Filed 5/31/07 P. v. Falls CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN FALLS, Defendant and Appellant. | F049627 (Super. Ct. No. F02676131-6) OPINION |
APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.
Kyle Gee, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
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On December 13, 2005, a jury found David Allen Falls (appellant) guilty of the April 2001 murder (Pen. Code, 187, subd. (a))[1]of Elmo Jackson. Appellant was also convicted of being a felon in possession of a handgun ( 12021.1), and an allegation that appellant personally discharged a firearm in the commission of the murder ( 12022.53, subd. (d)) was found true. In a bifurcated proceeding, the trial court found appellant had two prior serious felony convictions. Appellant, a third striker, was sentenced to 100 years to life.
On appeal, appellant contends only that the trial court erred in denying his December 6, 2005, motion for a continuance of trial. We disagree and affirm.
FACTS[2]
On April 11, 2001, 14-year-old D.W. saw appellant and Jackson, both of whom she had seen before around her West Fresno neighborhood, across the street. Appellant stood five feet away from Jackson, who was sitting on a crate on the sidewalk. While the two were talking, appellant whipped out a shotgun, fired at Jackson, said What are you going to do now, fool[,] got into a car, and drove away.
D.W.s brother, Christopher, was in the front yard when he heard loud talking across the street. He saw Jackson sitting and appellant with a shotgun. Christopher saw appellant point the gun and fire it at Jackson. He then saw appellant get into a car and drive away.
Rhonda Packard, who had known appellant for over 30 years and Jackson for nine or ten years, was visiting her sister when she saw appellant and Jackson argue. Appellant left, returned later in a car, and took out a gun. The two continued to argue, and Packard yelled at appellant: Dont shoot that boy. Packard then heard a loud noise and saw a big white cloud of smoke come out of [Jacksons] mouth.
Beverly Williams lived in the neighborhood, grew up with appellant, and knew Jackson. She heard the two argue. Appellant left and returned later. Williams was inside the house when she heard a shot. She went outside and saw appellant standing on the sidewalk and Jackson lying on the ground with smoke coming out of his mouth. Williams did not see a gun, but saw appellant leave in a vehicle. Williams called the police.
Police officer Brian Valles responded to the scene and questioned Jackson, who was lying on the ground next to a pool of blood. Blood was coming from Jacksons abdomen. Valles asked Jackson if he knew the person who shot him, but Jackson claimed not to. Valles testified that it was not unusual for victims of a west side crime to refuse to identify their attacker.
Jackson died three days after being shot.
DISCUSSION
Did the Trial Court Err in Denying Appellants Motion for a Continuance of Trial?
A. Procedural History
The lengthy procedural history in this case extends from April 2001 to December 2005. The felony complaint was filed in 2001, but appellant was not arrested until July 16, 2002. The trial court appointed the public defender to represent appellant and set a preliminary hearing for August 2, 2002. On July 23, 2002, however, the public defenders office declared a conflict, and Barker and Associates was appointed. Thereafter, the preliminary hearing was continued several times.
Appellant was bound over and then arraigned on the information on October 18, 2002. A trial date was set for April 21, 2003. At the confirmation hearing 11 days before trial was to begin, appellant filed a Marsden[3] motion, which was denied. Six days before trial was to begin, appellant argued and was granted a Faretta[4]motion, and trial was continued to July 14, 2003.
At trial confirmation on June 19, 2003, appellant requested another continuance. He explained that he had not yet received his file from Barker and Associates. Also, he had not been given timely access to the law library and had not yet been given an investigator. The motion for a continuance, however, was denied. Appellant made another request for a continuance on July 9, 2003, and it also was denied. On the date set for trial, no trial courts were available, and the trial date was trailed one day. The following day, when appellant renewed his motion for a continuance, it was granted, and trial was reset for November 10, 2003. Trial confirmation was set for November 6, 2003, and a hearing date of October 15, 2003, was set for a discovery motion.
On October 15, 2003, appellant requested a five-and-a-half-month continuance of trial, which was denied. The following day, appellant asked that he be relieved of his pro. per. status and to have counsel appointed. Barker and Associates was once again appointed to represent appellant, and his request for a continuance of trial granted until January 26, 2004.
But, in November, appellant made a request for a Marsden motion. On November 5, 2003, Barker and Associates attorney Scott Kinney appeared and informed the court (Judge Simpson) that appellant had filed a federal court lawsuit against Barker and Associates and had filed complaints with the California State Bar against three Barker and Associates attorneys. Kinney provided the court a copy of a United States District Court complaint file-stamped June 20, 2003. Appellant explained to the court that he had, indeed, filed a suit, through which he had sought two items of relief: that Barker and Associates turn over his file to him, and that Barker and Associates agree never to represent him again.
When the trial court suggested it might be appropriate to consider appointing the alternate defense office (ADO) to represent him, appellant objected. He complained of a shared ownership interest between Barker and Associates and ADO to where if there was a conflict with one it would most likely be a conflict with both . The court continued the Marsden motion. On November 14, 2003, without formally granting the motion, the court relieved Barker and Associates and appointed attorney Katherine Hart to represent appellant. Judge Simpson said, during the course of the hearing:
As youre aware because of comments that were made during a prior hearing or hearings leading up to todays hearing, the [ADO] is affiliated in some form or fashion, if only contractually, with the Barker and Associates Office. And because of your civil lawsuit and conflicts with the Barkers office, the [ADO], this Court has determined, probably would not represent you either. At least while they might, its probably not the best thing in terms of the appearance of conflict, whether theres one actually or not.
Trial remained set for January 26, 2004, but appellant asked for and was granted two continuances, first to June 7, 2004, and then to July 19, 2004. Four days before the July trial date, attorney Hart requested the trial date be vacated and a disposition hearing set for the end of July. The trial date was continued to January 10, 2005.
Four days before the January trial date, appellant again requested and was granted a continuance, and the case was set for June 13, 2005. Four days before the June trial date, attorney Hart asked to be relieved. The motion was denied, as was a motion for a continuance and a Faretta motion.
Attorney Hart renewed her motion to withdraw on June 13, 2005, the date set for trial. As reasons for her request, she cited her inability to work with [appellant] and to work with his sister, Beverly Brown, who has names of potential witnesses. According to Ms. Hart, Ms. Brown would not work with her and would not provide her with the names of the possible witnesses, and appellant deferred to his sister. The court again denied the motion to be relieved. Thereafter, appellant asked to file a Marsden motion, which was heard and denied, as was another Faretta motion.
On June 14, 2005, Ms. Hart filed a writ with this court, asking to be relieved as counsel for appellant. We issued a stay of appellants trial, and subsequently granted the writ.
On September 26, 2005, the trial court (Judge Orozco) appointed the ADO as counsel for appellant and relieved Ms. Hart. Appellant complained that ADO had not been assigned to his case before because Barker has part ownership in ADO. Judge Simpson, according to appellant, had declared a conflict with Barkers and Associates, Barker has part ownership in ADO. So ADO was a conflict also. Thats why [Ms. Hart] ended up [appointed to represent me]. Appellant explained he had filed a suit against Barker and Associates but acknowledged the suit was no longer pending. On the basis that the suit could no longer cause any conflict, the trial court (Judge Orozco) overruled appellants objection to the appointment of ADO, set a status conference for October 11, 2005, and set trial for December 5, 2005.
At the status conference on October 11, 2005, again before Judge Orozco, ADO attorney Jonathan Richter (who represented appellant later, at trial) announced that his office had reviewed discovery provided and determined it had no conflict of interest. ADO was ready to set a trial date, which Mr. Richter requested be late in January 2006. In attempting to take appellants continuing waiver of time, the court learned from appellant that he believed the appointment of ADO violated his rights, that he wanted to appeal that decision, and that he would neither acknowledge ADO as his counsel nor do anything to assist ADO in the task of representing him. Without a further time waiver, the court set the matter for trial on December 5, 2005, with trial confirmation on December 1, 2005.[5]
At the trial confirmation hearing on December 1, 2005, appellant requested a Marsden hearing, which was heard by Judge Fain, in the trial department. At the December 5, 2005, hearing on the motion, appellant argued that Barker and Associates had ownership of the ADO, and that appellant had filed an earlier lawsuit against Barker and Associates, creating a conflict. Appellants counsel explained that Barker and Associates and the ADO were paid through a common contract with the County of Fresno, but that they had completely separate offices, attorneys, secretarial staff, investigative staff, filing and computer systems. Following a two-day hearing, appellants Marsden motion was denied. Appellant then again asked that he be allowed to represent himself and said that he would need a six-month continuance. Both the continuance and appellants Faretta motion were denied.
Following a noon recess, appellants counsel asked for a continuance, stating that appellant was now willing to cooperate with me as appellant shared with me for the first time his version of events of what happened on the evening in question and provided me with a list of more than half a dozen witnesses who need to be called to support his version of the events. Defense counsel asked for a 60-day continuance to prepare. The prosecutor objected vigorously, stating that the four-year period that had passed had already made it difficult to hold the witnesses together, as their patience is gone. After additional argument from both counsel and appellant, the trial court stated that it needed to conduct a short in camera hearing to get more specificity in regard to the nature of the request and the time frame in regard to the witnesses and locating of these witnesses as being provided.
At the in camera hearing, out of the presence of the prosecutor, the trial court asked defense counsel about the potential witnesses appellant had revealed. According to defense counsel, appellant asserted that there was another person, Danny, a gang member, who was the actual shooter. According to defense counsel, Rhonda Packard, the only major witness who would conceivably testify that she saw appellant shoot the victim, was related to Danny through marriage, which is why she would not want to identify Danny as the shooter. Defense counsel also mentioned that Ms. Packard had an extensive history of drinking he would like to investigate. Defense counsel informed the court that witnesses, including appellants niece Selma and his nephew Douglas, were reluctant to come forward for fear of gang retaliation and, in fact, had already been the victims of retaliation. Defense counsel stated that eyewitness Carter Anderson was currently in prison. Defense counsel also named eyewitness Karen Carter, whom he would need time to locate, but who had previously spoken to an investigator and described someone, a half breed, as the shooter.
Following the in camera hearing, with the prosecutor again present, the trial court stated it was concerned about both appellants right to effective representation, and the difficulty the prosecutor had experienced in retaining witnesses. The prosecutor predicted he would not have the witnesses he now had in 60 days, especially the witnesses living in the area where the crime occurred, which continued to experience significant gang and drug activity. According to the prosecutor, If I was in [the witnesses] shoes and every time I got a subpoena or every time a D.A. investigator showed up at my door, I had to worry whether somebody was going to retaliate against me, I wont cooperate anymore.
After extensive comment on the difficulty of the decision, the trial court denied the motion to continue.
A jury was thereafter empanelled to hear the case, and, on December 13, 2005, appellant was found guilty as charged.
B. Relevant Law and Applicability Here
Appellant asserts the trial court abused its discretion and violated his constitutional rights to effective assistance of counsel and to present a defense by refusing to grant a continuance of the trial. There was no abuse of discretion in denying appellants request for a continuance.
Continuances shall be granted only upon a showing of good cause. ( 1050, subd. (e).) Such a showing requires, inter alia, that both the party and counsel have used due diligence in their preparations. (People v. Mickey (1991) 54 Cal.3d 612, 660; People v. Grant (1988) 45 Cal.3d 829, 844.) A trial court has broad discretion to determine whether good cause exists, although the court may not exercise its discretion in a manner that deprives the defendant or the defendants attorney of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) In deciding whether to grant or deny a continuance, the trial judge 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. [Citation.] (People v. Zapien (1993) 4 Cal.4th 929, 972.) In determining whether a denial [of a continuance] 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 (1998) 18 Cal.4th 894, 1013.) Denial of a continuance does not warrant reversal of a conviction in the absence of a showing of abuse of discretion and prejudice to the defendant. (People v. Justice (1963) 211 Cal.App.2d 660, 665; see also People v. Snow (2003) 30 Cal.4th 43, 70, 73.)
The appellant bears the burden [of] establish[ing] an abuse of judicial discretion . (People v. Beeler (1995) 9 Cal.4th 953, 1003.) Under this standard, appellant has failed to establish good cause for a continuance and, thus, failed to establish an abuse of discretion. First, appellant did not demonstrate that he had exercised due diligence in apprising counsel of the potential exculpatory defense witnesses for trial. When a continuance is sought to secure attendance of a witness, the defendant must establish that he had exercised due diligence to secure the witnesss attendance . [Citation.] (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Although appellant claims he was understandably reluctant to talk to his ADO counsel prior to trial because of his prior experience with Barker and Associates, he says nothing of his poor relationship and reluctance to share information with Ms. Hart, who represented him for over a year and a half. Before asking that she be relieved of her duties, Ms. Hart complained about appellants refusal to cooperate with her. Neither does appellant acknowledge the fact that two months elapsed between September 26, 2005, when Judge Orozco rejected the argument that the ADO had a conflict of interest precluding its representation of appellant, and December 6, 2005, when appellant finally decided to cooperate with his attorney. During that interim period, appellant not only failed to cooperate with his attorney but also, in his refusal to do so, failed to cooperate with the court.[6]
Second, when the reason for a continuance is to obtain the testimony of an absent witness, it is not an abuse of discretion to deny such a request in the absence of a showing that the facts to which the absent witness will testify cannot otherwise be proved (People v. Collins (1925) 195 Cal. 325, 333); that there is a reasonable probability that if the witnesss testimony were produced it would affect the result of the trial (Young v. Evans (1944) 62 Cal.App.2d 365, 373); that such testimony is not merely cumulative (ibid.; People v. Fountain (1915) 170 Cal. 460, 464); and that the testimony can be obtained within a reasonable time (People v. Collins, supra, at p. 333).
Here, defense counsel stated that he had a number of witnesses he wanted to contact: appellants niece and nephew Selma Palmer and Douglas Kendall, Carter Anderson, who was incarcerated at Wasco, and Karen Carter. He also wanted to further investigate prosecution witness Rhonda Packard, who was related to the possible real shooter and who was known to have a history of drinking.
As for witnesses Selma Palmer, Douglas Kendall, and Carter Anderson, defense counsel did not indicate that he would have been able to locate these witnesses even if given more time. Nor did he make any representation regarding the content of their testimony, other than to say Anderson was apparently an eyewitness to what happened, or that their testimony would have been favorable to appellant.
As for Rhonda Packard, defense counsel was able to thoroughly cross-examine her at trial. During his questioning of Packard, counsel asked her about a Danny Pea, who Packard stated was her nephew. When defense counsel asked if Pea was actually the shooter instead of appellant, a sidebar was requested by the prosecution. During the sidebar, the prosecution objected, stating that to specifically name Pea as the shooter at this point violated what he called the third-party culpability evidence rule. Defense counsel stated that he was working on securing Karen Carters presence, and that it would be her testimony that a half breed, which defense counsel stated would match Peas half Hispanic, half African-American description, was responsible for the shooting. The trial court sustained the prosecutions objection, but stated that, if Carter were called, Packard would be subject to recall. Subsequently it was learned, after a subpoena was issued, that the alleged eyewitness Carter, who had supposedly identified someone other than appellant as the shooter, was actually not present at the time of the shooting, but had been told by appellants sister to say she was.
The trial court appointed ADO counsel for appellant on September 26, 2005. At the status conference October 11, 2005, ADO counsel Jonathan Richter appeared and stated he was ready to set a trial date. Trial was originally set for December 5, 2005, because appellant would not waive time. Trial actually began December 7, 2005.
In People v. Davis (1954) 43 Cal.2d 661, 668, the defendant was arrested on April 28 and the preliminary hearing continued until May 19 due to counsels broken leg. The defendant pled not guilty on June 22 and trial was set for July 15. The defendant argued that the trial court erred when it denied his request for a continuance, claiming counsel was unable to adequately prepare for trial. The Davis court disagreed, stating:
In view of the above chronology, it cannot be said that the trial court abused its discretion in determining that counsels injury was not such as to deny defendant effective representation by counsel. Moreover, the period from June 22 to July 15 was not an unreasonably short length of time in which to prepare a defense. [Citations.] (Id. at pp. 668-669.)
Here, too, two full months was ample time within which to prepare for trial. On this record, it cannot be said that appellant carried his burden to establish that the denial of the continuance motion was an abuse of discretion or deprived him of effective assistance of counsel because counsel did not have adequate time to prepare a defense.
DISPOSITION
The judgment is affirmed.
DAWSON, J.
WE CONCUR:
_______________________________
HARRIS, Acting P.J.
_______________________________
CORNELL, J.
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[1]All further statutory references are to the Penal Code unless otherwise stated.
[2]The recitation of facts is brief because they are not at issue here.
[3]People v. Marsden (1970) 2 Cal.3d 118.
[4]Faretta v. California (1975) 422 U.S. 806.
[5]Appellant suggests the trial court punished him for asserting his rights by setting the trial for December 5, 2005, when it had been willing earlier to set the matter for January 2006. It is clear from a reading of the transcript, however, that the date set was selected because of concerns over the existence of a waiver of time.
[6]We note in this regard that appellant has made no assertion here that the trial court erred in rejecting the contention that the ADO had a conflict of interest. Neither does appellant assert that his last Marsden motion (or, indeed, any of his Marsden motions) was erroneously denied.
