P. v. Smith

Filed 10/12/07 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Defendant appeals following her conviction by jury of drug offenses with a firearm enhancement. She contends the trial court committed two errors. First, it denied her a continuance to retain counsel to investigate a motion for a new trial. Second, it failed to give sufficient reasons for denying commitment to the California Rehabilitation Center (CRC). We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Based on a tip of narcotics trafficking, the police conducted surveillance of room 413 of the Holiday Inn Express in the City of Corning for several hours. An officer observed John Osborne, known to frequent narcotics locations, leave the room and meet someone in the parking lot. He attempted to put a safe in a backpack, but it would not fit. Instead, he put the items from the safe into a black bag and returned to room 413. After observing this suspicious activity, the police obtained a search warrant. They requested Tehama County SWAT, special weapons and tactics, make initial entry into room 413.

Inside the room officers found three people: defendant, Carrie Moon, and Buck Boswell. Defendant had a purse which contained her drivers license, keys and methamphetamine. Defendant told an officer the keys were to a van in the parking lot. In the van was a safe, to which defendant also had keys. The safe contained marijuana, methamphetamine and syringes.

Inside the motel room officers found evidence of sales of methamphetamine and marijuana. They found methamphetamine, marijuana, creatine powder, scales, baggies and packaging material. They also found a calculator and a composition book containing police frequencies and cryptic pay-owe sheets. There was considerable surveillance equipment, including a radio, police scanners, video cameras, a telephone linemans phone, cell phones and night vision goggles. There were two guns, ammunition and $4,453 in cash.

The total gross weight of the drugs found was 51.7 grams of methamphetamine and 157.6 grams of marijuana.

Counsel was appointed for defendant and represented her at trial. A jury convicted defendant of possession of methamphetamine for sale (Health & Saf. Code, 11378) and possession of marijuana for sale (Health & Saf. Code, 11359) and found true the allegation that she was vicariously armed (Pen. Code, 12022, subd. (a)(1)).

At the time scheduled for sentencing, defendants court-appointed counsel requested a continuance so he could file a statement in mitigation and address some issues in the probation report. The prosecutor opposed the continuance, noting the court had agreed to disregard the contested portions of the probation report and arguing a statement in mitigation would not help defendant given her criminal record. The trial court granted the continuance, but remanded defendant who had been out on bail.

Defendant filed a statement in mitigation, stressing her lack of knowledge or connection to the weapons, cameras and other property found in room 413. She requested probation or commitment to CRC.

The day before the next sentencing date, defendant filed a motion for substitution of counsel. The motion stated it was contingent upon the court granting a continuance of sentencing. Substitute counsel declared he needed additional time to review the case and research any necessary motions before sentencing.

The trial court denied the motion for a continuance, noting it had previously granted a continuance although the time for filing a statement in mitigation had lapsed. The court denied the request for probation, citing the nature and seriousness of the crime, defendants active participation, her lengthy

criminal record of thievery, her recent conviction for driving with a suspended license, and her prior unsatisfactory performance on probation. The court found the factors in aggravation -- prior convictions, unsatisfactory performance on probation, and the quantity of methamphetamine -- outweighed those in mitigation as there were none. The court imposed the upper term of three years on count one and one year for the firearm enhancement and imposed a concurrent two-year term on count two. The court denied the request for CRC based on defendants excessive criminality.

I. Denial of Continuance to Substitute Counsel

Defendant contends the trial court denied her the due process right to a fair trial when it denied the motion for a continuance to retain new counsel to investigate a motion for a new trial. Defendant contends she has a constitutional right to counsel of choice and there would have been no prejudice from a short continuance because she had been remanded to jail.

The right of a criminal defendant to counsel and to present a defense are among the most sacred and sensitive of our constitutional rights. [Citation.] While we have recognized competing values of substantial importance to trial courts, including the speedy determination of criminal charges, the state should keep to a necessary minimum its interference with the individuals desire to defend himself in whatever manner he deems best, using any legitimate means within his resources [citation]. A criminal defendants right to decide how to defend himself should be respected unless it will result in significant prejudice to the defendant or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. [Citation.] In other words, we demand of trial courts a resourceful diligence directed toward the protection of [the right to counsel] to the fullest extent consistent with effective judicial administration. [Citation.] (People v. Ortiz (1990) 51 Cal.3d 975, 982-983.)

The erroneous deprivation of the right to counsel of choice is structural error, reversible per se without a harmless error analysis. (United States v. Gonzalez-Lopez (2006) 548 U.S. ___ [165 L.Ed.2d 409, 420]; People v. Ortiz, supra, 51 Cal.3d 975, 988.) The right to counsel of choice, however, is not absolute; the trial court has discretion to deny a motion to substitute counsel if it is not timely. (People v. Ortiz, supra, at p. 983.) [T]he fair opportunity to secure counsel of choice provided by the Sixth Amendment is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, . . . (Id. at pp 983-984.)

Generally, the trial court has discretion whether to grant a continuance to permit a defendant to be represented by retained counsel. [Citation.] (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) 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. [Citation.] (People v. Courts (1985) 37 Cal.3d 784, 790-791.)

Trial courts should accommodate requests for continuances to obtain retained counsel to the fullest extent consistent with effective judicial administration. [Citation.] (People v. Courts, supra, 37 Cal.3d at p. 791.) In determining whether denial of a continuance is so arbitrary as to violate due process, courts look to the circumstances of each particular case, particularly the reasons presented to the trial court. (Ibid.)

In Courts, the court found error in denying the request for a continuance one week before trial so defendant could have retained counsel represent him against a murder charge where the record established defendant engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date. (People v. Courts, supra, 37 Cal.3d at p. 791, italics in original.) Defendant had contacted counsel two months before trial and spent the following weeks attempting to raise the necessary funds for a retainer. (Ibid.) Defendants attempt to conclude arrangements with counsel was delayed due to counsels vacation. (Id. at p. 792.) The record failed to show a continuance would have significantly inconvenienced the court or the parties. (Id. at p. 794.)

Here, unlike in Courts, supra, 37 Cal.3d 784, there was no showing of diligence in the attempt to retain counsel in the several weeks between conviction and sentencing. Nor did defendant present the court with compelling circumstances supporting the late request for a continuance. Rather, the day before the continued sentencing date, defendant sought a continuance so newly retained counsel could begin investigation of any grounds for a new trial motion. The untimeliness of the motion makes this case more similar to People v. Jeffers, supra, 188 Cal.App.3d 840, where the day of trial defendant sought a continuance to retain counsel after discovering his defense would be assigned to an appointed counsel whom defendant felt was unprepared. The lateness of the request, coupled with an absence of compelling reasons to support the request and a valid concern about inconvenience to witnesses, justified denial of the request. (Id. at pp. 850-851.)

The trial court had already continued sentencing once, over the prosecutors objection. At that time defendant did not indicate she sought retained counsel to represent her at sentencing. No reason was given for the late request for a second continuance. In these circumstances, the trial court could find defendant was unjustifiably dilatory in obtaining counsel or arbitrarily choosing to substitute counsel at the last minute (People v. Courts, supra, 37 Cal.3d at pp. 790-791), and thus did not abuse its discretion in denying the continuance.

II. Inadequate Reasons for Denying CRC Commitment

Defendant contends the trial court erred in failing to state specific reasons for denying her request for commitment to

CRC. She contends the courts terse dismissal of her request, by simply citing defendants excessive criminality, only parroted the statutory language and was inadequate.

Preliminarily, we note defendant forfeited the issue by not requesting the court state more specific reasons for denying her request for CRC evaluation or otherwise objecting to the courts reasons for rejecting the applicability of Welfare and Institutions Code section 3051. (People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about manner in which trial court exercises sentencing discretion and articulates supporting reasons cannot be raised for first time on appeal]; see also People v. Planavsky (1995) 40 Cal.App.4th 1300, 1311, 1312 [defendant, who did not request CRC evaluation, waived error of courts failure to have him evaluated].) If defendant was concerned that the court did not make a proper assessment regarding her fitness for CRC evaluation, she could have brought the matter to the courts attention and had it resolved.

We reject defendants contention on the merits. The record reveals the trial court adequately considered defendants fitness for commitment and made a proper qualitative judgment based on the current offense and defendants prior record.

If the trial court finds that a defendant is addicted or in danger of becoming addicted, it must suspend execution of sentence and order commitment proceedings unless it finds that the defendant is unsuitable for commitment due to a pattern of criminality. (Welf. & Inst. Code, 3051.) [E]xcessive criminality is the only consideration a sentencing court should look to for refusing to initiate CRC proceedings. (People v. Granado (1994) 22 Cal.App.4th 194, 200.) In determining a pattern of criminality, the trial court may consider a defendants prior convictions, his performance on probation or parole, and the circumstances of the present offense. (People v. Masters (2002) 96 Cal.App.4th 700, 704.)

When a trial court decides not to order the initiation of commitment proceedings, it must provide a statement of reasons. (Cal. Rules of Court, rule 4.406(b)(9); People v. Granado, supra, 22 Cal.App.4th 194, 201-202.) [A]t a minimum the required statement of reasons must include some specification of where the court was looking in making its finding of excessive criminality. . . . [W]as it looking at the defendants prior convictions, his prior performance on probation or parole, the nature and seriousness of the current offense, or some other factors evidencing criminality? [Citation.] The trial court may not parrot the statutory language when refusing to initiate commitment proceedings. [Citation.] (People v. Jeffery (2006) 142 Cal.App.4th 192, 196.)

Assuming that Jeffery, supra, 142 Cal.App.4th 192, and its predecessor, People v. Granado (1994) 22 Cal.App.4th were correctly decided, they do not carry the day for defendant here.

In determining whether the trial court articulated a proper basis for refusing CRC evaluation, we may consider statements by the trial court at sentencing. (See People v. McGinnis (2001) 87 Cal.App.4th 592, 596.) For purposes of appellate review, the important point is not the words the trial court used, but whether the record specifies where the trial court was looking in making its finding. (People v. Masters, supra, 96 Cal.App.4th 700, 706.)

While the trial court cited only defendants excessive criminality in denying commitment, the trial court had just denied probation on the basis that defendant actively participated in a serious and sophisticated criminal enterprise involving weapons and considerable surveillance equipment, had a lengthy criminal history involving thievery, had a recent conviction in 2001 for driving on a suspended or revoked license, and had performed unsatisfactorily on misdemeanor and felony probation. The record thus indicated the trial court was looking to all available factors -- the current offense, defendants prior record and her performance on probation -- in determining she was unsuitable for commitment. The high degree of sophistication of the current offense, with multiple weapons and surveillance equipment, and the provisions of the probation report detailing defendants eight convictions, five for theft offenses, over more than a decade amply support the trial courts assessment.

A trial court's preliminary determination under section 3051 of a defendant's fitness for rehabilitative treatment necessarily involves an assessment, based upon the defendants record and probation report, whether the defendants main problem is drug abuse or a criminal orientation as reflected in a pattern of criminality. Because this is inherently a qualitative judgment on the available information, the statute invests the court with a broad discretion which will not be disturbed on appeal in the absence of abuse. [Citations.] (People v. Cruz (1990) 217 Cal.App.3d 413, 421.) The trial court performed this assessment and we find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SIMS , Acting P.J.

NICHOLSON , J.

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