Filed 8/10/17 P. v. Watenpaugh 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN EDDY WATENPAUGH,

Defendant and Appellant.
C080566

(Super. Ct. No. 14F5668)



Following a jury trial, defendant Ryan Eddy Watenpaugh was convicted of two counts of infliction of corporal injury on a cohabitant, two counts of false imprisonment by violence, one count of cruelty to animals, one count of stalking, and one count of possession of an assault weapon. On the date set for sentencing, defendant asked the trial court to relieve his retained counsel and appoint a public defender. Following a closed hearing, the trial court denied the request. The trial court then sentenced defendant to an aggregate term of seven years in state prison.
Defendant contends the trial court committed reversible error by denying his posttrial request to discharge retained counsel. We agree. Accordingly, we will affirm defendant’s conviction but vacate the sentence and remand for further proceedings once defendant has been given an opportunity to substitute new counsel.
I. BACKGROUND
Defendant and victim R.S. entered into a romantic relationship in June or July 2013 that lasted, off and on, for approximately one year. Between May and August 2014, R.S. experienced several episodes of domestic violence at defendant’s hands.
In August 2014, defendant appeared at R.S.’s townhouse and refused to leave. He punched her in the face and attempted to land other blows, but R.S. deflected them. He chased R.S. as she tried to flee, and “tackled” her to the ground. Following a struggle, R.S. managed to escape. She ran to a nearby neighborhood and telephoned a friend for help. After a short time, R.S. walked back to her townhouse. As she approached, she saw defendant drive away. Upon her return, she discovered that her small dog, Bear, was missing. She sent defendant a text inquiring about Bear. Defendant responded that he hoped the dog was dying in a ditch.
R.S. continued to communicate with defendant over the next week or so. Defendant expressed remorse about his behavior towards R.S. He denied having anything to do with Bear’s disappearance, and even helped R.S. look for the missing dog. At one point, defendant offered to come to R.S.’s house to cook her dinner and she agreed. He brought a dish he identified as pulled pork.
In early September 2014, R.S. went to a bar with a group of friends. Defendant appeared uninvited and started a fight with a man in the group. R.S. left the bar and went home. Defendant sent her numerous abusive texts that evening. R.S. decided to stay at a friend’s house that evening because she was “nervous” that defendant would come to her house. When she returned home the next morning, she found a note from defendant on her bed.
Defendant continued to text R.S. over the next several days. Among other things, defendant led R.S. to believe that on the evening he cooked for her, she had unknowingly eaten her own dog.
Several days later, R.S. awoke to defendant ringing her doorbell in the middle of the night. R.S. looked out the window and saw defendant unloading several items onto her front porch. R.S. waited until defendant left and then opened the door. She found a trash bag and other personal belongings. Inside the trash bag was a Ziplock bag containing two of Bear’s severed paws. The paws were accompanied by a note that said, “Burn in hell.” R.S. called the police. When officers executed a search warrant on defendant’s home, they found a semiautomatic rifle similar to an AK-47 and six boxes of ammunition.
On November 6, 2014, the Shasta County District Attorney filed an information charging defendant with two counts of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)—counts 1 and 4), two counts of false imprisonment by violence (§ 236—counts 2 and 5), one count of residential burglary (§ 459—count 3), one count of cruelty to animals (§ 597, subd. (a)—count 6), one count of stalking (§ 646.9, subd. (a)—count 7), one count of importing an assault weapon (§ 30600, subd. (a)—count 8), and one count of possession of an assault weapon (§ 30605, subd. (a)—count 9). Defendant was arraigned and pleaded not guilty to all charges.
On February 3, 2015, attorneys Eric Berg and Ryan Birss substituted into the case as defendant’s privately retained counsel. A jury was empaneled on July 15, 2015, and returned a verdict on August 28, 2015, following a 17-day trial that included nine days of testimony from 22 witnesses (including veterinary, forensic and firearms experts) and admission of more than 100 exhibits. The jury found defendant guilty of all counts charged except counts 3 and 8, which were dismissed on defendant’s motion. Defendant waived time and was remanded into custody pending sentencing.
On September 15, 2015, defendant was interviewed by the probation department in the presence of Birss. During the interview, defendant told the probation officer that he earns $175,000 to $180,000 a year in “residuals.” The probation report also indicates that defendant has engaged Berg’s law firm to pursue civil litigation against R.S. The probation report was filed on October 2, 2015.
Defendant appeared for sentencing on October 16, 2015. Prior to sentencing, Birss informed the trial court that defendant wanted a Marsden hearing. Birss added that, “He’s requesting a public defender be appointed until he can hire new counsel.” The trial court correctly observed that Marsden does not apply to privately retained counsel. (See People v. Maciel (2013) 57 Cal.4th 482, 512-513.) Nevertheless, the trial court cleared the court room and conducted a hearing outside of the presence of the prosecution. During the hearing, defendant explained that he understood his attorneys would be filing “a motion for mistrial appeal” and arranging for an independent review of his probation report. However, upon receiving a copy of the probation report the night before, defendant said, he realized that neither of these things had been done. Defendant also intimated that he had not been in contact with Berg or Birss for approximately 30 days.
The trial court noted that a request for transcripts had been filed on September 24, 2015, indicating that defendant intended to file a motion for a new trial based on alleged Brady violations (Brady v. Maryland (1963) 373 U.S. 83), prosecutorial misconduct, jury misconduct, insufficient evidence and judicial bias. The trial court explained that the court had denied the request because “there was no showing as to a basis for those motions other than just a bear [sic] assertion that the [d]efense wanted to bring those motions.” The trial court also explained that the court was disinclined to believe that defendant was indigent, in view of defendant’s representations regarding his annual income.
The trial court then asked Birss to address defendant’s concerns. Birss responded: “Well, two things. One, the reason I filed that declaration, I think what this all comes down to is [defendant] ran out of money and Mr. Berg didn’t want to work for free. And so I believe that a lot of these things that were promised didn’t happen because there wasn’t any financial support post the jury verdict. [¶] And I think that’s kind of the crux of this whole issue, and I believe that’s why nothing was done. And I believe that’s why [defendant] is frustrated and wishes to fire us, because we kind of stopped working once Mr. Berg—you know, there was still some little things I tried to do and tried to help [defendant] through the post, you know, jury trial. [¶] But that’s essentially what happened in regards to the motion for a new trial, investigating, speaking to the jury. This independent probation officer he was referring to is someone that our office has worked with in the past, but you have to pay for it. And so since there was no money in trust to pay for this gentleman, that’s why he never interviewed [defendant], never showed up, didn’t write a report, isn’t here. [¶] And I believe had—you know, I don’t know. I wasn’t there for the conversation between Mr. Berg and [defendant] and what was promised, but that’s kind of my understanding.”
A short time later, the following colloquy took place:

“THE COURT: Have you been doing any work on this case?

“[BIRSS]: Not really?

“THE COURT: Because you’re not getting paid?

“[BIRSS]: Mr. Berg ordered us to work on paying clients pretty much. I’ve done some work.”
Following a brief recess, Berg appeared and observed that defendant “has a right for any reason or no reason at all to terminate his current counsel.” (See People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) The trial court responded: “Except if it’s going to unnecessarily delay the proceedings and it’s going to create a lot of problems[,] which it would. This would require, you know, a whole different attorney getting up to speed on this case which would require them to review all the trial transcripts, the motions, the evidence. I mean, it would take a significant amount of time. And here we are on the day of sentencing and this request was made for the first time, so it’s untimely. I’m not inclined to grant such a request.”
The trial court continued: “Well, I think we should go forward with sentencing because I see no reason not to go forward at this point. You both, you and Mr. Birss, are well versed in the facts of this case. You’ve had this probation report since approximately October 2nd or so. And the law, you know, it’s been provided to you in a timely manner. There’s been a thorough review of the case by the Probation Department. They provided their recommendation. I just don’t see any reason not to go forward with sentencing now.”
Following further discussion, during which Berg urged the trial court to appoint a public defender, the trial court found that defendant’s request was untimely. Relying on Ortiz and People v. Lara (2001) 86 Cal.App.4th 139 (Lara), the trial court added that defendant’s request would “significantly interfere and disrupt the orderly process of justice.” The trial court concluded: “You know, to wait until the day of trial [sic] for [defendant] to bring this motion, I just don’t see any basis for granting a further continuance. . . . [¶] And I just think it’s totally inappropriate to now cause a substantial delay at this last minute, particularly since this case—the verdict came in August 28th after a long trial. The probation report was timely filed, everybody knew what the date of sentencing was. And, you know, there’s—I can’t foresee anything the [d]efense is going to provide different than what’s provided in the probation report that’s going to change anything that I do as far as sentencing. [¶] It’s just untimely. That’s the biggest issue, is to wait until now. I mean, we’ve been here waiting already for a couple of hours to go forward with this sentencing issue, and I think we just need to go forward with it.”
The trial court then opened the hearing and told the prosecutor that defendant’s request had been denied as untimely. Following further argument on sentencing, the trial court sentenced defendant to seven years in state prison. R.S. was not present for the sentencing hearing.
Defendant filed a timely notice of appeal.
II. DISCUSSION
Defendant contends the trial court erred in denying his request to discharge Berg and Birss. He adds that any delay in the proceedings would have been minimally disruptive and would have been outweighed by his Sixth Amendment right to counsel of his choice. We agree. “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.]” (Ortiz, supra, 51 Cal.3d at p. 982.) These rights include the right to discharge retained counsel at any time with or without cause. (Id. at p. 983.) The right to discharge a retained attorney with or without cause extends to post-conviction proceedings. (People v. Munoz (2006) 138 Cal.App.4th 860, 869 (Munoz).)
However, the right to discharge retained counsel is not absolute. (Ortiz, supra, 51 Cal.3d at p. 983; Munoz, supra,138 Cal.App.4th at p. 869.) A defendant’s right to counsel of his choice must be balanced against the state’s interest in the orderly administration of justice. (Ortiz, supra, at pp. 982-984; Lara, supra, 86 Cal.App.4th at p. 153 [the trial court “must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution”].) The “prospect of possibly impairing efficient judicial administration” must be sufficiently weighty “to overcome defendant’s interest in obtaining counsel of his choice.” (People v. Gzikowski (1982) 32 Cal.3d 580, 589.) Indeed, the disruption must be “unreasonable under the circumstances of the particular case.” (People v. Crovedi (1966) 65 Cal.2d 199, 208.)
The defendant bears the burden of demonstrating an abuse of discretion. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) However, “ ‘discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action.’ [Citations.] To exercise the power of judicial discretion [in ruling on a motion to relieve retained counsel], all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision.” (Lara, supra, 86 Cal.App.4th at p. 165.) Furthermore, “The trial court . . . must exercise its discretion reasonably: ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ [Citation.]” (Ortiz, supra, 51 Cal.3d at p. 984.)
The trial court denied defendant’s request to discharge retained counsel as untimely, finding that a continuance of the sentencing hearing would “significantly interfere and disrupt the orderly process of justice.” Although timeliness is a proper consideration in deciding whether to grant a request to discharge retained counsel, “[b]lanket generalizations about possible delay will not suffice.” (Munoz, supra, 138 Cal.App.4th at p. 870.) The trial court made no inquiry as to the length of the requested continuance, indicating that the court ruled on the motion without first ascertaining the material facts. (Lara, supra, 86 Cal.App.4th at p. 165.) Even assuming a reasonable continuance had been granted to allow defendant to retain new counsel, and an additional continuance to allow new counsel to come up to speed on the case and prepare a motion for a new trial, we cannot say that such continuances would significantly interfere with the orderly process of justice in the particular circumstances of this case.
Nothing in the record suggests defendant’s request to discharge retained counsel was dilatory, or that the case had been unduly delayed by prior continuances. To the contrary, the record reveals that less than a year elapsed between the commission of the last charged crime and the verdict. As in Munoz, “[t]he record is devoid of even a suggestion defendant had an interest in delay.” (Munoz, supra, 137 Cal.App.4th at p. 870.)
Nothing in the record suggests a continuance would significantly inconvenience the trial court or the parties. Although a request to discharge retained counsel during trial may entail “the practical difficulties of ‘assembling the witnesses, lawyers, and jurors at the same place at the same time’ ” (Ortiz, supra, 51 Cal.3d at p. 984), the logistical considerations involved in a request to continue a sentencing hearing are considerably different. (See Munoz, supra, 138 Cal.App.4th at p. 870; see also Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 701 [“Delay immediately prior to trial engenders a significant potential for disruption of court and witness scheduling. . . . [¶] Conversely, it is unlikely that a continuance after the verdict will substantially interfere with the court’s or the parties’ schedules”].) By the time of the request in this case, the jurors had been dismissed and the only potential witness, the victim, had declined to address the trial court with a victim impact statement. Defendant, for his part, had been remanded into custody, and would remain there for the length of any continuance. The requested continuance would have required the parties to reconvene before the trial court at some future date. But we cannot characterize the resulting inconvenience to the trial court and prosecutor as unreasonably disruptive, particularly in the absence of any indication that defendant previously abused the right to discharge retained counsel or otherwise engaged in delaying tactics. We therefore conclude that the requested continuance would have been minimally disruptive.
On the other side of the scale, the decision to deny the request meant that defendant was effectively deprived of meaningful representation during posttrial proceedings. (Ortiz, supra, 51 Cal.3d at p. 982; Lara, supra, 86 Cal.App.4th at p. 155.) We cannot say, on the basis of the present record, that the state’s interest in the orderly administration of justice was sufficiently weighty to overcome defendant’s right to representation by counsel of his choice (or indeed, any counsel) during posttrial proceedings. Under the particular circumstances of this case, in which defense counsel readily acknowledged having suspended their efforts on defendant’s behalf, the denial of defendant’s request to discharge retained counsel substantially impaired defendant’s Sixth Amendment right to counsel. The trial court abused its discretion in denying the request.
Denial of a defendant’s constitutional right to be represented by retained counsel of his or her choice is “structural error” requiring reversal without any showing of prejudice. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150 [“erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error” ’ ”]; Ortiz, supra, 51 Cal.3d at p. 988 [“Reversal is automatic . . . when a defendant has been deprived of his right to defend with counsel of his choice”].) Defendant is entitled to be represented by retained counsel in all posttrial proceedings, including a new sentencing hearing. (See Munoz, supra, 138 Cal.App.4th at p. 871 [“Once new counsel is appointed, the case shall proceed anew from the point defendant originally sought to discharge his attorney”].)









III. DISPOSITION
The conviction is affirmed. The trial court’s decision denying defendant’s request to discharge privately retained counsel is reversed, and the sentence imposed in the matter vacated. The matter is remanded for further proceedings not inconsistent with this opinion.



/S/

RENNER, J.



We concur:


/S/

ROBIE, Acting P. J.


/S/

MAURO, J.