P. v. Guzman

Filed 4/24/07 P. v. Guzman CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. David M. Mintz and Carol H. Rehm, Judges. Affirmed.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Jose Clementino Guzman challenges his assault with a deadly weapon, aggravated mayhem, corporal injury to a spouse, and stalking convictions on the ground the trial court erred by refusing to allow him to retain private counsel. We conclude the court did not err, as the trial was about to commence, and appellant had not arranged for another attorney to represent him.

BACKGROUND AND PROCEDURAL HISTORY

Appellant stabbed his former cohabitant, Delfina Rosas, numerous times in the face and neck.

A jury convicted appellant of assault with a deadly weapon or by means of force likely to produce great bodily injury, aggravated mayhem, inflicting corporal injury to a former cohabitant, and stalking. It acquitted him of battery and assault. The jury found appellant personally used a knife in committing mayhem and inflicting corporal injury to a former cohabitant, and he personally inflicted great bodily injury under circumstances involving domestic violence. Appellant was sentenced to prison for life, plus one year and eight months.

DISCUSSION

Appellant contends the trial court violated his right to due process and right to counsel by refusing to allow him to retain private counsel just before his trial began.

Appellants case was called for trial on October 12, 2005.^[1] Two witnesses failed to appear, and the parties stipulated to a continuation to October 14. On October 14, the case was again called for trial. Appointed defense counsel told the court he was ready for trial, but appellant had informed him that he wanted to retain private counsel. The court inquired of appellant:

The Court: All right. Let me first ask you, Mr. Guzman, do you have a private lawyer that you have hired?

Appellant: Yes. I need to talk to my wife and my wife is going to thats right, sir, because in this country Ive never stolen, I never sold drugs and Im not guilty.

The Court: No, thats not what I asked you. [] Mr. Guzman, stop. Listen carefully to the question that I ask you. I didnt ask you whether you stole or sold drugs. What I asked you was have you hired a lawyera private lawyer. Have you hired --

Appellant: No, I am going to hire a lawyer.

The Court: All right. So you have not hired a lawyer as of todays date?

Appellant: No. Yesterday I spoke with my wife. My wife is here in court.

The court asked appellant why he had waited five months to attempt to retain private counsel. Appellant explained that his wife, who had not worked previously due to illness and injury, had begun working. The court found that appellants request was made for the purpose of delay and was speculative, in that he had not retained an attorney and was unlikely to have the funds to do so. It denied the request. Nonetheless, the court told appellant if he hired an attorney and the attorney came into court on Monday (next court day), he could ask the master calendar judge to allow the attorney to substitute into the case. Appellant then told the court that he had spoken with an attorney named Vicente. He continued, I didnt have time to speak with him. I didnt really have access to the phone. Appellant did not know the attorneys surname or have his phone number with him in court.

On Monday, October 17, the case was assigned to another judge for trial. Defense counsel told the court that appellant had not given him an answer about wearing civilian clothing, but instead stated he was waiting for his other attorney to appear. The court explained to appellant that he had an attorney and the question was about clothing. Appellant replied, Your honor, I would request from you some time to be able to contact my attorney so that he can continue with the trial. And I cant say anything from my mouth, and it is impossible for my wife because she cant work. I am the one that has to support her. I need to work. [] I didnt have the time to call when I got to the dorm because we only have three telephones and they were busy, and I just couldnt get to call her. That is why I have not been able to communicate with my attorney. And I wanted to call my wife. Up to today I havent been able to.

The court noted that appellants prior motion for a continuance to hire private counsel had been denied, and it found his new request untimely.

After the lunch recess, defense counsel informed the court that appellant had stated he wanted to speak with the judge and did not want him to continue serving as his attorney. The court interpreted this as a request for substitution of appointed counsel, and conducted a hearing outside the prosecutors presence. Appellant told the court, I would like to put my own lawyer. I want to beg for the chance to do that. The court told appellant that unless he had an attorney who was ready to step in and try the case at that time, his request was untimely and had already been dealt with. Appellant asked, Cant I get some time like from here to Friday, please? The court denied the request. Appellant later asked for a couple of weeks so that I can get a lawyer so that he can investigate everything. Appellant told the court about his background and about various character witnesses he wished to call to testify on his behalf. The court again denied the continuance motion.

The right to the effective assistance of counsel encompasses the right to retain counsel of ones own choosing. (Peoplev.Courts (1985) 37 Cal.3d 784, 790.) A trial court is required to make all reasonable efforts to ensure that a defendant financially able to retain an attorney can be represented by his chosen attorney. Once retained, counsel must be given a reasonable time to prepare the defense. (Ibid.)

A trial court should grant continuances linked to an assertion of the right to retained counsel to the fullest extent consistent with effective judicial administration. (Peoplev.Courts, supra, 37 Cal.3d at p. 791.) Generally, granting a continuance is within the courts discretion. (Id. at p. 790.) However, the right of the accused and the People to an expeditious disposition imposes a duty on the court to expedite criminal trials to the greatest degree consistent with the ends of justice. (Pen. Code, 1050; Peoplev.Lucev (1986) 188 Cal.App.3d 551, 557.) 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. (Peoplev.Courts, supra, 37 Cal.3d at pp. 790-791.)

At best, appellant had spoken with an unidentified attorney at some undetermined time before October 14. He did not indicate that the attorney had agreed to represent him or that he had actually retained the attorney. The attorney did not appear on October 14 or October 17. On neither date did appellant identify the attorney. Therefore, he failed to demonstrate the first and most important requirement for a substitution of attorney: an attorney who is willing and able to assume responsibility for the case. Appellants request was really one for a continuance to find an attorney. Although appellants circumstances may have prevented him from retaining counsel at an earlier time, he had not made sufficient progress in retaining an attorney to warrant granting a continuance as trial was about to begin. Granting appellant a continuance of a week or two to attempt to retain counsel would have disrupted the orderly and expeditious administration of justice, in that appellants case was ready for trial, had twice been called for trial, and witnesses were apparently scheduled to appear. And, given appellants failure to arrange for an attorney to take his case, there was little or no likelihood that anything would be achieved by a continuance except delay and disruption. The trial court did not abuse its discretion in denying his requests for a continuance and/or substitution of counsel.

Appellant was represented by counsel at trial and, in the absence of any showing that another attorney was available and willing to represent appellant, the courts denials of continuances did not violate appellants right to counsel. Nor did they render appellants trial so fundamentally unfair as to amount to a due process violation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] Unless otherwise noted, all dates refer to 2005.