P. v. Perkins

Filed 4/5/07 P. v. Perkins CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Stephen H. Ashworth, Judge. Affirmed in part and reversed in part with directions.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Myron Lee Perkins was convicted by a jury of four counts of second degree commercial burglary (Pen. Code,  459)^[1]and two counts of forgery ( 470, subd. (a)). Based on these and prior convictions, defendant was sentenced to 13 years in prison. He contends the trial court violated section 654 because it did not stay the execution of sentence on three out of the four burglary charges. Defendant also argues his sentence is unconstitutional for two reasons: First, defendant claims he was denied his right to retained counsel of his choice at sentencing. Second, defendant claims the trial court imposed the upper term for the burglary charged in count 1 based on factors not found true by a jury in violation of the Supreme Courts recent decision in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].

FACTUAL AND PROCEDURAL HISTORY

Evidence presented at trial indicated defendant persuaded an 18-year-old girl to open a bank account in her name so they could make some money. He told her it was not illegal and promised her he would give her $4,200 if she would open the account. Defendant deposited two forged checks into the account using ATM machines in different locations ‑‑ one on June 30, 2005 in the amount of $23,813 and another on July 8, 2005 in the amount of $4,200. The checks had been stolen from two different individuals and then washed to show the girls name as the payee.

On July 1, 2005, defendant instructed the girl to make four separate withdrawals in four separate amounts at four different banks. Evidence indicated defendant entered the bank while the girl made the first withdrawal. The girl succeeded in cashing all four checks and gave the money to defendant. On July 8, 2005, after the second check was deposited, defendant told the girl there was $4,200 in the account and she could go and get it as that is what she was previously promised. She tried to withdraw the money but was unable to do so. He then told her to wait a few days and try again. The girl was then contacted by law enforcement when she attempted to withdraw money at a bank located inside a grocery store. When interviewed, she was cooperative, told police what happened, and identified defendant as the director of the scheme.

A jury found defendant guilty of forgery in connection with the two checks that were deposited into the girls account (counts 3 and 5). He was also found guilty of aiding and abetting the burglaries which were committed to obtain the funds deposited into the account using the forged checks (counts 1, 6, 7, and 8). Defendant was found not guilty of two other forgery charges (counts 2 and 4). Defendant had one prior strike conviction ( 1170.12, subd. (c)(1), 667, subd. (e)(1)) and three prior convictions with prison terms ( 667.5, subd. (b)). The trial court sentenced defendant to the upper term of six years on count 1 (burglary), stayed the sentence on the two forgery convictions (counts 3 and 5) pursuant to section 654, and imposed consecutive one-year four-month sentences for each of the other three burglaries (counts 6, 7, and 8). Three years were then added as a result of prior convictions, for a grand total of 13 years in prison.

DISCUSSION

A. Section 654

Pursuant to section 654, the trial court stayed the two check forgery convictions (counts 3 and 5), essentially finding the forgeries were indivisible from the burglaries because the forgeries were committed to facilitate the burglaries. Although the court did not state its reasons, it did not stay any of the four burglary convictions but instead imposed separate sentences for each (counts 1, 6, 7, and 8). Defendant argues the trial court should have stayed the sentences on all but one of the four burglary convictions. According to defendant, all four burglaries were part of a course of conduct comprised of indivisible acts, and he had a single objective in committing all of the burglaries: obtaining the funds from the forged check that had been deposited into [the girls] account on June 30th.

Whether multiple convictions should be stayed pursuant to section 654 is primarily a factual question which will not be disturbed on appeal if supported by substantial evidence. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) [W]e consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) Section 654, subdivision (a), states as follows: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. The purpose of section 654 is to ensure punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)

Section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Perez (1979) 23 Cal.3d 545, 551.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. (Ibid.) Thus, when a course of conduct is at issue, the focus of inquiry is whether the defendant entertained single or multiple criminal objectives. (People v. Macias (1982) 137 Cal.App.3d 465, 470.)

In People v. Curtin (1994) 22 Cal.App.4th 528, 532, for example, the defendant entered a bank to cash a forged check and was convicted of forgery and burglary. As in this case, the appellate court found it was appropriate to stay the defendants conviction for forgery under section 654, because forgery and burglary were part of the same indivisible transaction and were committed for a single criminal objective, to cash the check. (Ibid.) The facts of this case, however, are easily distinguishable from those considered in Curtin. Here, by contrast, defendant planned and carried out a relatively sophisticated scheme in which he persuaded a young woman to open a bank account for the purpose of depositing forged checks. He then had the young woman enter into four separate, unlawful banking transactions at four different times and in four significantly different locations, each time obtaining money in smaller amounts in an apparent attempt to avoid detection. Yet defendant would have us conclude he is only as culpable as the defendant in Curtin, and, as a result, his punishment should, as in Curtin, only reflect a single burglary. Defendants argument is untenable given the purpose of section 654 ‑‑ to ensure that punishment is commensurate with culpability. (People v. Latimer, supra, 5 Cal.4th at p. 1211.)

Based on the purpose of section 654, and viewing the evidence in the light most favorable to the People, we conclude it supports a finding that each of the four burglaries was a divisible act or transaction with different objectives. Even though it is apparent defendants overall objective was to obtain all of the funds from the forged check deposited June 30th, he had separate objectives when he aided and abetted each of the four burglaries ‑‑ to obtain the funds from the forged check in specific, smaller amounts in order to avoid detection. In other words, he was aware a single burglary was unlikely to accomplish his overall objective because he might raise suspicions when withdrawing such a large amount of money in a single transaction, so he developed four independent objectives to obtain money in smaller amounts. Defendant may therefore be punished for the pursuit of each independent objective even though each burglary was part of a grander scheme. Accordingly, we conclude it was appropriate for the trial court to impose a separate sentence for each of the burglaries rather than stay execution of the sentences on three out of the four burglaries under section 654.

B. Right to Counsel of Choice

Defendant argues the trial court violated his federal constitutional right to be represented by counsel of choice when it denied his request to continue a sentencing hearing to allow a substitution of private counsel in place of his public defender. However, the record reveals defendants argument lacks merit.

Throughout the trial, defendant was represented by a public defender. He was convicted by a jury on December 8, 2005. At defendants request, the court granted a continuance until December 19, 2005 for a trial on the prior conviction allegations. Defendant admitted the prior conviction allegations at the hearing on December 19, 2005, and the matter was continued until January 30, 2006 for sentencing.

On January 30, 2006, attorney Valerie Ross appeared specially and made a request to substitute Gregg Eichler in as defendants counsel and to continue the sentencing hearing for almost two months, until March 24, 2006. When the court asked Ms. Ross whether money exchange[d] hands, she replied, I believe so. Ms. Ross also stated defendant wanted another attorney to look at his case and possibly file a motion for a new trial. When questioned by the court, defendant also represented he had hired Gregg Eichler. The court continued the sentencing hearing as requested until March 24, 2006.

On March 24, 2006, Ms. Ross made a second special appearance, and the court noted the defendant was convicted in early December, and the defendant had then retained a law firm thats never appeared on the case except by special appearance. The court then stated: Im going to reappoint the public defender. Im not going to relieve them. If they want to be relieved, they should be here. [] . . . [] . . . Were going to put it over to [March 30, 2006]. Well bring [defendant] back here for pronouncement of judgment. I assume that the trial attorney for the public defenders office will be prepared to go forward, if you cant get these people that were retained to ever appear. The courts minute order states, attorney Gregg Eichler is to be personally present at the next hearing or the public defender remains appointed. (Capitalization omitted.) The matter was then continued until March 30, 2006.

On March 30, 2006, the public defender appeared, but defendant was not present. The courts minutes note defendant didnt want to come up today because he didnt think he had a court date. The matter was continued until April 3, 2006, and the sheriffs department was authorized to use reasonable force to compel defendant to make his next court appearance.

On April 3, 2006, the public defender appeared again and informed the court, weve gotten a phone call from a private attorney who said hes been retained. He further stated: The call came here to your bailiffs phone. I talked to the attorney. His name is Don Ferguson. I understand he has been retained by the family. He would like to put it over two weeks. Hes stuck in Rancho in a custody matter. The following colloquy then occurred:

THE COURT: I think I indicated that if somebody didnt appear for the defendant today, that [the] public defender is going to handle this case.

[PUBLIC DEFENDER]: I believe the Court did say that. We had no indication, I believe, before today that anybody had actually been retained. Apparently he was retained late. And on behalf of my client and Attorney Ferguson, we would request the matter be put over two weeks. [] . . . []

THE COURT: Where is he from?

[PUBLIC DEFENDER]: I didnt ask him that. He said he would call the court after a while to find out what the new date is.

THE COURT: Yeah, Im not exactly willing to put this over. The information was just ridiculous. [] . . . []

THE COURT: Do you have a phone number?

[PUBLIC DEFENDER]: I can check the State Bar. . . . [] . . . []

THE COURT: The problem I see is that this defendant was convicted back in early December and here its April. [] . . . [] . . . Im not going to go any farther on it, especially if no one has appeared and we dont know who this person is.

[PUBLIC DEFENDER]: Well, I think up to this point, there was [no] indication if somebody was or might be retained. We have an indication that somebody has been retained, and I think an additional two weeks is not an outrageous request.

THE COURT: The point is, as far as Im concerned, youre still the attorney.

[PUBLIC DEFENDER]: Thats true, until he actually appears. Like I said, hes indicated hes stuck in Rancho Cucamonga on an emergency custody situation. Hes requesting two weeks to be able to look at the information.

THE COURT: Oh, yeah. Hes brand new, doesnt know anything about it, and in two weeks hell come in and want a continuance.

[PUBLIC DEFENDER]: I dont know that.

THE COURT: Well, I do. And Im just not willing to do it, so were going to go forward today. . . .

The matter was then recessed to await another phone call from the alleged new attorney, as well as the arrival of the prosecutor who tried the case. When the hearing resumed, the public defender repeated his request for a continuance. The court reiterated its prior ruling and added, I see it as nothing but a delaying tactic, and its time. Shortly thereafter, the public defender stated: [Defendant] was explaining that his family has had a great deal of difficulty retaining Mr. Ferguson, and hes still requesting to be given an opportunity for Mr. Ferguson to appear. The court responded as follows: Well, I think Ive just done enough on this and Im not willing to delay it one more day. Four months is long enough. Defendant was sentenced immediately thereafter.

Although a defendant has a constitutional right to retain an attorney of his choice, the right is not absolute and must be carefully balanced with other values of substantial importance, such as the speedy determination of criminal charges. (People v. Crovedi (1966) 65 Cal.2d 199, 206-207.) In this regard, the right to counsel of ones choice may be forced to yield when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. (Id. at p. 208.)

Requests for continuances are within the discretion of the court. (People v. Courts (1985) 37 Cal.3d 784, 790.) Continuances shall be granted only upon a showing of good cause. ( 1050, subd. (e).) The defendants right to counsel of his choice must, of course, be considered when the defendant requests a continuance to substitute counsel, and the courts are required to make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney. (People v. Courts, supra, at p. 790.) However, a continuance may be denied where the accused is unjustifiably dilatory in obtaining counsel. (Id. at pp. 790-791.) Reviewing courts have also upheld decisions by trial courts to deny requests for continuances where participation by a particular private attorney was still quite speculative at the time the motion for continuance was made. (Id. at p. 791, fn. 3.) Likewise, the denial of a continuance may be appropriate if based on the accuseds representation that he would eventually be able to hire counsel of his own choosing. (Ibid.) The denial of a continuance will be affirmed on appeal absent a showing of an abuse of discretion. (Id. at p. 789.)

Given the facts presented, we are in agreement with the trial courts concern that defendants repeated requests for continuances were merely delaying tactics. Defendant had from December 8, 2005, the date he was convicted, until April 3, 2005, the final date set for sentencing, to retain new counsel who could actually appear on his behalf. Counsel specially appearing for the first alleged new attorney specifically requested a continuance of almost two months, until March 24, 2006, but the new attorney failed without explanation to appear in court that day even though he was given a deadline to do so, leaving the impression there was never a formal retention. The attorney who made special appearances only stated she believed money had been exchanged, and the court was given no verifiable reassurance the alleged new counsel ever actually agreed to take the case and appear before the court on defendants behalf. Without more, it appears the retention was still quite speculative at the time the continuance was requested.

Defendants refusal to appear in court on March 30, 2006 also suggests defendant was attempting to delay sentencing. Although the courts minutes state he refused to appear on March 30, 2006 because he didnt think he had a court date, he was present at the prior hearing just a few days earlier on March 24, 2006 when the court set the date. Defendant knew the court had given March 30, 2006 as the deadline for new counsel to appear. Thus, it is reasonable to infer defendant refused to appear in court that day because he was aware no new counsel would be present at the hearing and he wanted to avoid being sentenced that day.

The telephone call received at the court from the second alleged new attorney named Don Ferguson on April 3, 2006, the morning of the next date set for hearing, was equally questionable. Despite the previous continuances and the courts already expired deadline, this second purported attorney wanted two more weeks to be able to look at the information. His request for an additional two weeks was made with no verifiable reassurance whatsoever that there was a formal retention or that he would in fact be ready to proceed in two weeks. He also left no information indicating where he could be contacted, and there is nothing to indicate he had any more to do with the case. Once again, without more, it appears this retention was also still quite speculative at the time the continuance was requested.

In sum, the facts presented establish the trial court made reasonable accommodations for defendant to retain new counsel to represent him after he expressed a desire to do so following his conviction, but defendant was not diligent in his efforts. By all appearances, defendant did nothing more in the four months between his conviction and the final date set for sentencing than find two attorneys who agreed to look at his case to consider whether they were willing to be formally retained. As such, we conclude defendants retention of private counsel to replace his public defender was merely speculative at the time he requested continuances on January 30, 2006, March 24, 2006, and April 3, 2006. Under these circumstances, we cannot conclude the trial court abused its discretion in refusing to grant the continuance requested at the hearing on April 3, 2006.

We must also reject defendants contention that the trial courts denial of his request for another continuance on April 3, 2006 was unreasonable under the circumstances. Defendant claims the continuance would not have been unreasonably inconvenient to the court or either party, and would not have had any significant impact on the goal of effective judicial administration, or on the efficient management of the courts calendar, particularly given the fact no witnesses were necessary for the sentencing hearing. Defendants argument ignores the facts and is contrary to public policy dictated by the Legislature which has determined that: The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time. To this end, the Legislature finds that the criminal courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses. Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice. . . . ( 1050, subd. (a).)

When defendant made his final request for a continuance, he had already failed to appear in court as ordered on March 30, 2006 without a viable excuse, been given two posttrial continuances for the purpose of retaining private counsel based on inadequate information, and spent four months in presentence confinement. The court had already made time for four posttrial hearings on its calendar for January 30, 2006, March 24, 2006, March 30, 2006, and April 3, 2006, and the prosecutor and public defender had already had to make four posttrial court appearances. The court had no assurance the case would be any closer to disposition if another two-week continuance had been granted at defendants request during the hearing on April 3, 2006.

C. Violation of Blakely

Defendant argues his sentence, which includes an upper term on count 1, is unconstitutional under Blakely v. Washington, supra, 542 U.S. 296, because it is based on factors which were not found true by a jury applying the reasonable doubt standard of proof. In support of the argument, defendant cites the transcript of his sentencing hearing indicating the trial court imposed the upper term on count 1 because of aggravating factors, including defendants use of a young girl to commit the offenses and the quantity of money stolen.

At the time the parties briefs were filed on the appeal, we were bound on this issue by People v. Black (2005) 35 Cal.4th 1238, 1244. However, the United States Supreme Court recently decided the issue in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856],^[2]finding that Californias determinate sentencing law violates a criminal defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. As a result, defendants sentence must be reconsidered in light of Cunningham.

DISPOSITION

The trial courts imposition of the upper term on count 1 is reversed, and we remand this matter for further proceedings not inconsistent with this opinion and Cunningham. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Ramirez

P.J.

We concur:

/s/ Richli

J.

/s/ King

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] Supplemental briefing concerning this new decision was allowed automatically pursuant to our Miscellaneous Order No. 020207. We received a supplemental letter brief from defense counsel reasserting arguments in earlier briefing and requesting a remand for resentencing. We did not receive any supplemental briefing from the People.