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The People v. Rene Joseph Rioux

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


December 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RENE JOSEPH RIOUX, DEFENDANT AND APPELLANT.

(Santa Clara County Super. Ct. No. CC760264)

The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.

P. v. Rioux

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Rene Joseph Rioux was convicted after court trial of two counts of assault with a deadly weapon (Pen. Code, § 254, subd. (a)(1)).*fn1 The court also found true allegations that defendant personally used a deadly and dangerous weapon in the commission of the offenses. (§§ 667, 1192.7.) The court dismissed a misdemeanor count of disturbing the peace (§ 415) and a misdemeanor count of public intoxication (§ 647, subd. (f)), and found defendant not guilty of child endangerment (§ 273a, subd. (a)). Defendant filed a motion for a new trial alleging that he received ineffective assistance of trial counsel and that his waiver of his right to a jury trial was not knowing or voluntary. After denying defendant's motion for a new trial, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.

On appeal, defendant contends that the court abused its discretion when it denied his motion for a new trial. As we find no abuse of discretion, we will affirm the judgment.

BACKGROUND

Defendant was charged by consolidated information with two counts of assault with a deadly weapon with personal use of a deadly weapon, an SUV (§§ 245, subd. (a)(1), 667, 1192.7; counts 1 & 2); and one count each of child endangerment (§ 273a, subd. (a); count 3), misdemeanor disturbing the peace (§ 415, count 4), and misdemeanor public intoxication (§ 647, subd. (f); count 5.) On December 8, 2008, defendant appeared with retained counsel Jamie Harley before Judge Griffin Bonini, who granted the prosecutor's motion for the consolidation. Defendant then appeared with Harley before Judge Philip Pennypacker. He was arraigned on the consolidated information, he pleaded not guilty to all charges, and he waived his right to a jury trial.*fn2 The matter was continued to the following day, when Harley appeared before Judge Pennypacker without defendant and the matter was set for court trial on December 22, 2008.

On December 22, 2008, defendant appeared with counsel Jacklyn Bentley. The parties and the court agreed to have the defense case continued to January 7, 2009. The court ordered three defense witnesses to return on that date and defendant confirmed that he had waived his right to jury trial. Three witnesses then testified for the prosecution.

The Prosecution's Case

San Jose Police Officer Maria Solomon testified that she responded to an apartment on Camden Avenue on January 21, 2007, due to a report by Stacey*fn3 that her estranged husband would not leave and threatened to kick in the door. As the officer was looking for the apartment, she saw defendant coming out of the bushes nearby. He had a strong odor of alcohol, an unsteady gait, slurred speech, and a dry mouth. The officer questioned defendant about his alcohol consumption and he became agitated, so she placed him in handcuffs. Defendant said that he had been waiting over an hour and a half to pick up his son and that he had been drinking in his truck and in the bushes. The officer found 24 empty bottles of beer in defendant's pickup truck. The officer arrested defendant for being drunk in public and for trespassing.

Stacey testified that she and defendant had been married for 15 years and they have two children together: James, age 10, and Emily, age 15. Stacey also has an older daughter, Kayla, who is not defendant's child. Defendant has been physically and verbally abusive towards Stacey since before their marriage. He hit her about 10 or 15 times, and choked her about three times. She sustained some bruises here and there, but nothing severe. One time defendant served time in jail for domestic violence, but otherwise Stacey did not report the abuse because she did not want to disrupt her family. Stacey and defendant separated in December 2006. Stacey took James and Emily with her and they lived with Stacey's girlfriend, but Kayla stayed with defendant. Stacey and defendant had a verbal agreement to share custody of James and Emily.

Around 8:00 p.m. on January 21, 2007, Stacey was at her girlfriend's apartment on Camden Avenue when defendant called Stacey's cell phone. He said that he was there and he demanded that she bring James outside. He said that if she did not do so, he would kick the door in. Stacey did not tell defendant which apartment she was in, but she did tell defendant that she would not bring James outside because defendant was not waiting in the parking lot as she had asked him to. Defendant paced up and down looking for the apartment. About one hour later, Kayla called Stacey from outside the apartment and said that defendant told her to get out of his truck when she would not tell him which apartment Stacey was in. Stacey said that she would call the police if defendant did not leave. Defendant did not leave so she called the police. When officers arrived, Stacey saw defendant come out of the bushes, the officers speak to him, and arrest him.

Around 5:00 p.m. on March 14, 2007, Stacey drove to defendant's house, which is in the middle of a cul-de-sac, in order to drop off James and pick up Kayla. As James was getting out of the car, defendant came up to it, commented that Stacey was not wearing her wedding ring, and kicked the passenger side of the car. Stacey grabbed James and sped away. She let James out at the intersection and then turned and parked her car. Kayla called her to tell her that defendant had left and to ask her to come back to pick up James and her. Stacey returned to defendant's house and double-parked facing traffic and the intersection so that she could leave quickly. Kayla got into the front passenger seat, but James was still outside the car when defendant's car hit Stacey's car head on. Kayla's airbag deployed. Stacey hit the steering wheel and sustained an abrasion on her chest and a bruise on her leg. Defendant backed up, parked, and got out. Stacey grabbed her cell phone to call 911 and ran and hid. Eventually the police came and she told them what happened. Her car had to be towed and was considered totaled. Defendant has never apologized to her about the incident or told her that it was an accident.

Kayla testified that she is 19 years old and that defendant is her stepfather. She never saw Stacey and defendant hit each other; they did not argue in front of their children. On January 21, 2007, defendant drove her to the apartment where her mother was staying but her mother would not open the door because defendant was there. Stacey did not want defendant to know where she was staying. Kayla waited outside for about one-half hour while defendant talked to Stacey on the phone about James. Kayla did not see defendant drinking beer and she did not see him in the bushes. She was inside the apartment when the police arrived so she did not see what happened to him.

On March 14, 2007, Stacey drove to defendant's house to pick up Kayla, but both Stacey and defendant were gone when Kayla went outside. Kayla called Stacey and told her that defendant was gone, so Stacey returned, crying. Kayla got into the passenger seat of Stacey's double-parked car. James was still on the sidewalk when defendant's car hit Stacey's car. Kayla's airbag deployed but she was not hurt. Kayla got out of the car. Defendant backed up and parked. Stacey got out of the car and walked away, crying. Defendant moved Stacey's car and Kayla went to look for Stacey. The police arrived before Kayla found her.

After the prosecution rested, defendant moved to dismiss the misdemeanor counts of disturbing the peace (§ 415, count 4) and public intoxication (§ 647, subd. (f); count 5) under section 1118, and the court granted the motion. The court then continued the matter to January 7, 2009. On January 7, 2009, six witnesses, including defendant, testified for the defense.

The Defense Case

Matthew Paquette testified that he has known defendant for eight or nine years and that he has socialized with defendant's family. He has never seen defendant be violent or become enraged.

Marguerite Michels testified that she has known defendant for about six years and that she has socialized with him and his children. She has never seen him get angry. During all of her business dealings with defendant, he was always very calm, very professional, and very reliable.

Tim Wilson testified that he worked with defendant before he retired, and that he has known defendant for about 10 years. He has never seen defendant become violent or angry. Stacey told him about the incident that occurred on March 14, 2007. She said that it was an accident.

Stephen Brown testified that he has known defendant for almost 20 years and Stacey for 25 or 30 years. He has seen Stacey yell at defendant, but defendant was always calm and quiet and let it "roll off." He has never seen defendant get angry. He has talked to Stacey about the March 2007 incident. Stacey said that she did not know if it was an accident or not. She said that she was upset with defendant because of their marital problems. She said that she hopes defendant goes to jail for a long time and that he never sees his children again.

Defendant testified in his own behalf that he never struck Stacey during their 14-year marriage, but they did argue. On March 14, 2007, Stacey came to defendant's house to get James. Defendant asked her why she was not wearing her wedding ring and he told her that he did not want her to have the children around her 19-year-old boyfriend. She swore at him so he swore back at her. He told her to leave and, as she was leaving with James, he kicked a tire out of frustration. He followed her to get James, but halfway to her home he stopped at a store to get an energy drink and decided while there to head back home. On his way back home he received a cell phone call from a co-worker, Cahna Jackson. He was still talking with Jackson when he turned into the cul-de-sac. He hit Stacey's car while going only five or 10 miles per hour because he was looking at James, who was walking down the walkway. He tried to slam on the brakes, but his shoes were untied and one of them fell underneath the brake pedal. He did not mean to hit Stacey's car; it was an accident. Stacey got out of her car and ran off, but Kayla seemed fine. Defendant told Jackson that he would have to call her back because he was just in an accident, and then he hung up the phone.

Cahna Jackson testified that she has known defendant for five or six years. She called defendant on March 14, 2007, about work. He did not sound angry to her. They had not been talking very long when he told her that he would have to call her back because he was just in an accident.

The Verdicts

On January 14, 2009, the court found defendant guilty of counts 1 and 2 (assault with a deadly weapon; § 245, subd. (a)(1)), and found the allegations that he personally used a deadly and dangerous weapon to be true as to both counts. (§§ 667, 1192.7.) The court found defendant not guilty of count 3 (child endangerment; § 273a, subd. (a)).

The Motion for New Trial

On May 1, 2009, with new counsel, defendant filed a motion for a new trial based on a claim of ineffective assistance of counsel. He contended that on December 8, 2008, counsel Harley "lied to [him] in such a manner as to induce him to waive his right to a jury trial," and that, "had [defendant] known that [counsel Harley] was not being honest with him and was quite likely affirmatively lying for the Court, he absolutely without a doubt, would not have waived his right to a jury trial." The People filed opposition to the motion on May 6, 2009, contending that defendant "cites no actual error by his trial attorney, Ms. Bentley. There was none and no ground for a new trial exists under Penal Code section 1181." On May 8, 2009, the trial court set the matter for an evidentiary hearing on July 23, 2009. The testimony at the hearing was as follows.

Jacklyn Bentley testified that she was admitted to the bar in December 2007, and she began working for Jamie Harley's office on June 15, 2008. She first met defendant on the day he waived his right to a jury trial, December 8, 2008, but she did not discuss his case with him that day. She was introduced to defendant and then she stood next to Harley while Harley spoke with defendant. Harley told defendant that her firm had just won an acquittal in a bench trial before Judge Pennypacker, who would be trying defendant's case, and she recommended that they waive a jury trial in defendant's case. "[S]he said 'I think this is what you should do. It's in your best interest.' " "[S]he said that Judge Pennypacker was a fair judge and that he would listen to everything and that she thought that it would be a good place to try the case." She explained to defendant the positives and negatives of a bench trial versus a jury trial, including the concept of jury unanimity, and defendant agreed that a bench trial was in his best interest. After he waived his right to a jury trial, defendant never expressed regrets about having done so.

Harley told Bentley sometime later that defendant's case was being assigned to her for trial. Before Bentley tried defendant's case, she had tried one other court trial, the one in which her firm had won the acquittal before Judge Pennypacker, and no jury trials. Bentley informed defendant on the morning his trial started that she would be trying his case. Defendant appeared surprised and he asked where Harley was because he thought she was trying the case. She told him that Harley was not going to be there and he did not object to her trying the case. During the trial, defendant did not express any complaints about the way she was handling the case. In her opinion, the case was going well until defendant testified. She succeeded in getting the misdemeanor charges dismissed and she called all the witnesses that she wanted to call. She had discussed with defendant the pros and cons and possible consequences of his testifying, and he expressed a clear desire to testify. After defendant filed his motion for a new trial, Harley told Bentley that defendant "was lucky that he had a trial at all based on how much he had paid." Bentley no longer works for Harley's firm.

Harley testified that defendant had initially hired Ben Koller to handle his case in April 2007, around the time that Koller came to work for Harley's firm. In September 2007, bar proceedings began against her. She did not meet defendant until November 2007, at which time defendant said that "it would be acceptable" for her to handle his trial. She did not disclose the fact of her bar proceedings to defendant. She did discuss defendant's case with him on a regular basis, including the possibility of waiving his right to a jury trial, and the pros and cons of doing so. By December 8, 2008, defendant had already agreed to try his case to the bench. She does not recall defendant having any particular concerns about waiving his right to a jury trial, and he did not express regrets about having done so. Trial sessions were held in her bar proceedings in October 2008 and on December 17, 2008. She was not aware that defendant wanted to meet with her on December 19, 2008; she was not in her office that day. She was indicted in federal court on December 31, 2008, and there was a story about it on the front page of the newspaper.

In their pretrial conferences, Judge Pennypacker never gave Harley the impression that the case against defendant was weak. She did not tell defendant that she thought that Judge Pennypacker thought his case was weak. She did tell defendant about the discussions she had with the court and the prosecutor, and she said that the court was very amenable to all forms of resolution whereas the prosecutor was not. They discussed defendant testifying, but she did not try to pressure him to testify.

Bentley was chosen to try defendant's case because she had recently successfully completed a court trial before Judge Pennypacker where the decision hinged on the credibility of the defendant. Harley and Bentley had been talking about Bentley trying the case since Bentley started with Harley's firm. Harley told defendant "[a] month before the trial maybe" that Bentley would be trying the case. After Harley learned that defendant wanted to file a motion for a new trial, she discussed with Bentley how the office had handled the case. During those discussions, Harley did not say that defendant was lucky to have had a trial at all. Defendant had paid for a trial.

Matthew Paquette testified that he has been defendant's friend for nine or 10 years, and that he was present for defendant's first day of trial. Bentley showed up at the last minute, introduced herself to defendant, and said that she would be representing him and that Harley was unavailable. Defendant was surprised.

Defendant testified that his sister hired Ben Koller. He first met Harley in November or December 2007, when he discussed his case with Koller and Harley at her office. She said that she would like to take over the case from Koller. After that meeting, defendant had the impression that Harley would be personally handling his case. Koller dismissed himself from the case at the next court hearing and Harley took over. Harley explained to him the differences between a court trial and a jury trial, but she did not discuss waiving a jury trial with him before she told Judge Bonini on December 8, 2008, that there would be a bench trial before Judge Pennypacker. In the hallway between Judge Bonini's courtroom and Judge Pennypacker's courtroom, defendant asked Harley "why are we having a bench trial? She said because the judge believes that the case is weak." Their discussion lasted "[a]bout two seconds." She did not discuss the legal concept of jury unanimity with him. He feels that she was making his decision for him because she never asked him what he thought. "And then we walked into the courtroom and then we waived the jury in front of the judge." Defendant did not ask Judge Pennypacker about his rights; he did not ask any questions and he did not express any concerns. He never saw Harley again. He had a meeting scheduled with her on December 19, 2008, to discuss his trial, but she was not at her office.

Defendant never heard of or from Bentley before she stepped out of the elevator on December 22, 2008, and introduced herself as his attorney. He asked her where Harley was and whether they should ask for a continuance. Bentley said, " 'no, I got it covered.' " She said that her office had previously won a court trial before Judge Pennypacker. He does not know why he did not object then or as the trial went on. It was his decision to testify and Bentley called the witnesses that he believed were appropriate, but she never raised any objections. "She seemed very unsure of the way to word questions. She had to be helped a few times by the judge himself on how to direct the questions. It felt very inadequate." He did not learn that Harley was involved in proceedings before the state bar or that she was indicted in federal court until February 2009. If Harley had disclosed to him that she was in bar proceedings or that she had been indicted in federal court while her office was representing him, he would not have continued having her represent him.

Judge Pennypacker stated that, if called to testify in this matter about a statement that he "apparently" made "that was passed on to [defendant]," he would state that he did have a number of in-chambers conferences with the prosecutor and Harley. Some of the discussions revolved around defendant's custody status, and there were numerous attempts to resolve the case. He was not "involved in making any kind of evaluations of cases that [he] may end up court trying, and there were a number of cases that were court tried. So as a consequence, [he does] not remember making such a statement." "To the best of my recollection, I may have said something along the lines of, 'well, then there are facts that need to be tried' or something similar to that. In other words, I recall her saying something along the lines of the fact that it was the defense's position it was an accident, and I believe [the prosecutor's] comments were that, 'well, I don't think the physical evidence will show that.' And that's kind of like where we left it." Judge Pennypacker also took judicial notice of the fact that Bentley tried a case before him that concluded immediately before defendant's case went forward and that resulted in an acquittal. The matter was then continued.

On October 2, 2010, after hearing argument from the parties on the motion for new trial, the court stated that it reread its notes, the transcript, and the motions, and "had an opportunity to go back through this independently." It then ruled as follows: "I really believe that there are two separate issues in this case. I believe that the first issue is whether the defendant knowingly, intelligently waived his right to a jury trial . . . ." "I'm finding that the defendant did proffer the Court a valid, knowing, and intelligent waiver. This Court made sure because I have such a high regard for the jury system that somebody doing that actually knows. And in looking at [the prosecutor's] cross-examination of [defendant], I'm finding that he did know and that he voluntarily gave that up.[*fn4 ] [¶] I also think it was not done with any means of deception. I think puffery, and I couldn't agree with [defense counsel] more. I think there were gross misrepresentations on the part of what Ms. [Harley] had to say in certain respects, but I think that the letters and the discussions that were held were adequate to guarantee this Court that he went into this process knowing what it was. And that the money issue as far as the Court's concerned was not an issue, and I believe Ms. [Harley] on that point.

"Secondly, I think the other issue that surrounds this is really an overall claim of Pope/Strickland error[*fn5 ] because what [defense counsel] is fashioning essentially as far as the Court is concerned is that the defendant was deprived of representation during the course and process of the trial." "First of all, this Court understands that the defense has raised and is raising the fact that Ms. Bentley had only one prior trial. She did that trial, in fact, in front of me. That was part of this record as it was discussed during testimony. [¶] She did get an acquittal on a court trial case. During the course of the trial that was involved in this case, I found her to be prepared. She cross-examined witnesses with the knowledge of the facts of the case. She was able to put on character witnesses and other witnesses and cross-examine witnesses to the extent to which she was able to establish a defense. And the defense in this case quite clearly was one of an accidental foot misstep that propelled the defendant's truck into the car of the victim involved in this case. [¶] The Court finds that even if there was any lack of competence on the part of Ms. Bentley that the defendant's own testimony as far as the Court found was completely unreliable and incredible. I cannot believe that given the length of the amount of time that the defendant had, he couldn't have diverted himself. He couldn't have done something different. [¶] I think there was an assault with a deadly weapon. I think the verdict rendered in this case is proper. I find no prejudice whatsoever if there is any failure of the ability to defend. And, therefore, first of all, the request to set aside the waiver of the jury is denied. [¶] Secondly, the motion for new trial in toto is denied at this point."

Sentencing

On October 23, 2009, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve a 365-day jail term.

DISCUSSION

Defendant contends that the court abused its discretion when it denied his motion for a new trial based on his claim of ineffective assistance of counsel. He argues that Harley's performance fell below the minimum standard of a reasonably competent attorney and that her deficient performance prejudiced his right to a fair trial as his waiver of his right to jury trial was neither knowing nor voluntary. "One reason for the deficiency of defense counsel's performance was [Harley's] personal conflict of interest which arose when she had to defend herself in her own bar proceedings." On the morning of December 8, 2008, Harley "told him that the judge had told her that he believed the case against him was weak, and gave him the impression that the judge, in a bench trial, was inclined to acquit him." "[Defendant] would not have waived his right to the jury trial he wanted were it not for [Harley] lying to him about what the trial judge allegedly told her out of [defendant's] earshot." "Had [defendant] known that [Harley] wouldn't be representing him personally, as was the arrangement, and that she was busy defending herself against state bar charges, he would have retained other counsel." "She never even told [defendant] that charges had been leveled against her or that she'd been indicted in federal court around the time of [defendant's] trial."

The Attorney General contends that the court properly denied defendant's motion for a new trial. First, defendant "cannot show deficient performance, as no potentially meritorious defense was withdrawn or even affected by the alleged conduct." "Moreover, [defendant] cannot show a reasonable likelihood of a different result." "To the extent [defendant's] argument is premised on his unbelievable claim that he was told the judge thought the prosecution's case was weak, it fails for the reasons discussed above. The court explicitly found that his waiver was voluntary and 'not done with any means of deception.' Substantial evidence supports this finding."

"A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel's loyalty to his or her client. [Citations.] . . . 'As a general proposition, such conflicts "embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his [or her] responsibilities to another client or a third person or his [or her] own interests. [Citation.]" ' [Citations.]" (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).)

"A new trial may be granted where the trial court finds that the defendant received ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; . . . .) To prevail on this ground, a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it '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[, supra,] 466 U.S. 668, 686; . . . .)" (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660 (Andrade); People v. Callahan (2004) 124 Cal.App.4th 198, 212 (Callahan).)

"[I]n cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings. (Pope, supra, 23 Cal.3d at p. 425; . . . .)" (People v. Fosselman, supra, 33 Cal.3d at p. 584.) "In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest 'that affected counsel's performance--as opposed to a mere theoretical division of loyalties.' [Citations.]" (Doolin, supra, 45 Cal.4th at p. 417.) "[A] determination of whether counsel's performance was 'adversely affected' . . . 'requires an inquiry into whether counsel "pulled his [or her] punches," i.e., whether counsel failed to represent defendant as vigorously as he [or she] might have, had there been no conflict.' [Citation.]" (Id. at p. 418.)

"[A]n ineffective assistance claim made in a motion for new trial differs from one raised for the first time on appeal or petition for writ of habeas corpus. 'After all, the trial court is in the best position to make an initial determination, and intelligently evaluate whether counsel's acts or omissions were those of a reasonably competent attorney.' [Citation.]" (Andrade, supra, 79 Cal.App.4th at p. 660.) "The trial judge is the one best situated to determine the competency of defendant's trial counsel. Where, as here, defendant is represented by different counsel at the motion for a new trial and the issue is called to the trial court's attention, the trial judge's decision is especially entitled to great weight and we defer to his fact finding power." (People v. Wallin (1981) 124 Cal.App.3d 479, 483; Callahan, supra, 124 Cal.App.4th at p. 211.) "A party seeking to overturn a court's decision in this regard 'has the burden to demonstrate that the trial court's decision was "irrational or arbitrary," or that it was not " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" [Citation.]' [Citation.]" (Callahan, supra, 124 Cal.App.4th at p. 211.)

To the extent defendant's contention of ineffective assistance rests on a claim that Harley had an actual conflict of interest that affected her performance, we reject the claim as defendant has not demonstrated that Harley's performance was deficient or that he was prejudiced thereby. (Strickland v. Washington, supra, 466 U.S. at p. 688.) Judge Pennypacker, who heard the motion for a new trial, also accepted defendant's jury trial waiver and presided over pretrial conferences and the court trial. Judge Pennypacker found following the evidentiary hearing on the motion for a new trial that defendant's waiver of a jury trial was knowing, intelligent, and voluntary. The record before us shows that Bentley testified that she was present on December 8, 2008, when Harley discussed with defendant the possibility of his waiving his right to a jury trial. Harley explained the firm's prior successful bench trial before Judge Pennypacker, discussed the pros and cons of a bench trial and a jury trial, and recommended the bench trial as being in defendant's best interest. Defendant agreed that a bench trial was in his best interest. Defendant did not testify that he hired Harley to represent him at trial, only that he got the impression that she was going to do so after taking the case over from Koller. Thus, defendant was not relying on a promise that Harley would represent him at the court trial when he waived his right to a jury trial. And, Judge Pennypacker found, after hearing Bentley, Harley, and defendant testify, that any comments Harley made to defendant during their discussion prior to his jury trial waiver were not meant to deceive defendant in any way.

The reporter's transcript of the hearing where defendant waived his right to a jury trial is not in the record on appeal, but defendant admitted that he did not express any concerns or ask any questions during the hearing. The record shows that defendant did not express any regrets about waiving his right to a jury trial or object to proceeding to a court trial with Bentley prior to the filing of his motion for a new trial. The court stated that it reviewed the transcript and found, in looking at the prosecutor's cross-examination of defendant, that defendant knowingly and voluntarily gave up his right to a jury trial. The court expressly found that any statements Harley made to defendant prior to his jury trial waiver were "not done with any means of deception." Bentley was the attorney from Harley's office who had obtained an acquittal following a court trial before Judge Pennypacker, and Judge Pennypacker found that Bentley was prepared and was able to establish a defense during defendant's trial. The court dismissed defendant's two misdemeanor charges and found defendant not guilty of one of the felony charges. It was defendant's decision to testify in his own defense at trial, but the court found that defendant's testimony was completely incredible. On this record, we find that defendant has failed to show that Harley's representation of him regarding the waiver of a jury trial was not as vigorous it might have been had there been no alleged conflict of interest (Doolin, supra, 45 Cal.4th at pp. 417, 418), and he has failed to show that it is reasonably probable that a more favorable determination would have resulted in the absence of the alleged conflict. (Fosselman, supra, 33 Cal.3d at p. 572.) Accordingly, we cannot say that Judge Pennypacker's decision to deny the motion for a new trial based on Harley's alleged ineffective assistance was irrational or arbitrary, or was not grounded in reasoned judgment. (Callahan, supra, 124 Cal.App.4th at p. 211.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: MCADAMS, J. duffy, J.


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