Filed 9/23/14 P. v. Vargas 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B252072

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA401370)
         v.

GIOVANNI VARGAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Teri Schwartz, Judge. Affirmed.
         Stephanie L. Gunther, under appointment by the Court of Appeal, 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 Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
      A jury convicted Giovanni Vargas of one count of attempted robbery (Pen.
Code, §§ 664/211) and two counts of resisting, obstructing or delaying a police
officer (Pen. Code, § 148, subd. (a)(1)).1 In a court trial, the trial court found true
the allegations of a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)), a prior serious felony conviction ( § 667, subd. (a)(1)), and a prior prison
term (§ 667.5, subd. (b)). The court sentenced appellant to a total term of 9 years
in state prison. In this appeal from the judgment, appellant contends that the trial
court erred in failing to conduct an evidentiary hearing regarding his allegation of
ineffective assistance of counsel in his motion for new trial. We disagree and
affirm the judgment.


                            FACTUAL BACKGROUND
      On August 12, 2012, around 5:30 p.m., Miguel Velasquez returned to his
home after a bicycle ride. He was in front of his home, placing his bicycle and
other equipment in his car, when appellant, who was shirtless, ran toward him and
asked in Spanish for money.2 Velasquez noticed appellant had a tattoo on his arm
and smelled of alcohol. Velasquez said he had no money and began backing away.
      Appellant turned his attention to Velasquez’s neighbor, who was fixing his
car across the street, but the neighbor pulled out a metal bar to scare appellant
away. Appellant then grabbed Velasquez’s bicycle. Velasquez said, “It’s my
bike,” and began struggling with appellant. They both fell to the ground, and
appellant kicked Velasquez in the knees and punched him in the head. Two other
men approached and also started punching Velasquez. Velasquez’s neighbor

1
      All further statutory references are to the Penal Code.
2
      Velasquez identified appellant at trial.

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yelled that he was going to call the police. The two other men ran away.
Appellant tried to take the bicycle again, but was unable to take it from
Velasquez’s grasp, and ran away.
       Velasquez went inside his apartment to clean his injuries. When he went
outside to move his car approximately 30 minutes later, he saw appellant and one
of the two men who attacked him walking toward him down the street. Velasquez
quickly went back inside his apartment. When he returned outside a few minutes
later, Los Angeles Police Department Officers Rudy Guzman and Alvaro Ramos,
who responded to the call about the incident, were already there. Velasquez
pointed to appellant and his companion, who were walking down the street, and
told the officers they were his assailants.
       Officer Guzman handcuffed appellant, who stated that he “didn’t do it,” and
that he appeared injured because he fell off a skateboard. The officers arrested
appellant and transported him to the police station. On the way, appellant
unfastened his seat belt, began kicking the car door, and yelled for help. When
they arrived at the police station, appellant jumped out of the car, landed on the
ground, and began spitting. The officers placed a spit mask over his face and lifted
him to his feet, but appellant became dead weight. Appellant then walked into the
police station and kicked Officer Ramos. The officers then put him in leg
restraints.
                                    DISCUSSION
       Before trial commenced, appellant made a Marsden motion for substitution
of counsel. (People v. Marsden (1970) 2 Cal.3d 118.) In the hearing on the
motion, appellant stated that “there’s certain things that haven’t been brought up
that need to be brought up.” In response, defense counsel stated that appellant had
raised the possibility of other witnesses, but that counsel had interviewed all the

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witnesses, including a friend of appellant’s who was not present at the beginning of
the incident. Appellant also stated that he wanted counsel to make a Pitchess
motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and to obtain records of
telephone calls to the police and police radio transmissions. Defense counsel
replied that she had explained to appellant that she had requested the phone calls
and transmissions from the prosecutor, and that a Pitchess motion was not relevant
to the attempted robbery charge because there were no police officers present at the
time of the incident. The court denied the Marsden motion.
      After the jury convicted appellant and he waived his right to a jury trial on
the prior convictions, he asked to represent himself for the remainder of the case.
On March 12, 2013, the court granted the request, and thereafter in a court trial
found the priors allegations true. Pending sentencing, the matter was continued
several times while appellant made requests for items such as the trial transcript,
documents, auxiliary funds, an investigator, and legal supplies. He ultimately filed
a motion for a new trial, alleging (as here relevant) that his trial counsel was
ineffective because: (1) she failed to present the affirmative defense of mutual
combat and self-defense; (2) she refused to permit him to take the stand; (3) she
did not call a material witness, Arthur Gazanichian, to testify; (4) she did not
obtain photographs of his defensive injuries; (5) she failed to highlight his
intoxication during the altercation; and (6) she failed to challenge the sufficiency
of the evidence.
      The hearing on the new trial motion and sentencing was held on October 21,
2013. In denying the motion for new trial, the trial court declined to consider the
allegations of ineffective assistance of counsel because they concerned matters
outside the record. Appellant contends that the trial court erred in failing to
conduct an evidentiary hearing on the allegations. We disagree.

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       “‘We review a trial court’s ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.’ [Citations.] ‘“A trial court’s ruling on a
motion for new trial is so completely within that court’s discretion that a reviewing
court will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion.”’ [Citations.]” (People v. Thompson (2010) 49 Cal.4th 79, 140; People
v. Hayes (1999) 21 Cal.4th 1211, 1260-1261 (Hayes).)3 Section 1181 sets forth the
grounds for a new trial following a verdict against the defendant. (People v.
Fosselman (1983) 33 Cal.3d 572, 582 (Fosselman).) Although ineffective
assistance of counsel is not an enumerated statutory ground, Fosselman held that
such a claim may be asserted as a basis for a new trial. (Id. at pp. 582-583.)
       The California Supreme Court has “explained that ‘the trial court should
consider a claim of ineffective assistance of counsel in a motion for new trial . . .’
when the ‘“issue of counsel’s effectiveness can be resolved promptly at the trial
level”’ and justice will . . . thereby be expedited. [Citation.] ‘But our assumption
has been that courts would decide such claims in the context of a motion for new
trial when the court’s own observation of the trial would supply a basis for the
court to act expeditiously on the motion. . . . “It is undeniable that trial judges are
particularly well suited to observe courtroom performance and to rule on the
adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in
appropriate circumstances justice will be expedited by avoiding appellate review,
or habeas corpus proceedings, in favor of presenting the issue of counsel’s
effectiveness to the trial court as the basis of a motion for new trial. If the court is


3
        Respondent relies on Hayes to argue that appellant forfeited his claim by failing to
request an evidentiary hearing. However, as appellant argues, the trial court made it clear
that it would not hold a hearing when it stated that it would not litigate the ineffective
assistance of counsel claim because it would require a determination of matters outside
the record.
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able to determine the effectiveness issue on such motion, it should do so.”’
[Citation.]” (People v. Carrasco (2014) 59 Cal.4th 924, 981 (Carrasco).)
      On the other hand, where justice will not be expedited by determining the
ineffective assistance of counsel claim on a new trial motion, the trial court does
not abuse its discretion by declining to determine the effectiveness issue. “[I]n
[People v. Cornwell (2005) 37 Cal.4th 50, overruled in part on other grounds by
People v. Doolin (2009) 45 Cal.4th 390, 421], [the Supreme Court] held that the
trial court acted within its discretion in concluding the claim could not be readily
resolved but rather should be litigated in a habeas corpus proceeding. [Citation.]
The matter in Cornwell ‘would have been delayed for at least six months while
substitute counsel examined trial counsel’s case records and performed additional
investigation concerning witnesses who did not appear at trial and evidence that
was not in the record, in order to decide whether to make a motion for new trial.’
[Citation.]” (Carrasco, supra, 59 Cal.4th at p. 981.)
      Here, all but one of appellant’s claims – the exception being counsel’s
purported failure to challenge the sufficiency of the evidence – “‘rested primarily
upon matters other than what the trial court could have observed during trial’
[citation] . . . .” (Carrasco, supra, 59 Cal.4th at p. 981.) Appellant argued that
counsel was ineffective for failing to present the affirmative defense of mutual
combat and self-defense, interfering with his right to testify, not calling a material
witness, Arthur Gazanichian, not obtaining photographs of his defensive injuries,
and failing to highlight his intoxication during the altercation. Resolution of all of
these matters would have required evidence not in the record concerning what
additional evidence, if any, was available at trial, defense counsel’s consultations
with appellant, and defense counsel’s tactical decisions in proceeding as she did.
Obviously, they could not have been resolved on the trial record alone. The sole

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remaining ground of alleged ineffectiveness – that counsel did not challenge the
sufficiency of the evidence – was belied by the record. At the close of the
prosecution’s case, defense counsel moved to dismiss for insufficiency of the
evidence under section 1118.1. The trial court denied the motion. Under these
circumstances, the trial court did not abuse its discretion in declining to hold an
evidentiary hearing on the ineffective assistance claim. Rather, if appellant wishes
to pursue the claim, habeas corpus is the proper method. “Usually, ineffective
assistance of counsel claims are properly decided in a habeas corpus proceeding
rather than on appeal. [Citation.] For this reason, ‘the rules generally prohibiting
raising an issue on habeas corpus that was, or could have been, raised on appeal
[citations] would not bar an ineffective assistance claim on habeas corpus.’
[Citation.]” (Carrasco, supra, 59 Cal.4th at pp. 980-981.)


                                   DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                               WILLHITE, J.



             We concur:




             EPSTEIN, P. J.                    EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
 to article VI, section 6 of the California Constitution.
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