P. v. Shepard

Filed 3/9/07 P. v. Shepard CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

----

A jury convicted defendant Joseph Earl Shepard of committing sexual offenses against V. and B., two girls under 14 years of age. On appeal, defendant argues the court abused its discretion by denying his motions to continue and to substitute retained counsel for his appointed counsel. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Facts Related to the Offenses

Count I

Count I arose from an incident that occurred on September 29, 2001, at the Red Bluff residence of defendants mother-in-law, who shared her home with defendant and his wife. After an evening of bowling, defendant was left to babysit his son and daughter and the two daughters of his wifes friend, while his wife and her friend went out for drinks.

Defendant directed his children to put on their pajamas and go to bed. Defendant invited the younger of the other two girls, six-year-old V., to join him on the sofa, and sent her older sister to his bedroom. Defendant laid sideways on the sofa and positioned V. in front of him. As V. pretended to sleep, defendant put his hand underneath her shorts, squeezed [her] bottom, and humped her by repeatedly moving his pelvis against her buttocks. Defendant stopped when V. pretended to wake up. Defendant permitted V. to join her sister in defendants bedroom, where she began crying. V.s 10-year-old sister corroborated V.s account in part, testifying that V. did not go to sleep upon entering the bedroom, but stared out of the window and cried.

In defense of this charge, defense counsel was able to adduce evidence that V. may have waited up to 30 months before reporting the incident to her mother; V. continued to visit B. after the incident, even though defendant was present; and there were factual discrepancies between the accounts V. and her sister gave an investigating detective. In addition, defendant testified that he had sexual intercourse with V.s mother on several occasions; V.s mother and his then-wife had a relationship, and frequently went drinking and dancing together.

Defendant was convicted of one count of committing a lewd and lascivious act upon a child under the age of 14 years. (Pen. Code,  288, subd. (a).)^[1]

Count II

Defendant also sexually molested B., a young girl who occasionally stayed at his mother-in-laws residence.B., who was nine years old at the time of trial, testified that defendant had sexual intercourse with her on multiple occasions when she was five, six, and seven years old. All but one of the sexual assaults followed the same pattern. With B. lying on her back in bed, defendant would lower her panties, pull his erect penis through the hole in his boxer underwear, insert it into her vagina, move up and down, and ejaculate. B. testified defendants penis went about halfway into her vagina, to a depth of about two inches. Defendant told B.: This is our little secret.

The one atypical incident occurred while defendant was giving B. a ride in his car, and B.s brother was asleep in the backseat. Defendant pulled his erect penis from his pants, put B.s hand on it, and made her stroke it.

Sandra Relyea, a pediatric physician assistant, examined B. in May 2003. Relyea testified that B.s hymen was nearly absent, a condition that was consistent with repeated internal vaginal trauma, as would occur as a result of multiple acts of sexual intercourse. Relyea noted that she observed no external vaginal injuries, but she did not deem this significant, since external vaginal injuries heal rapidly, the sexual assaults occurred long before the examination, and an adult penis could have penetrated B.s vagina without causing any exterior damage.

In defense of count II, defense counsel elicited testimony that B. was not afraid to return to the residence when defendant was present after the molestations commenced; defendants mother-in-law noticed nothing unusual when she bathed B., and B. never complained to her; B. did not tell her mother about the molestations until her mother asked if defendant had ever done anything bad; B.s mother questioned B. only after she was informed of the alleged molestation of V.; and defendant reported that B.s mother had committed welfare fraud, which led to a misdemeanor conviction.

The jury convicted defendant of continuous sexual abuse of a minor. ( 288.5.)^[2]

Facts Related to the Motion to Continue Trial and the Motion to Substitute Retained Counsel for Appointed Counsel

At the arraignment hearing held on September 8, 2003, Dane Cameron appeared for defendant, who entered pleas of not guilty to all charges.

On October 6, 2003, the court set a trial date of November 12, 2003.

On October 14, 2003, defendant moved to continue the trial because two of his expert witnesses were unavailable during the week set for trial. The People objected based on the negative effects of delay on the minor victims, as well as the statutory requirement that trial be commenced within 30 days of arraignment in cases where the victim is a minor.^[3] ( 1048, subd. (b).) The court continued trial until February 18, 2004,^[4]after a paralegal in Camerons employ filed a declaration recounting his conversation with one of the expert witnesses, Dr. Robert Kessler, a Professor of Urology at the Stanford University Medical Center. According to the paralegal, Dr. Kessler had reached a tentative conclusion that defendants abnormally large penis would have caused significantly more damage to B.s vaginal area than Relyea had observed.

On February 18, defendant made his second motion to continue trial, based on the recent disclosure of new evidence and the need for further investigation of existing leads.^[5] Over the Peoples objection, the court postponed the trial a second time, and set a trial setting hearing for April 2.

At the April 2 hearing, Cameron withdrew as defendants attorney, and defendant filed a declaration of indigency and requested that the court appoint counsel to represent him temporarily, until he was able to raise the funds needed to retain an attorney. The court continued the trial-setting conference until April 23, and thereafter appointed Thomas Hilligan to represent defendant.

At the April 23 hearing, the court denied defendants request for a continuance to retain Michael Sharpe, and set a trial date of July 14.

On July 1, defendant filed his third motion to continue the trial because Hilligan was unprepared for trial. Hilligan explained that he had let defendant retain the criminal file based on defendants representations that he would be utilizing the proceeds of an imminent real estate loan to retain either Sharpe or Cameron to represent him. Commencing June 1 and continuing throughout the month, Hilligan told defendant he needed the file, but defendant did not give it to Hilligan until July 1. Based on his review of the file that day, Hilligan filed a declaration in which he stated: It is clear to me beyond question that, even if I remain as defendants counsel, there is not sufficient time remaining prior to the scheduled trial date for me to fully review them and take [the] appropriate action concerning their contents. If that action includes the issuance of subpoenas to witnesses, in all probability it will not occur. The result will be, regardless of fault, defendant likely will not receive []either the benefit of an effective defense or a fair trial.^[6]

At a hearing held July 7, the court denied the motion to continue because defendant knew Hilligan needed the file yet failed to provide it. Observing that it looks to this Court as if Mr. Shepard is manipulating the process and managing to delay proceedings for months at a time[,] and that [t]he process should not and cannot be manipulated in that way, the court denied the motion to continue.

Five days later, and only two days before trial, Hilligan informed the court that he had a conflict of interest, and requested permission to withdraw as defendants attorney. The court granted the request, appointed Diane Martin-Logan to represent defendant, and continued the trial until September 15, with a trial readiness conference set for August 16.

At the August 16 conference, defendant again requested a continuance because he was attempting to retain counsel. The court denied the motion and confirmed the trial date of September 15.

On September 9, defendant filed a notice that Adam Ryan was substituting for Martin-Logan.

On September 13, the court issued an order stating that the court would defer approval of defendants proposed substitution of attorney pending a hearing, which the court set for the following day.

On September 13 as well, Ryan filed a motion to continue the trial. According to Ryans declaration, he received defendants file on September 9, the day he was retained. Ryan stated that Martin-Logan had not issued subpoenas to any of the 34 potential witnesses Cameron had disclosed to the prosecutor in February, telling Ryan she planned to call only local witnesses. Ryan indicated that he intended to rely on a defense that defendant was not the perpetrator because defendants unusually large penis would have caused more external trauma to B.s vagina than Relyea had observed. Ryan attached Dr. Kesslers one-page report expressing this opinion. Ryan did not state that he intended to call Dr. Kessler as a witness. Instead, Ryan intended to contact the other defense medical expert, Dr. Lisa Benaron, who would be able to testify concerning Dr. Kesslers report and her own findings. Although Ryan had not spoken with Dr. Benaron or seen any report from her, he anticipated her testimony would be consistent with Dr. Kesslers report. Based on his preliminary review of more than 1,200 pages of investigative reports, Ryan concluded that a 30-day continuance was needed to confer with defendant and prior counsel, and issue subpoenas to witnesses.

At the hearing held on September 14, Martin-Logan stated that she was ready to proceed to trial as scheduled. Ryan said that he was not sure he agreed with Martin-Logans representation of defendant, that he was ready to go to trial, although he thought there were good grounds for a continuance.

The court stated, that the matter was being manipulated by the attempts to retain counsel in order to delay the proceedings. The court indicated that, given the representation of Ms. Martin that she is ready to proceed and ready to try the case, and the representation of Mr. Ryan that he is not for whatever reason, the Court is not going to grant the motion to continue.

Defendant stated that he wanted Ryan to represent him because Martin-Logan had talked to him for only five minutes in the month since her appointment,^[7]she hasnt subpoenaed the people that I think are going to be a big help in this matter, and she had not used her full potential . . . to represent me in the right way.

Martin-Logan stated that she would not respond in open court, but if defendant made a Marsden^[8]motion, I would be heard.

The court denied the proposed substitution of Ryan, stating, This request comes very late in the game. It comes after the defendant has had substantial notice that this case was going to trial. Continuances have been denied repeatedly. The defendant has delayed hiring counsel until this late [date]. We have the type of case involving victims where it should have been tried frankly long ago. The defendant has caused the matter to be delayed substantially. [] I have an attorney who is competent and ready to proceed to trial. I have an attorney who, for understandable reasons, is not ready to proceed to trial. There may be some difference of opinion regarding trial strategy between the defendant, between his current attorney and Mr. Ryan. But ultimately the court governs whether a substitution would be allowed. [] It would be a substantial impairment upon the administration of justice if this case was continued further. And given the indication by Mr. Ryan that he is not ready to proceed and Ms. Martin that she is, the request for substitution is denied.

The following day, prior to the commencement of trial, defendant made a Marsden motion to replace Martin-Logan because she had failed to communicate with him consistently, investigate adequately, or use Dr. Kesslers report. At the hearing, Martin-Logan stated that defendant had not scheduled any appointments, and missed two that she had scheduled. Martin-Logan stated she had subpoenaed numerous witnesses, and had talked to Dr. Kessler, but decided against calling him because his testimony would be inflammatory, since jurors know that when little girls are molested, there is hardly, if ever, full penetration by an adult male . . . [and] any juror would know that, common sense, that were a little girl to have full penetration with a male penis, there obviously would be a lot more damage. Martin-Logan also expressed concern that Dr. Kessler was subject to impeachment, since she discovered in defendants file a letter Cameron had written to Dr. Kessler that directed Dr. Kessler to write a letter verbatim as to what Mr. Camerons letter said[, and] [i]n reviewing the letter from Dr. Kessler, it appears that Dr. Kessler did just that.

Martin-Logan added that she had subpoenaed Dr. Benaron, who could testify concerning B.s vaginal injuries. Martin-Logan subsequently decided not to call Dr. Benaron as a witness. At an in camera hearing, Martin-Logan explained: When I questioned her about the size of my clients penis, she laughed, and said that obviously he wouldnt put it in all the way; that there was penetration. She believed it to be a penis. She said she would be a horrible witness for the defense. She said she thought not only was the hymen rolled, but that it was basically fragmented and almost nonexistent, and she said that that would be consistent with repeated penetration.

DISCUSSION

Defendant argues: The trial court abused its discretion by denying [defendants] substitution of attorney and continuance of [defendants] trial date to allow his newly-retained counsel to subpoena necessary witnesses, and confer with an investigator who had done substantial work on this case. The motions for substitution and for continuance were made for good cause, the motions were not dilatory, and [defendant] did not wait until the time of trial to substitute counsel.^[9] These contentions are meritless.

I

The Motion to Continue

Preliminarily, we note that the trial court had before it two separate motions, a motion to substitute retained counsel for appointed counsel and a motion to continue the trial date to permit newly retained counsel to prepare for trial. The record reflects that the courts decision whether or not to grant the motion to substitute counsel was based on whether or not Ryan, the newly retained counsel, was prepared to go to trial without a continuance on September 15. Thus, the court first heard, considered and then denied the motion to continue and then did the same as to the motion to substitute counsel. We discuss the motions in the same order as the trial court.

A criminal defendant must show good cause to obtain a continuance of trial ( 1050, subd. (e)), whether the request is based on the need for further investigation, to secure the attendance of a witness, or to substitute counsel. (People v. Sakarias (2000) 22Cal.4th 596, 647 [investigation]; People v. Roybal (1998) 19 Cal.4th 481, 504 [witnesses]; (People v. Smithey (1999) 20 Cal.4th 936, 1011 [substitute counsel].) We review an order denying a motion to continue for abuse of discretion, whether the motion was premised on the need for further investigation, to secure the attendance of a witness, or to substitute counsel. (People v. Sakarias, supra, at p. 646.) In making that assessment, we look to the circumstances of each case, paying particular attention to the reasons presented to the trial court at the time the request was denied. (People v. Courts (1985) 37 Cal.3d 784, 791.)

A

Continuance for Further Investigation

Defendants motion to continue was premised, in part, on Ryans need to consult defendant, and defendants former counsel and Maloney (Camerons investigator), to review the extensive documentation generated during Maloneys investigation.

When a motion to continue is based on the need to conduct further investigation, the court should consider the diligence of defendant and counsel (People v. Grant (1988) 45 Cal.3d 829, 844), the benefit that the moving party anticipates, the likelihood that such benefit will result, the burden on other witnesses, jurors and the court, and whether granting the motion will accomplish or defeat substantial justice. (People v. Barnett (1998) 17 Cal.4th 1044, 1125-1126.)

Maloneys investigative materials were generated no later than early February 2004, when Cameron relied on them in part to obtain defendants second continuance of trial. Ryans motion tried to convey the impression that the materials were an untapped source of potent exculpatory testimony but, aside from mentioning them once, at the conclusion of the motion to continue and a second time in his declaration, defendant made no effort to analyze whether the witnesses identified in Maloneys investigative materials could provide relevant, admissible evidence that could not be established by other witnesses. There was no attempt to explain what efforts had been made to explore these leads in the eight months that had passed since the second motion to continue was granted. Ryan implied that Martin-Logan was to blame, but she had represented defendant for only two of the eight months. Cameron, whose investigator discovered the leads, represented defendant for six weeks after the second continuance. From that fact the court could infer, in the absence of contrary evidence, that the investigation had continued and that none of the leads proved fruitful. Even after Cameron withdrew, defendant remained free on bail and capable of conducting his own investigation. In fact, most of the potential witnesses identified in Maloneys report appeared to have been identified by defendant.

Based on his preliminary review of more than 1,200 pages of reports, Ryan requested only a 30-day continuance. It was not unreasonable however, for the court to infer that the investigation he proposed would in all likelihood not be completed within that time, let alone completed and incorporated into a defense case that would be ready to go to trial. Although Ryan had affixed a 30-day label to the continuance, the court could reasonably conclude this was understated and, in light of the substantial delay to date, further requests to continue would be inevitable. The trial court acted well within its discretion by denying a motion to continue that was essentially open-ended and unsupported by a showing of what relevant mitigating evidence would be produced. (People v. Jenkins (2000) 22 Cal.4th 900, 1038, citing People v. Beeler (1995)9 Cal.4th 953, 1003-1004.)

In any event, many of the potential witnesses Maloney identified testified at trial and were cross-examined by Martin-Logan, who attempted to establish why the parents of the victims would want to testify falsely. For example, defendant testified that he had sexual relations with the mothers of two of the victims, and reported B.s mother for welfare fraud. Martin-Logan attempted to establish that V.s mother and defendants then-wife were close friends and possibly lovers. Martin-Logan established that V. continued to visit B. in defendants presence after defendant had molested V. Martin-Logan also elicited testimony that B. did not complain to her mother or defendants mother-in-law about defendants conduct.

The court did not abuse its discretion by denying a continuance to conduct further investigation, and defendant suffered no prejudice as a result.

B

Continuance to Subpoena Witnesses

We reach the same conclusion with respect to the denial of a continuance to subpoena the witnesses whom Cameron had identified and Martin-Logan allegedly had failed to subpoena.

Where a defendant seeks a continuance to secure the attendance of a witness, he must establish that he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. (People v. Howard (1992)1 Cal.4th 1132, 1171.)

As the trial court pointed out, one of the premises of defendants argument for the continuance -- that key witnesses would not testify because they had not been subpoenaed -- was speculative, since Martin-Logan had announced ready for trial and had presumably made or would make arrangements to secure the attendance of witnesses.

The only witness discussed in any detail was Dr. Benaron, whom Ryan had not even contacted. Ryan made a prima facie showing that Dr. Benarons anticipated testimony was material and would not necessarily be established through other witnesses. However, as the trial court informed defendant, the choice of witnesses was a tactical decision left to the defense counsels informed judgment. And as Martin-Logan expressed at the subsequent Marsden hearing (and the trial court reasonably inferred in ruling on defendants motion to continue), a defense premised on penis size would be unpersuasive to an average juror and would likely be inflammatory.

The trial court acted well within its discretion when it declined to continue the trial to subpoena witnesses.

C

Continuance to Allow Substitute Counsel to Prepare for Trial

The final basis for the request for a continuance was Ryans need to confer with defendant, defendants former attorneys, and Maloney. In denying the motion, the principal reason the court gave was defendants delay in retaining Ryan. Defendant argues the courts findings are not supported by the record since the previous continuances were based on matters outside of his control and he diligently attempted to retain counsel.

Although courts should make all reasonable efforts to allow a defendant to choose his own counsel, if he has the means (People v. Crovedi (1966) 65 Cal.2d 199, 207), a defendant seeking a continuance must give reasons for the delay of proceedings and must show that he has not been dilatory in making such a request. (People v. Strozier (1993) 20 Cal.App.4th 55, 60.)

Even if we assume that the first continuance (in October 2003, to secure the attendance of Dr. Kessler), and the second continuance (in February 2004, to evaluate the new disclosures by B., and conduct further investigation), were based on matters outside defendants control, once defendant declared indigency on April 2, he was solely responsible for the delay. Over the ensuing five months, defendants efforts to obtain funds and retain counsel were described in vague terms. Defendant took his file from Hilligan in June 2004, and did not return it until there was inadequate time to prepare for trial. While defendant claims he is not responsible for the continuance in July 2004 because it was premised on a conflict of interest claimed by Hilligan, he overlooks that the court had denied his prior motion to continue because defendant was responsible for the delay in returning his file to Hilligan. It is inferable that Hilligan would have discovered the conflict earlier had defendant timely returned the file to him.

The trial court also correctly concluded that the final motion to continue, which also was based on grounds ostensibly outside of the defendants control, was untimely and intended to delay trial. Most significantly, defendant failed to explain why he delayed getting his file to Ryan until the day he retained him. Considering that the Hilligan declaration put defendant on notice that two weeks was plainly insufficient to prepare for trial, the court reasonably could find that defendant intended to delay trial by delivering his file to Ryan less than a week before the scheduled trial date.

II

Motion to Substitute Retained Counsel for Court-Appointed Counsel

Having denied the motion to continue, the court denied the proposed substitution of attorneys because it was implicitly conditioned on a continuance. The court also determined that allowing Ryan to represent defendant without a continuance would prejudice the defense.

Although a nonindigent defendants right to counsel includes the right to retain or discharge a particular attorney (including one appointed by the court while the defendant is indigent) (People v. Ortiz (1990) 51 Cal.3d 975, 983), that right must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case. [Citation.] (People v. Courts, supra, 37 Cal.3d 784, 790.) The trial court, in its discretion, may deny such a motion if discharge will result in significant prejudice to the defendant [citation], or if it is not timely, i.e., if it will result in disruption of the orderly processes of justice [citations]. (People v. Ortiz, supra, at p. 983; see Ungar v. Sarafite (1964) 376 U.S. 575, 589 [11 L.Ed.2d 921] [decision to grant or deny a continuance to retain different counsel is discretionary]; see People v. Jones (1998) 17 Cal.4th 279, 318.)

Initially, we reject the suggestion that the court was bound to accept Ryans representation that he was prepared to proceed to trial without a continuance. Ryans statement proved no more than he was ready to proceed, not that he was ready to proceed competently. In his declaration filed a day before the hearing, Ryan concluded that a 30-day continuance was needed. The motion to continue itself contradicted Ryans claim of being ready to proceed, since it was based on Ryans need to familiarize himself with the case. The motion, combined with Ryans statement at the hearing that he was ready to go to trial was conflicting and equivocal. The court was correct in rejecting Ryans trial readiness representation.

In an attempt to circumvent these conclusions, defendant argues that, on the record before the trial court, Ryan was no less prepared than Martin-Logan, a situation that removed from consideration Ryans lack of preparation, and magnified the significance of defendants preference for Ryan. Considering that this and the other factors were neutral or supportive of a substitution of attorneys, the order denying the motion to substitute counsel was nothing less than an arbitrary denial of his right to counsel of choice.

Contrary to defendants view, the court was not obliged to infer that Ryan was no less prepared for trial than was Martin-Logan. The court appointed Martin-Logan on July 12, and she announced at the September 14 hearing that she was ready to try the case as scheduled. From these facts alone, the court could reasonably infer that Martin-Logan had done all of the things one would expect from a competent criminal defense trial attorney, that would include, at a minimum, meeting the defendant, researching the facts and law, devising a trial strategy that serves the defendants best interests, collecting physical evidence, and marshalling witnesses, either by relying on prosecution witnesses, issuing subpoenas, or making agreements with friendly witnesses. The court, therefore, properly concluded that permitting Ryan to substitute for Martin-Logan would require a continuance in order for Ryan to represent defendant competently, while Martin-Logan could provide effective representation without a continuance. The trial court has the discretion to deny the defendants motion to discharge his attorney if will result in significant prejudice to the defendant. (Ortiz, supra, 51 Cal.3d at p. 983.) The court reasonably concluded that allowing the substitution of Ryan would be to defendants detriment in light of Ryans lack of preparation.

The trial courts determination that a further continuance would substantially interfere with the administration of justice also finds ample support in the record. Section 1048, subdivision (b) specifies that trial shall be commenced within 30 days after arraignment, in cases in which the victim is a minor. Here, defendant managed to delay the trial a full year following his arraignment, and for several months after defendant became solely responsible for the delay.

The record supports the courts determination that Ryan was not ready to proceed with trial and that permitting the substitution without a continuance would cause significant prejudice to defendant. There was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND, P.J.

ROBIE , J.

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^[1] Hereafter, undesignated statutory references are to the Penal Code.

^[2] The jury acquitted defendant of count III, which alleged defendant committed a lewd and lascivious act upon K., a girl who was eight years old at the time of the alleged offense. K. testified that while she and B. were wrestling with defendant, he put his hand on her chest and between her legs. K. testified that defendant touched B. in the same manner. K. did not feel right being touched on those parts of her body. Defense counsel elicited acknowledgment from K. that they were all laughing and having fun while wrestling. Counsel also established that defendant had sexual intercourse with K.s mother on one occasion.

^[3] Attached to the opposition papers was a letter V.s mother wrote to the court. The letter stated that V. was apprehensive and under an enormous amount of stress waiting for the day she would testify. V.s mother stated that the defense is victimizing her once again. V.s mother stated that defendant had many chances to obtain counsel and prepare his defense, unlike the parents, who had no time to prepare for the ordeal defendant put upon us. V.s mother asked the court to alleviate the ongoing stalling that the defense is becoming so adept at using.

^[4] Subsequent events in this factual summary occurred in 2004 unless otherwise noted.

^[5] The new evidence consisted of a one-page report prepared on February 11, by Patricia Jones, MS, MFT, who reported that B., during a counseling session held on January 20, disclosed that defendant had committed more than 30 acts of sexual intercourse and more than 20 acts of sodomy. Cameron stated he needed additional time to investigate B.s disclosures, which not only greatly increased the number of acts of sexual intercourse involving B., but mentioned anal intercourse for the first time.

Cameron also declared that his investigator, Patrick Maloney, had recently provided him with over 1,200 pages of reports and attached documentation, which contained important evidentiary leads concerning another suspect and possible motives for some of the potential witnesses, to punish defendant.

^[6] We will refer to these statements as the Hilligan declaration.

^[7] Martin-Logan actually was appointed two months earlier, on July 12.

^[8]People v. Marsden (1970) 2 Cal.3d 118.

^[9] Although defendants opening brief makes this argument under one heading, he actually challenges two separate orders, consisting of the denial of his motion to continue trial and the denial of his motion to substitute retained counsel for his appointed counsel. While there is some overlap in the motion and proposed substitution, they were distinct requests, and the trial court treated them separately. We will do the same.