PEOPLE v. GARCIA

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Philip GARCIA et al., Defendants and Appellants. IN RE: Philip GARCIA and Gary Garcia, on Habeas Corpus.

Cr. 42540, 44937.

Decided: September 26, 1983

Fischer & Hill, Dennis A. Fischer and Melissa Hill, Santa Monica, for defendants and appellants. John K. Van De Kamp, Atty. Gen., Norman H. Sokolow and Gregory W. Alarcon, Deputy Attys. Gen., for plaintiff and respondent.

Defendants Philip Garcia (Philip) and Gary Garcia (Gary) appeal from judgments of conviction by jury of grand theft (Pen.Code, § 487, subd. 1) for embezzlement of leased property.   Gary was placed on probation under certain terms and conditions.   Philip was sentenced to prison for the middle term of two years.

We affirm.

FACTS

In 1980, Robert J. Maag (Maag) offered his printing shop, Inglewood Blueprint, for sale, asking $200,000.   Philip, who had been operating a graphics business in West Los Angeles, obtained possession as a prospective buyer.   The purchase fell through, but on February 17, 1981, a written lease with an option to buy was signed.   It specifically provided that no equipment was to be sold or removed.   Equipment in the shop was inventoried at $45,000, including one Solna printing press.

In February 1981, Maag noticed, in looking through a front window, that a main piece of equipment, his Solna press, was missing.   He phoned Philip, who said nothing was missing, things were just being rearranged.   In March, Maag entered the printing shop and saw that the Solna press was indeed missing as was additional property, including a smaller, Hamada press.

In response to a call from Philip, Donald Blustein, a buyer of used presses, visited Inglewood Blueprint on February 5, 1981.   Gary offered to sell him the Solna press and other equipment.   After negotiating with Gary, Blustein bought the Solna press for $6,000.   Gary had it delivered on February 19, 1981, and picked up the check, which Philip endorsed.

Viewed in the light most favorable to the People (People v. Vann (1974) 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824), the evidence established that defendants had money problems;  the only Solna press ever in the leased premises was Maag's;  Gary and Philip appropriated it by embezzlement.

DISCUSSION

Appellants urge three principal grounds on appeal:  Improper admission of evidence of uncharged thefts;  denial of effective assistance of counsel;  and misconduct of the district attorney in closing argument.

Defendant Gary alone contends there was insufficient evidence to support his conviction.

THEFT OF EQUIPMENT OTHER THAN THE SOLNA PRESS

 The information alleges the taking, on or about February 19, 1981, of property of a value of $14,791.40.   The property is not described.   However, the value alleged corresponds exactly with the purchase price of the Solna press.   Appellants argue that the pleadings impliedly charge only the theft of the Solna press, and evidence of the theft of additional property is improper.   This contention is unsound.

The pleading, police reports, and preliminary hearing gave adequate notice of the prosecution's theory.   Appellant's thefts of additional leased equipment entrusted to them by Maag was circumstantial evidence admissible to show a continuing course of conduct and specific intent to permanently deprive him of his property.

 Appellants further contend it was error for the trial court to instruct on the degrees of theft and that there was no evidence of the value of any particular item other than the Solna press.   Defense counsel requested and approved these instructions.   We have reviewed the entire record on appeal.   The trial court properly instructed the jury.

DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

 Appellants' argument that trial counsel failed to make timely objection to the admission of evidence that property other than the Solna press was taken, carries no weight.1  The objection was improper and subject to denial, whenever raised.

 Appellants' assertion that trial counsel should have blocked testimony of a deliveryman regarding the words “one Solna press” on the delivery ticket he left at Inglewood Blueprint upon transporting an AM press there in October 1980, is without merit.2

 Appellants further complain of trial counsel's “failure to take any steps to keep appellants' change of name from the jury.”   They suggest he should have requested that the court and the prosecutor employ the name King in referring to appellants in the jury's presence and in the verdict forms.   Such a procedure would have been impracticable, bordering on the mendacious.

Appellants have failed to carry their burden under People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144 and People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.

SUFFICIENCY OF EVIDENCE AGAINST DEFENDANT GARY

 Gary actively participated in the sale and delivery of the victim's Solna press.   He was not a signatory to the lease but was a close associate with his brother Philip in the operation of the business.   He lived in quarters over the printing shop.   He made admissions against his penal interests to witness Pavlick, indicating consciousness of guilt.   Review of the entire record shows substantial evidence supporting the jury's verdict that Gary was a principal in the embezzlement.

PROSECUTOR'S CLOSING ARGUMENT

There was inescapable evidence before the jury that the defendants used the surname King throughout the transactions in question, before the magistrate, and in front of the superior court judge hearing pretrial motions.   They stated their true names to be Garcia when questioned by the trial judge.

The confusion thus created is due entirely to the acts of the defendants.   Witnesses necessarily used the surnames interchangeably, as did defense counsel at trial and on appeal.

During the closing argument of the district attorney, the following occurred:

[MR. DAVIS]:  “One of the things about not having this inventory suggests to me that that points up that Mr. Maag trusted this defendant, Phil King, Garcia, whatever.   Why does he use different names?   Is he trying to hide something?

“DEFENDANT PHILIP GARCIA:  No.

“MR. DAVIS:  Does that suggest that he is trying to conceal his identity?   You don't know who he is, do you?   It has been represented here in court that now his true name is Garcia, but they keep being referred to as the Kings.   Why are they trying to conceal their identity?”

This is not a closely balanced case presenting grave doubt as to defendant's guilt, nor is there any showing that a timely admonition would not have been curative of any error.   Therefore, the contention is rejected.  (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)

 Furthermore, it is clear from the whole record that the prosecutor's remarks did not amount to prejudicial misconduct.   He drew an inference from matter before the jury.   There was no miscarriage of justice within the meaning of Constitution, article VI, section 13.  (See People v. Utter (1972) 24 Cal.App.3d 535, 554, 101 Cal.Rptr. 214.)

The additional arguments of appellants are without merit.

HABEAS CORPUS

During the pendency of the appeal, defendants filed petitions for habeas corpus.   We consolidate the petitions with the appeal.

Two grounds are argued:  Ineffective counsel;  and no counsel.

 The first contention is that trial counsel should have proved that petitioners' use of different names was innocuous.   Petitioners fail to show any reasonable probability that a determination more favorable to them would have resulted and that counsel had no rational tactical purpose for his act or omission.  (People v. Fosselman, supra, 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144.)

The second ground is that trial counsel was suspended from the practice of law;  that therefore petitioners were without counsel, had not waived counsel, and thus were denied their constitutional rights to the assistance of counsel.   Appellants had no knowledge that their attorney was delinquent in his dues or that he was under suspension.

Petitioners do not make a particularly clear showing that counsel was disallowed, by order of the State Bar, from completing this trial.   As we understand it, the exhibit filed in support of the petition is a certified copy of an address card and attachment from the file of the Membership Records Department of the State Bar of California with typed notations which are neither signed nor initialed.   The phrases are somewhat cryptic.   There is no clear recital of the time periods of the several suspensions for delinquent dues;  of probationary conditions, if any;  of stays of execution, if any;  and not all entries are chronological.   There is no unequivocal statement as to trial counsel's status during trial, March 11–18, 1982, and related dates.   No affidavit or official record to show notification to counsel of suspension or of terms of suspension during this trial, has been called to our attention.

Assuming, arguendo, that counsel was, during the time in issue, knowingly suspended for nonpayment of bar dues, petitioners are not entitled, under the circumstances of this case, to the extraordinary relief sought.

Petitioners cite no California authority to justify an automatic reversal of a conviction solely because counsel was on suspension for nonpayment of bar dues.   We are aware of none.

 Petitioners show no nexus between the State Bar's action toward counsel and the quality of counsel's trial representation.   Petitioners have no standing, under the circumstances here presented, to take collateral advantage of that situation.   Since they received adequate representation, petitioners are estopped from urging that their felony convictions be reversed because of ancillary proceedings between their attorney and the State Bar.

This is not an instance of a person masquerading as an attorney.   Counsel was admitted to the California Bar.

It appears to us the issue must be decided on a case-by-case basis with careful consideration of the rights and interests of the defendant and of the public.   Public policy would not be well served by a policy of automatic reversal.

In re Ward (1946) 28 Cal.2d 583, 170 P.2d 665, authored by Chief Justice Gibson, discusses the situation in which a convicted defendant seeks his discharge on habeas corpus upon the basis he has discovered his retained counsel was not a member of the bar, because counsel's stated name, when checked after the conviction, was not the name of an attorney admitted to practice.   In denying relief, the California Supreme Court held that petitioner was represented by a person of his own choosing and must, therefore, abide the results of his selection of a representative.3

Johnson v. State (1979) 225 Kan. 458, 590 P.2d 1082 holds that a defendant is not denied his constitutional right of effective assistance of counsel as a matter of law solely because his appointed counsel was in suspended status for nonpayment of attorney registration fee, but the adequacy and effectiveness of the attorney's service must be gauged by the totality of representation.   In letting a conviction stand although the attorney was delinquent in dues, the court, in Hill v. Texas (Tex.Cr.App.1965) 393 S.W.2d 901, noted that the delinquency did not place counsel in the position of being unlicensed.   He only had to pay his dues to resume status as a practicing lawyer.  (Cf. Beto v. Barfield (5th Cir.1968) 391 F.2d 275.)

We believe there is an important distinction between (1) an unlicensed person, e.g., an imposter or a disbarred attorney, and (2) an attorney admitted to practice but under suspension for nonpayment of State Bar dues.

The judgments are affirmed and the petitions for writs of habeas corpus are denied.

FOOTNOTES

FOOTNOTE.  

1.   Trial counsel did object, first during opening statement of the district attorney, then during trial in an in limine motion to strike.

2.   He filled out the ticket, listing what he delivered.   He did not deliver a Solna press, and when he left the ticket with appellants, it did not then contain those words.   This is admissible to show falsification of evidence in an effort to create a second, fictional Solna press.

3.   People v. Frierson (1979) 25 Cal.3d 142, 162, 158 Cal.Rptr. 281, 599 P.2d 587 holds that Pope's standard for measuring the effectiveness of counsel applies to both appointed and retained counsel.

WOODMANSEE,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

FEINERMAN, P.J., and ASHBY, J., concur.