P. v. Olison

Filed 2/23/07 P. v. Olison CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Joseph Ronald Olison appeals from his conviction of first degree burglary, contending that the denial of his motion for a continuance of the jury trial was an abuse of discretion. Defense counsel asserted he was unprepared to proceed because he was unable to review all of the relevant evidence and subpoena additional documents due to his recent assignment to the case and additional caseload. We conclude that the trial court did not abuse its discretion in denying the continuance and that defense counsel was sufficiently prepared to present an adequate defense. Hence, we shall affirm.

Factual and Procedural Background

On the morning of March 11, 2005, Jennifer Kinner heard noises in the apartment directly above her own. Aware that the occupants were at work, Kinner went outside and observed that the front door was ajar and the bedroom window appeared to be broken. She then dialed 911. While on the phone, Kinner saw defendant come down the stairs of the building saying, Shit, I want my fucking money, and saw him run when he reached the street. Kinner described defendant to the 911 dispatcher.

Vallejo Police Officer Larry Rogers responded to the dispatch. As he approached the scene, he saw two men running and attempted to block the fleeing suspects. Defendant stopped and was detained. Shortly thereafter, Kinner identified defendant at a street show up. Officers Dustin Joseph and Jeremy Huff stopped the second suspect, Damien Green, as he tried to drive away. Upon searching Green, officers found a baggie of marijuana, $450 in cash, and an Atlanta Braves jersey. When the occupant of the apartment, Christopher Rodriguez, returned after being informed of the burglary, he identified the Braves jersey as from his closet and confirmed it was the only item missing.

Green waived his Miranda[1] rights and spoke to Officer Steven Cheatham, to whom in a videotaped interview he confessed to the burglary and implicated defendant. Cheatham also interviewed defendant, who waived his Miranda rights but denied involvement in the burglary. Neither videotape was introduced into evidence nor played for the jury, but Cheatham testified regarding the substance of the interviews.

On May 18, 2005, defendant was charged in an information with first degree residential burglary (Pen. Code,  459). Defendant was initially represented by Deputy Public Defender Kathryn Barton, and the case was first set for trial for November 7, 2005, and later continued to January 9, 2006. On January 2, 2006, the case was reassigned to Deputy Public Defender Danny Maurantonio, who obtained a continuance to Monday, February 27, 2006.

On Friday, February 24, 2006, defense counsel moved for another continuance, asserting that he was unprepared to proceed. Due to his case schedule, defense counsel claimed he had been unable to review the case before February 7, 2006. He had not yet completed his investigation, which included gathering telephone records from Metro PCS Cell Service. He did not have copies of the videotaped interviews of defendant and Green or photographs of the crime scene.

The court denied the motion, finding that good cause had not been shown. Although defense counsel had not yet reviewed the videotapes, he did have a copy of the police report, which summarized the interviews, and the presentence report, which included Greens confession implicating defendant. Furthermore, the deputy district attorney informed defense counsel on February 17, 2006, that he could obtain new copies of the videotapes and photos, and that in the meantime he could borrow the deputy district attorneys copies. Prior to the hearing, defense counsel had not contacted the deputy district attorney regarding discovery. Additionally, all of the Peoples witnesses had been subpoenaed and were ready to proceed.

Trial commenced as scheduled on February 27. Although Green had changed his story several times during his interview with Cheatham, at trial he testified that the two men had gone to Rodriguezs apartment but that defendant did not know that Green intended to burglarize the apartment. Green denied that defendant told him the apartment contained $3,000 in cash but admitted he had initially told Cheatham that defendant shared in the intent to commit the burglary.

Greens probation officer, who had interviewed Green in order to prepare her presentence report, also testified. During the interview, Green told his probation officer that defendant informed him there would be approximately $3,000 to $4,000 in the apartment and asked if Green wanted to enter the residence with him.

Defendant was the sole witness in his defense. He testified that he was in the area to buy marijuana and was attacked by three people. Defendant called Green, believing he had something to do with the robbery, and told him he was coming over in order to get his money back. When defendant arrived, Green drove the two men to the scene of the burglary. Green told defendant he would take care of the situation and left defendant waiting in the car. When defendant became tired of waiting, he went into the apartment building to look for Green but eventually became angry, left the building, and was arrested.

The jury found defendant guilty of burglary in the first degree. After denying defendants motion for a new trial, the court sentenced defendant to the mitigated term of two years. Defendant timely appealed.

Discussion

A continuance may be granted only upon a showing of good cause. (Pen. Code,  1050, subd. (e).) Whether good cause exists    rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.    (People v. Panah (2005) 35 Cal.4th 395, 423.) Other factors for the trial court to consider are whether the continuance would be useful (People v. Frye (1998) 18 Cal.4th 894, 1012-1013) and whether both the party and counsel have used due diligence in their efforts to prepare for trial. (People v. Grant (1988) 45 Cal.3d 829, 844.) This discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646.)

Upon review, defendant bears the burden of establishing that denial of a continuance constituted an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. (People v. Frye, supra, 18 Cal.4th at p. 1013.) Reversal of a conviction is unwarranted if the defendant fails to show an abuse of discretion and resulting prejudice. (People v. Barnett (1998) 17 Cal.4th 1044, 1126.)

The trial court did not abuse its discretion in failing to grant defendants last motion for a continuance. As indicated above, in support of his motion counsel cited three reasons why he was unprepared to proceed: he did not have photographs of the crime scene; he did not have copies of the videotaped interviews; and he had not subpoenaed telephone records. The court was fully justified in considering these reasons insufficient to require a continuance.

The half dozen photographs to which defense counsel referred pictured the apartment, the point of entry and the ransacked condition of the apartment, all facts that were uncontested. There was no physical evidence tying defendant to the crime scene. By the time of trial, defense counsel did receive and had the opportunity to review these photographs. They were entered into evidence without objection and were used by defense counsel in cross-examining Kinner.

The content of the two videotaped interviews with Officer Cheatham was summarized in the police report that defense counsel had received. Defense counsel also had Greens presentence report, which included his confession implicating defendant. Defense counsel did receive the videotapes and by the time of trial had reviewed them, as indicated by his cross-examination of Cheatham.

Given the nature of the photographs and videotapes, it was reasonable for the trial court to believe counsels assessment of his unpreparedness was exaggerated. (See People v. Gray (2005) 37 Cal.4th 168, 225.) In addition, defense counsel failed to show due diligence in his attempts to procure and review this evidence, also a relevant factor. (People v. Grant, supra, 45 Cal.3d at p. 844.) The record does not indicate when defense counsel notified the prosecutor that he did not have the photographs and videotapes, but the prosecutor informed defense counsel on February 17, 2006, how new copies could be obtained and that in the meantime the prosecutions copies were available for review. Again on February 21, the assistant district attorney reminded defense counsel of the availability of the photographs and videotapes. Defense counsel claimed his involvement in another trial caused the delay in requesting the discovery. However, very little effort would have been required to evaluate the need for these materials or to have requested them from the prosecutor. Moreover, as the court noted in denying the continuance motion, and subsequently repeated in denying defendants new trial motion, that case was not particularly complicated and did not preclude the attorney from devoting some attention to this case. [J]ury selection took longer than the trial itself and deliberation took twice as long as the jury selection.

Defense counsel also requested time to subpoena records from Metro PCS cellular service, but never indicated when these documents would be obtained or, more importantly, what evidentiary value they would serve. Presumably counsel sought to obtain defendants cell phone records to confirm defendants phone call to Green. However, the records would not indicate the content of the call, and if and when defendant called Green was both uncontested and immaterial to whether he committed the burglary. Defense counsels comments during the hearing on the motion shed no further light on this issue. Hence, there was no showing that a continuance would have been useful for this purpose. (See People v. Frye, supra, 18 Cal.4th at p. 1017.)

In denying the motion, the trial court properly considered the following additional factors: the witnesses had been subpoenaed and were ready to proceed, the trial date had already been delayed twice, and defense counsel did not indicate a future date when he would be ready. These circumstances also support the trial courts exercise of its discretion in denying the motion. (People v. Panah, supra, 35 Cal.4th at pp. 423-424.)

In his opening brief defendant advances additional reasons for the requested continuance that were first mentioned in his motion for a new trial. Defendant argues that in addition to not having adequate time to review discovery, defense counsel had not discussed the case with defendant, finalized his witness list, prepared motions in limine or consulted with an expert witness. During the hearing on the motion for a new trial, counsel stated that defendant was required to testify without any prior preparation. These additional arguments, which in all events are unsupported by a declaration from defense counsel, were not presented to the trial judge when the continuance was requested. They are of no significance in evaluating whether the court abused its discretion in denying the motion. (People v. Panah, supra, 35 Cal.4th at p. 425.)

Defendant cites Hughes v. Superior Court (1980) 106 Cal.App.3d 1, and People v. Fontana (1982) 139 Cal.App.3d 326, but both are readily distinguishable. In Hughes, the court granted a writ of prohibition following the issuance of a contempt order imposed for an attorneys refusal to proceed to trial after his motion for continuance was denied. (Hughes v. Superior Court, supra, at pp. 3, 6.) The petitioner claimed he could not give adequate representation because there was a serious psychiatric issue and petitioner had been unable to interview the psychiatrist appointed to examine the defendant. (Id. at pp. 3-4.) The court held that where counsel is unprepared on a crucial aspect of the case, requiring counsel to proceed regardless of the reasons for the lack of preparedness, would result in a violation of [the clients] constitutional right[] [to effective assistance of counsel]. (Id. at p. 4.)

In Fontana, defense counsel requested a continuance because he was unprepared to proceed. In support of his motion, he informed the court that due to the difficult case he was trying that week, and the homicide case he tried the week before, he had not finished his investigation. He explained in detail that he had not reviewed the 150-page packet of materials received that Monday regarding the charge, nor reviewed the preliminary hearing transcript, and that because his client was in custody in another county he had not yet discussed the case or the preliminary hearing evidence with his client. As a result, defense counsel requested a one week continuance, which was denied. This court held that the trial court prejudicially abused its discretion in denying the motion for a continuance, but also noted that nothing in this opinion should be read as intimating that a mere representation of unpreparedness is sufficient . . . . (People v. Fontana, supra, 139 Cal.App.3d at pp. 334-335.)

In Hughes and Fontana counsel for good reason were unprepared for trial on crucial issues. That was not the case here. Defense counsel had access to and reviewed all relevant discovery prior to trial for a case that was not particularly complex. The court was justified in concluding that counsel had not exercised sufficient diligence and the record reflects that he was able to prepare himself by the time the trial began.

The record provides no indication that the denial of the continuance deprived defendant of effective representation at trial. With respect to the reasons for delay first mentioned in the motion for a new trial, defendant failed to articulate what motions in limine he would have submitted with additional time to prepare or how any such motions might have affected the course of the trial; he did not specify what expert witness he would have consulted or the issue as to which an expert opinion was needed; and he failed to identify additional witnesses he would have called with additional time or what testimony they might have offered. According to defendants testimony, he and defense counsel did have some conversations prior to his being called to testify. Hence, we perceive no indication that defendant did not receive effective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 690.) Defendant has failed to establish that the trial court abused its discretion in denying his motion for a continuance and there is no indication that he suffered any prejudice as a result of the denial.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

[1]Miranda v. Arizona(1966) 384 U.S. 436.