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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

GIOVANNI VARGAS,

Defendant and Appellant.

 B252072

 (Los Angeles County

 Super. Ct. No. BA401370)

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.
2

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. 
3

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.