P. v. Azzara CA2/4

Filed 5/30/13 P. v. Azzara CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B240981
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA075752)
v.
RICHARD MATTHEW AZZARA,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los Angeles County,
Elden S. Fox and Richard A. Stone, Judges. Affirmed.
Peter Knecht for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., and Nima Razfar, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Defendant Richard Matthew Azzara appeals the judgment of conviction on
charges of identity theft, forgery, unlawful access card activity, and drug
possession. Azzara contends that (1) insufficient evidence supported his
conviction for identity theft; (2) the trial court violated his constitutional rights by
denying his request for a continuance on the first day of trial so that he could retain
private counsel; and (3) the trial court erred in failing to hold a Marsden hearing.
We find no error and affirm the judgment.
BACKGROUND
I. Charges
Azzara was charged with two counts of identity theft, as to victims Rebecca
Buckalew and Connie Gonsalves (Pen. Code, § 530.5, subd. (a)),1 one count of
forgery (§ 484f, subd. (a)), one count of unlawful access card activity (§ 484i,
subd. (c)), and one count of possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)). It was also alleged that Azzara had a prior strike conviction
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served a prior prison term
(§ 667.5, subd. (b)).
II. Evidence at Trial
On August 13, 2010, Deputy Hector Mancinas of the Los Angeles County
Sheriff’s Department stopped a black 2007 Mercedes CLS with no license plate,
driven by Azzara. Deputy Mancinas searched the vehicle and found a wallet in the
back seat that contained a driver’s license with Azzara’s photograph but bearing
the name of “Robert Maguire.” Deputy Mancinas ran a check of that license and
discovered the information did not match. The wallet also contained two credit
1
All subsequent undesignated references to code sections are to the California
Penal Code.
2
cards with the name “Robert Maguire” as well as nine fraudulent gift cards. A
search of Azzara’s person yielded $2,057 in cash.
After he was arrested and read his Miranda warnings, Azzara told Deputy
Mancinas that a friend had showed him how to make credit cards using an
embosser, a machine that imprints information onto magnetic strips on credit cards.
Azzara admitted he had an embosser, credit cards, and identity profiles of people in
his home and that he had made credit cards.
Later that day, Deputy Mancinas, along with other deputies and Detective
Phillip Briones, tried to access Azzara’s residence using keys he had given them.
They could not open the door; Detective Briones believed the door was locked
from the inside. The deputies thought they heard a toilet flushing inside, and
several lights were on in the house. They left after 30 minutes.
They returned several days later with a search warrant; the residence was not
under surveillance in the interim. No one was home and they forced entry. They
searched the residence and found bills and other paperwork bearing Azzara’s
name. They also found an embosser machine, numerous blank gift cards and credit
or debit cards, shredded plastic gift and credit cards, carbon stripping consistent
with magnetic strips, computer towers, two external hard drives, numerous laptop
computers, small photographs of Azzara that were the size of a driver’s license or
passport photo, and a Fargo printer, which is used to print logos or pictures on
credit and debit cards. One of the hard drives contained two documents, each of
which contained 40-50 credit card profiles, including names, an account number,
and in some instances an expiration date. Included was account information for
Rebecca Buckalew and Connie Gonsalves, both of whom recently had fraudulent
activity on their accounts. A small amount of what appeared to be
methamphetamine was found.
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After the search, Detective Briones questioned Azzara, who was in custody.
Azzara admitted that the embosser and the computer towers found in the residence
belonged to him. He admitted that he used the embosser to create fraudulent gift
cards.
However, Azzara stated that he had no knowledge of the blank credit and
debit cards found in his residence and did not know that they were in his house. At
one point in the interview he stated that the external hard drives belonged to him,
but later said they were not his. He denied that any of the other items belonged to
him. He stated that the Fargo printer belonged to two other men, an Asian named
Gin and an Armenian named Mike, who used it to create fraudulent gift cards.
Azzara stated that he was in contact with the two men on a weekly basis and was
present each week when they used his residence and his computers to make 40-50
fraudulent gift cards at a time. They would pay him four or five fraudulent gift
cards in return.
III. Verdict and Sentencing
The jury found Azzara guilty on all five counts, and the court found true the
prior conviction allegations in a bifurcated trial. The court selected the upper term
of three years for the first count of identity theft, doubled pursuant to the Three
Strikes law. The court struck the prior conviction for purposes of sentencing on
the remaining counts and dismissed the prior prison term enhancement pursuant to
section 1385. The court imposed a consecutive eight-month term on the drug
possession count and concurrent terms on the remaining counts. This timely
appeal followed.
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DISCUSSION
I. Sufficiency of the Evidence to Support Identity Theft Conviction
Azzara challenges the sufficiency of the evidence for his conviction under
section 530.5, which provides in pertinent part that “[e]very person who willfully
obtains personal identifying information . . . of another person, and uses that
information for any unlawful purpose, including to obtain, or attempt to obtain,
credit, goods, services, real property, or medical information without the consent of
that person, is guilty of a public offense.” (§ 530.5, subd. (a).) “In order to violate
section 530.5, subdivision (a), a defendant must both (1) obtain personal
identifying information, and (2) use that information for an unlawful purpose.”
(People v. Mitchell (2008) 164 Cal.App.4th 442, 455.) Azzara contends that
insufficient evidence supported his convictions for identify theft because no
evidence established that he obtained the debit or credit card information of
victims Gonsalves and Buckalew or that he used it for unauthorized transactions.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task
is to review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999)
20 Cal.4th 1, 11.) Reversal of a conviction for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin
(1998) 18 Cal.4th 297, 331.) Where substantial evidence supports a conviction, we
must affirm, even though the evidence would also reasonably support a contrary
finding. (People v. Towler (1982) 31 Cal.3d 105, 118.)
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“Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact. [Citation.] Moreover, unless the testimony is
physically impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th
1149, 1181.)
Azzara contends that no evidence was presented that he obtained or used the
debit or credit card information found on the hard drive in his home. He notes that
he denied knowledge of the presence of the blank credit cards in his home and
denied knowledge of the contents of the hard drives in his interview with Detective
Briones. He further emphasizes the lack of direct evidence tying him to the
fraudulent activity on Gonsalves’ and Buckalew’s account. We conclude,
however, that sufficient evidence supported the jury’s findings that he obtained and
used the personal identifying information of these two victims.
First, Azzara initially told Detective Briones that the hard drives (which
contained Gonsalves’ and Buckalew’s information) belonged to him, before
changing his story to deny that they were his. The jury reasonably could have
believed his original statement to be the true version. Moreover, the jury was
entitled to rely on Azzara’s admissions to Deputy Mancinas at the time of his arrest
that he had an embosser, credit cards, and people’s identity profiles in his home,
and that he used the embosser to make credit cards. Based on this evidence, the
jury reasonably could find beyond a reasonable doubt that Azzara obtained the
personal identifying data on the hard drive found in his home and that he was
responsible for the unlawful use of Gonsalves’ and Buckalew’s information. As
such, sufficient evidence supported his conviction for identity theft.
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II. Azzara’s Request for Continuance in Order to Retain Counsel
Azzara contends that the trial court violated his constitutional right to the
effective assistance of counsel when it denied his request for a continuance on the
first day of trial so that he could retain private counsel.
A. Background
Azzara was originally charged on November 29, 2010. At the preliminary
hearing held on June 3, 2011, appointed counsel Leonard Garber represented him.
On October 21, 2011, after several continuances, the court ordered no
further pretrial continuances. At the November 30, 2011 pretrial conference, the
court set the trial for January 10, 2012. The trial was postponed several times. On
February 21, 2012, the case was called for jury trial, and the trial court granted
Azzara’s request to proceed in pro. per. and relieved Garber as appointed counsel.
Azzara completed an Advisement and Waiver of Right to Counsel form in which
he initialed section 3.G, which read: “I understand that no continuance will be
allowed without a showing of good cause, and that such requests made just before
trial will most likely be denied.” He also initialed next to Section 3.H, which
stated: “I understand that depending on the stage of my case, if I ask to give up my
pro. per. status and request counsel to handle my case, the Court may deny this
request and I may have to proceed with trial without an attorney.” The court
ordered a panel of 40 jurors for February 23, 2012.
On February 23, 2012, after the court had ordered the jury panel brought to
the courtroom for voir dire, Azzara stated: “I want to make one motion. I don’t
know if it’s a motion really, but I just wanted to – I met with an attorney yesterday,
and if it please the court, if it’s possible, I could get the money together. It might
take maybe up to 30 days because I know it’s a lot. No pun intended. But if it’s
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possible to do that, I will be able to, you know, retain counsel and do it the right
way and not be a fool.” The court denied the request for a continuance.
The court proceeded to explain various procedural points to Azzara and
asked that the jurors be brought in, after which the following colloquy took place:
“MR. AZZARA: Your Honor, is it – I need to retain counsel, and I can
explain the reason why that I let the other – that a state appointed or what have
you, why I let him go. There were a couple problems there. He was a great man,
great attorney, very brilliant. But there were some evidentiary issues that he
wouldn’t bring in to evidence, and he kept telling me maybe somehow I could
bring them in.
“THE COURT: Mr. Azzara, I have 36 jurors now –
“MR. AZZARA: I understand,
“THE COURT: -- that have been used and called. I explained to you on the
other occasion that if you intended to relieve your attorney in this matter that you
would have to either be prepared to proceed without counsel and/or have counsel
present to start the trial. This case –
“MR. AZZARA: Okay. I thought it was the opposite.
“THE COURT: -- as we’re clear, goes back well over a year –
“MR. AZZARA: Yeah.
“THE COURT: -- in terms of its process in this court. I do not intend to
excuse the jurors for purposes of these proceedings. You have requested to
represent yourself. You made that request at the airport [courthouse], and coming
in on what I would call the eleventh hour and advising me that you would like me
to burn 36 jurors in regard to this matter because now you’ve decided that you
need an attorney is not the case. Apparently Mr. Garber, [I’m] notified, is
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available. He indicated he would be ready to proceed. If you want Mr. Garber to
be called and come here to handle this matter as your attorney, I’ll notify his office.
“MR. AZZARA: And then I can maybe get one after or – a private attorney
after that? Would that be okay?
“THE COURT: We’re starting trial, sir. If you want me to call Mr.
Garber’s office and have him here . . .
“MR. AZZARA: I’m sorry. I didn’t mean to – I didn’t know it was starting
today. I thought we would have a few days to prepare and get things, like, taken
care of.
“THE COURT: Call the jurors in.
“MR. AZZARA: No, Your Honor. Your Honor, yes, please. Yeah.
Please.
“THE COURT: Please what?
“MR. AZZARA: I don’t know what to do. I want to hire Mr. Peter Knecht,
but I have to have until Monday to pay him. That’s all you have to do. Please.
“THE COURT: Do you want me to contact Mr. Garber’s office?
“MR. AZZARA: I’d like to hire Peter Knecht is what I’d like to do.
“THE COURT: Mr. Knecht is not here right now.
“MR. AZZARA: I understand.
“THE COURT: Neither is Mr. Garber, but Mr. Garber’s prepared to
proceed he indicated. Do you want Mr. Garber to be contacted and become your
attorney?
“MR. AZZARA: I suppose so, Your Honor.
“THE COURT: What does that mean, sir?
“MR. AZZARA: I just means – I’d like – I don’t want to waste anybody’s
time. That’s all.
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“THE COURT: Well, you’re wasting my time now, sir.
“MR. AZZARA: Well, no. I just wanted to hire Mr. Peter Knecht, but it
would have to be like until next week and then it would be no problem. Monday,
Tuesday. No problem.
“THE COURT: It’s not going to be next week, sir.
“MR. AZZARA: I don’t –
“THE COURT: Do you want Mr. Garber to come here and be your lawyer?
“MR. AZZARA: Yes, I do. I guess so, Your Honor. Yes, please.
“THE COURT: Would you call Mr. Garber’s office and find out if he’s
available, please. . . .
“THE COURT: Mr. Azzara, so there’s no confusion, you want Mr. Garber
to be your lawyer with the understanding that you’re either going to proceed
without counsel and/or proceed with Mr. Garber.
“MR. AZZARA: Yeah. I guess, Your Honor. . . .
“THE COURT: . . . Based on the conversations with the defendant as a
self-represented litigant, he is making a request, although not timely, not entirely
unreasonable based on the circumstances. I’ve contacted counsel, Mr. Garber, who
has prepared this case over the last year and a half. He will be available tomorrow
morning at 10:30. I intend to bring the jurors in. I intend to swear in the panel. I
intend to advise the jurors that Mr. Azzara’s counsel had an emergency. I will then
order them back tomorrow morning at 10:30 to proceed with jury selection in this
matter. Ms. Avedissian, does that cause any problems for you right now?
“[PROSECUTOR]: Not at this time; however, we’re hoping to select the
jury tomorrow so I could have a witness who’s coming from out of town.
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“THE COURT: I will make every effort to accomplish that, and we will
discuss that with counsel when he’s here tomorrow. I don’t want to lose the jurors,
and this case is going to proceed.”
That afternoon, Mr. Garber appeared on behalf of Azzara during voir dire.
The court stated, “I want to thank you for your efforts to be here this afternoon.
Mr. Azzara has made a request of the court to withdraw his request as a self-
represented litigant, and although you might not be his first choice, Mr. Garber, he
is insistent that he wants counsel to represent him in this matter. You’ve advised
the court that after these number of months, actually year and a half, that you
would be prepared to proceed.” Garber resumed his representation of Azzara.
B. The Trial Court Did Not Abuse Its Discretion in Denying Continuance
The trial court’s decision to deny a defendant’s request for a continuance to
seek private counsel is reviewed for abuse of discretion. (People v. Pigage (2003)
112 Cal.App.4th 1359, 1367; see People v. Mungia (2008) 44 Cal.4th 1101, 1118.)
However, limitations on the right to continuances so that a defendant may hire
private counsel of his own choosing are carefully circumscribed. (People v. Courts
(1985) 37 Cal.3d 784, 790 (Courts).) Although “[a] continuance may be denied if
the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily
chooses to substitute counsel at the time of trial,’” “trial courts should
accommodate such requests – when they are linked to an assertion of the right to
retained counsel – ‘to the fullest extent consistent with effective judicial
administration.’ [Citation.]” (Id. at pp. 790-791.) “In deciding whether the denial
of a continuance was so arbitrary as to violate due process, the reviewing court
looks to the circumstances of each case, ‘“particularly in the reasons presented to
the trial judge at the time the request [was] denied.”’ [Citation.]” (Id. at p. 791.)
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In Courts, the court held that the trial court abused its discretion in denying
the defendant’s request for a continuance so he could bring on retained counsel for
trial. (Courts, supra, 37 Cal.3d at pp. 795-796.) The record showed that the
defendant “engaged in a good faith, diligent effort to obtain the substitution of
counsel before the scheduled trial date,” including contacting his desired counsel
two months before the trial date, raising the funds soon afterwards and establishing
a lawyer-client relationship, and informing the court of his efforts well in advance
of trial and making a motion for a continuance more than a week before trial. (Id.
at p. 791.) The court noted that “[t]hese facts are to be sharply contrasted with
cases which have upheld the denial of a continuance on the ground that
participation by a particular private attorney was still quite speculative at the time
the motion for continuance was made,” or cases where the continuance request was
premised on the defendant’s representation that he would eventually be able to hire
private counsel. (Id. at p. 791, fn. 3.) Further, the court contrasted the facts before
it with “day-of-trial” requests, in which courts are justified in finding “the lateness
of the continuance request to be a significant factor which justified a denial where
there were no compelling circumstances to the contrary.” (Id. at p. 792, fn. 4.)
The court also noted that “there were no circumstances which warranted the
limitation of appellant’s right to counsel based on considerations of judicial
efficiency. [Citations.] [¶] The record fails to show that a continuance would
have significantly inconvenienced the court or the parties. [Citation.] . . . No
mention of inconvenience to jurors . . . was ever made.” (Courts, supra, 37 Cal.3d
at p. 794.)
Azzara’s request on the first day of trial for a 30-day continuance, and then
later his request to continue the case into the next week, was a far cry from the
request to continue to hire private counsel by the defendant in Courts. Courts
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emphasized that a “day-of-trial” request for a continuance like Azzara’s constitutes
a significant factor justifying denial of the continuance absent a compelling
justification (Courts, supra, 37 Cal.3d at p. 792, fn. 4), yet Azzara offered no
explanation for the lateness of his request. Moreover, as of the first day of trial, he
admitted he had not yet gathered the funds for the retainer, and thus “participation
by a particular private attorney was still quite speculative.” (Id. at p. 791, fn. 3.)
Finally, unlike in Courts, where there was no showing of prejudice to jurors or
others, the trial court in the instant case made quite clear that the 36 prospective
jurors who were already on their way to the courtroom for voir dire would be
inconvenienced by the late request for a continuance. Further, the record reveals
that one of the prosecution’s witness was traveling from out of town to testify and
would have been inconvenienced by a delay of the trial. The trial court therefore
had ample justification based on the circumstances in Azzara’s case to deny his
last-minute request for a continuance.
III. Marsden Hearing
Azzara contends that the trial court erred in failing to hold a Marsden
hearing on the third day of trial, after he expressed dissatisfaction with his
appointed counsel.
A. Background
On the final day of trial, Azzara indicated to the court that he had a
disagreement with Garber over a witness whom he wanted to call in his defense.
He stated that he gave the address of the witness to Garber several days before, but
he had not been able to provide a phone number because his bail had been revoked
and his cell phone, which contained the phone number, was taken away from him.
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Garber indicated that he had not been able to go to the address Azzara
provided for the witness because he only received it once trial had begun and in
any event he disagreed with Azzara about the “efficacy of his testimony.” Azzara
indicated that he had brought the witness, Craig Neilson, with him to court over a
year earlier, and that the witness’s testimony was important to his defense. He
indicated that he had planned to pick up Neilson and bring him to the trial, but
when his bail was revoked he could no longer do so.
The court indicated that it would call the witness if he were present, but
since the witness was not available and Azzara was not introducing any other
evidence, the court had no choice but to proceed to instruct the jury. Over
Azzara’s objection that he was “getting railroaded,” the court then instructed the
jury.
B. No Marsden Hearing Was Required
“The governing legal principles [derived from Marsden, supra] are well
settled. ‘Under the Sixth Amendment right to assistance of counsel, “‘“[a]
defendant is entitled to [substitute another appointed attorney] if the record clearly
shows that the first appointed attorney is not providing adequate representation
[citation] or that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result.”’”
[Citation.] Furthermore, “‘“[w]hen a defendant seeks to discharge appointed
counsel and substitute another attorney, and asserts inadequate representation, the
trial court must permit the defendant to explain the basis of his contention and to
relate specific instances of the attorney’s inadequate performance.”’”’
[Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 95; see People v. Smith
(2003) 30 Cal.4th 581, 604; People v. Hart (1999) 20 Cal.4th 546, 603.)
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“[A] trial court’s duty to permit a defendant to state his reasons for
dissatisfaction with his attorney arises when the defendant in some manner moves
to discharge his current counsel. The mere fact that there appears to be a
difference of opinion between a defendant and his attorney over trial tactics does
not place a court under a duty to hold a Marsden hearing.” (People v. Lucky
(1988) 45 Cal.3d 259, 281, fn. omitted (Lucky).) In People v. Sanchez (2011) 53
Cal.4th 80, the Supreme Court reiterated that a Marsden hearing is required only
when “there is ‘at least some clear indication by defendant,’ either personally or
through his current counsel, that defendant ‘wants a substitute attorney.’” (Id. at p.
90; see Lucky, supra, 45 Cal.3d at p. 281, fn. 8 [“We do not necessarily require a
proper and formal legal motion, but at least some clear indication by defendant that
he wants a substitute attorney.”].)
In this case, during the colloquy with the court during trial, although Azzara
complained that Garber had not tracked down a witness, he never gave any
indication that he wanted to substitute counsel. He complained that he was
“getting railroaded” by the court, which would not delay the completion of trial to
allow time for the witness to be located, but at no point did Azzara suggest that he
wanted to discharge Garber and get a new attorney appointed to defend him.
Because he gave no clear indication that he wanted a substitute attorney, the trial
court did not err in failing to hold a Marsden hearing.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
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