintraut filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief setting forth the facts of the case. Counsel did not argue against his client, but advised the court he could find no issues to argue on appellant's behalf. He told us what issues he had considered but rejected as untenable. Appellant was invited to express his own objections to the proceedings against him and did so.
Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of Weintraut's lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which Weintraut would prevail, but only issues upon which he might possibly prevail.
We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Even the most cynical observer of the legal system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple matter is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual - at least not in any way that benefits appellant. It could be said that retrials are unusual, but in this case, the result of the retrial was better for the defendant and does not help him. The second jury could not agree about the felony charges against Weintraut, and the court felt justice would not be served by a third trial so it dismissed those charges. That leaves nothing for us to review but the misdemeanor assault conviction. The evidence of that offense has convinced two juries, and we are unable to find anything about that evidence or the way in which it was presented that would redound to Weintraut's benefit.
Appellate counsel did not mount an attack on the sufficiency of the evidence, and we can certainly see why. The evidence was not only considerably greater than the legal standard requires, it was very convincing.
We have looked at the evidence appellate counsel considered and we agree with him that those avenues were not going to be productive. Police took a statement from Weintraut over the phone in which he said he took only a pen to his confrontation with Reyes - a position he later abandoned. Appellate counsel researched - as have we - whether this could have been a statement that should have been Mirandized, but the simple fact is Weintraut was not in custody at the time - actual or constructive. Miranda was therefore inapplicable; the trial judge correctly relied upon People v. Mayfield (1997) 14 Cal.4th 668.
Miranda v. Arizona (1966) 384 U.S. 436. --------
Other than that there were no controversial searches or questionable means used in obtaining statements. There was no scientific evidence to raise any issues, the instructions appear appropriate, and we cannot find any other areas in which the trial failed to comport with California law.
Weintraut filed two briefs in response to our invitation to do so. They reflect an admirable understanding of the English language: they are brief. Handwritten - and therefore in characters considerably larger than type - they combine for only three pages, and the second repeats much of what is in the first. In them, he complains that the very different outcome of the second trial "should bring into doubt if I have ever received a fair trial." We disagree.
Weintraut mistakenly asserts that he was acquitted in his second trial. This is incorrect. He has never been acquitted of any charges in this case. He was convicted of the misdemeanor twice. The felony charges were tried twice and 18 of the 24 jurors who heard them voted for conviction. Despite that, the charges were dismissed by the court. It is hard to see that as indicative of unfairness.
Nor was there - as he mistakenly asserts - a "threat" by the court to take him into custody at the outset of the trial. After the defendant repeatedly interrupted the proceedings at trial - something he had done at his first trial - the court warned him that he would not be allowed to do that, and if he continued, he would be removed from the court and forced to watch and listen to the proceedings from a holding cell. The court told defendant he had never previously had to do that because once that alternative was explained, the problem never came up again. He asked for, and received, defendant's word that he would not interrupt the proceedings by talking over court and counsel. That is not a threat.
Weintraut avers that he "would have been better off defending myself. Let alone have a real defense attorney." He tried during his trial to have his attorney relieved. He did not ask to represent himself, but asked for replacement counsel, complaining that the deputy public defender had not called some of the witnesses Weintraut felt would have helped his cause - specifically witnesses who would have testified that Reyes took an oath to repay the loan "on a knife," which made it reasonable that Weintraut would have taken a knife to collect the debt even without any intention to resort to violence.
Unfortunately, Weintraut said he knew these witnesses "by looks" rather than by names. He said he also provided names but defense counsel said he received no such list. Acting on the available information, defense counsel's investigator was unable to locate any witnesses who had seen the oath taken, but a photograph of Reyes holding a knife and a piece of paper that supposedly memorialized the oath on the knife was introduced into evidence. Those things considered, we can see nothing that would have likely affected the outcome of Weintraut's misdemeanor assault conviction.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686.) "A claim of denial of effective assistance of counsel has two components. 'First, [appellant] must show that counsel's performance was deficient; specifically, he must establish that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Second, he must establish prejudice. He must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome [citations]. Defendant has the burden of proving an ineffective assistance claim by a preponderance of the evidence [citation].' [Citation.]" (People v. Sanders (1990) 220 Cal.App.3d 1227, 1243 (Sanders).)
"To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him. [Citation.]" (People v. Hill (1969) 70 Cal.2d 678, 690-691.) "Although '. . . the choice of which, and how many, of potential witnesses [to call at trial] is precisely the type of choice which should not be subject to review by an appellate court,' [citation] trial counsel must accept the burden of investigating the facts surrounding criminal charges sufficient to make an informed decision. While '. . . we cannot presume prejudice from the mere fact of counsel's alleged inaction,' [citation] reversal is compelled where appellant can demonstrate he was denied an adjudication on potentially meritorious issues due to counsel's inadequate preparation. [Citation.]" (People v. Bess (1984) 153 Cal.App.3d 1053, 1060.)
Weintraut's complaint of his defense counsel's failure to call witnesses does not satisfy the two-prong test for ineffective assistance of counsel. First, there is no indication that counsel's performance "'fell below an objective standard of reasonableness under prevailing professional norms.'" (Sanders, supra, 220 Cal.App.3d at p. 1243, quoting People v. Plager (1987) 196 Cal.App.3d 1537, 1542-1543.) Counsel examined the prior trial attorney's file, he managed to get into evidence the photograph that defendant wanted to use the missing witnesses to authenticate, and was unable to locate the one witness he did have a name for. These actions indicate the attorney took steps that seem entirely within the bounds of "'prevailing professional norms.'" (Ibid.)
Even if failure to call these witnesses had fallen below the prevailing professional standards, that failure would not constitute inadequate assistance of counsel because Weintraut cannot show prejudice. While the issue of whether the defendant took the oath on the knife was contested, the determination of that fact has little to do with the assault conviction. (See § 240.) Even if the witnesses had come to court and affirmed that Reyes took the oath of the knife, it would not change the fact Weintraut confronted him with a knife. While they might have been relevant on the issue of whether a threat had been made, the witnesses counsel could not locate were not "material" or "necessary" to the defendant's assault conviction. Defense counsel's failure to call them therefore does not raise "'a probability sufficient to undermine confidence in the outcome [citations].'" (Sanders, supra, 220 Cal.App.3d at p. 1243.)
In short, we have searched this record for issues and we have found none that we think has any chance of success. We believe counsel's decision to file a Wende brief was well-advised. The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.