P. v. Gomez

Filed 5/10/07 P. v. Gomez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer and Lee P. Felice, Judges.^*

William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

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This is an appeal from judgment after a jury found defendant Ralph Gomez guilty of violating Penal Code section 1320.5, willful failure to appear in order to evade the process of the court. Sentenced to the middle term of two years for this offense and an additional two years on admitted prior prison term enhancements, defendant appeals.

We will conclude any instructional error was harmless, the court did not abuse its discretion in denying defendants oral motion for continuance on the day of trial, and denial of defendants motion to disqualify under Code of Civil Procedure section 170.6 is not cognizable on appeal. Accordingly, we will affirm the judgment.

Facts and Procedural History

Defendant represented himself in Kern County Superior Court case No. DF006994, in which he was charged with conspiracy. He had been released on bail in that case and was living in Los Angeles, where he was on parole. On July 1, 2005, defendant appeared in court on the conspiracy charge, a trial date was set, and defendant was ordered to appear on August 19, 2005, for a readiness hearing.

On August 19, 2005, Defendant failed to appear in court. He was arrested in Los Angeles on September 22, 2005, after he reported as ordered to his parole officer pursuant to a telephone summons from the officer the day before.

Defendant represented himself again in the present trial court proceedings. When defendant appeared for assignment to a trial department, he requested a continuance so he could subpoena his bail bondsman from Los Angeles. The request was denied. Defendant renewed the request in the trial department. The request was denied. The prosecutor was permitted to amend the information to add an additional prior prison term allegation. At that point, defendant moved to disqualify the trial judge pursuant to Code of Civil Procedure 170.6.^[1] The motion was denied as untimely.

At trial, defendant essentially took the position that he was not trying to evade court process because his parole officer, his bail bondsman, and the court always knew where he lived and he planned to turn himself in as soon as he was ready to go to trial in the conspiracy case. On cross-examination, the prosecutor asked defendant, Isnt it true that what you really were doing, Mr. Gomez, is trying to buy more time to prepare for your conspiracy trial? Defendant responded, Thats absolutely correct.

As noted, defendant was found guilty of the substantive crime, admitted the enhancement allegations, and was sentenced to four years in prison. He filed a timely notice of appeal.

Discussion

A. Intent Instructions

The trial court instructed the jury that violation of Penal Code section 1320.5 requires a certain specific intent in the mind of the perpetrator. The court instructed that [t]he specific intent required is included in the definitions of the crime or the allegations set forth elsewhere in these instructions.

After further instructions concerning evidence of intent, the court instructed on the elements of the crime: The defendant is charged in Count 1 of having violated Section 1320.5 of the Penal Code, a felony. [] Every person who is charged with or convicted of the commission of a felony who is released from custody on bail and who, in order to evade the process of the court, willfully fails to appear, as required, is guilty of a felony.

After repeating the elements of the offense, defining willfully, and defining evade, the court stated the following: Willful failure to appear within 14 days of the date assigned for the appearance may be found to have been for the purpose of evading the process of the court. [] The jury is permitted, but not required, to infer that [sic, from] the defendants willful failure to appear within 14 days of his assigned appearance date that he intended to evade the process of the court. (See People v. Forrester (1994) 30 Cal.App.4th 1697, 1703.)

Defendant contends on appeal that the courts failure to define the specific intent necessary for violation of Penal Code section 1320.5, using the words specific intent, constituted reversible error. We disagree.

First, we doubt there was error. The jury was not instructed with, for example, CALJIC No. 3.30, regarding general intent. (General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, [he] [she] is acting with general criminal intent, even though [he] [she] may not know that [his] [her] act or conduct is unlawful.) The only intent in question under the instructions as given was specific intent. Then, in the definition of the crime, the court instructed that a required element of the crime was that the person willfully failed to appear as required in order to evade the process of the court. Finally, in the permissive presumption instruction, the court used he intended to evade the process of the court in a manner that made it synonymous with in order to evade the process of the court. Nothing meaningful would be added by inserting he [specifically] intended to evade or who, [with specific intent] to evade the process of the court, willfully fails to appear. Accordingly, we conclude the court sufficiently instructed the jury on the elements of the crime and the general principles of law relevant to the case. (See People v. Cummings (1993) 4 Cal.4th 1233, 1311.)

Second, any such instructional error is subject to constitutional harmless error analysis. (See People v. Wesley (1988) 198 Cal.App.3d 519, 525.) In People v. Forrester, supra, 30 Cal.App.4th at page 1702, the court found harmless an instruction establishing that the failure to appear within 14 days after the relevant court date created a mandatory presumption of specific intent to evade the process of the court. There, defendant testified that he did not appear because I never did anything wrong to have to come to Court. Thus, defendant judicially admitted every element of the charge except intent. Given the opportunity to negative criminal intent, defendant offered an explanation pregnant with admission of his intent to evade the process of the court. (Id. at pp. 1702-1703.)

In the present case, defendant admitted in his testimony that he failed to appear because he wanted to obtain additional time to prepare the conspiracy case. Beyond being pregnant with admission of his intent, defendants testimony was an express statement of his intent to delay the trial of his conspiracy case and, as such, was a judicial admission of specific intent to evade (as instructed, to avoid facing up to) the process of the court.

B. Request for Continuance

When defendants case was called for assignment to a trial department on December 27, 2005, defendant told the master calendar judge, Judge Felice, Im not even close to being ready. My investigator made a diligent effort to serve the subpoenas in Los Angeles. He served them all for the requested witnesses. One of the primary witnesses, the parole agent, Agent Andrews, wont be available until after the 1st of the year. The bail bondsman was not able to be served. The person that -- The court interrupted: Have you taken a statement from the parole agent, Mr. Gomez? The prosecutor then stated the agent would be made available for trial. The court denied the motion for continuance.^[2]

Defendant appeared before the trial judge, Judge Oberholzer, later that day and renewed his request for continuance: Ive asked for a continuance for witnesses. [] I have a list here of 34 witnesses. Theres only three or four that are present. [] So Im not even close to being ready for this trial. The court responded: Well, that was handled, apparently, in Department 1.

The issue of witnesses arose several more times during pretrial discussions. In summary, defendant said he wanted to produce the bail bondsman, the prosecutor, and other witnesses to show that defendant was not hiding, that everyone knew where he was, and that he was not jumping bail. He said the witnesses would testify that they knew defendant was planning to deal with the conspiracy trial and [a] federal civil rights case in Fresno and, as he testified at trial, would turn himself in when he was ready to go to trial in the conspiracy case. The court expressed some concern about the relevancy of such testimony. It ruled that defendant had to submit a summary of a witnesss proposed testimony before the witness was called. Defendant informally renewed his motion for continuance: Im being rushed to trial with no preparation. The court proceeded with other motions and jury selection.

On appeal, defendant contends the denial of the continuance motion by Judge Felice was an abuse of discretion. We disagree.

The granting or denial of a motion for continuance of trial rests within the discretion of the trial court. In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his or her motion for a continuance does not require reversal of a conviction. (People v. Samayoa (1997) 15 Cal.4th 795, 840.) In the context of a request for continuance based on the absence of witnesses, a defendant must show (1) a particular obtainable witness ; (2) materiality of the evidence ; (3) the necessity of the witness testimony ; and (4) diligence to obtain the witness attendance . (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) XIV,  334, p. 492.)

While defendant arguably identified a particular obtainable witness (his bail bondsman) and at least asserted reasonable diligence to subpoena the witness, defendant failed to show materiality and necessity either before the master calendar court or in the trial court. On appeal, he fails to show either abuse of discretion or prejudice.

As we have determined in our discussion of defendants claim of instructional error, defendant offered an explanation of his failure to appear, but not a legal excuse for that failure. His explanation constituted an admission that he failed to appear in order to delay the trial of his conspiracy charge. Accordingly, testimony concerning his statements to others that he intended to turn himself in once he was ready to go to trial on the conspiracy charge not only would be inadmissible hearsay, but would be irrelevant to any issue properly before the jury.

Because defendant did not establish the materiality and necessity of the testimony but, instead, established the opposite in his offer of proof, the trial courts did not abuse their discretion in denying the motion for continuance. Because defendant has not established that the evidence would have been relevant and admissible even if the witnesses were present for trial, defendant has not established a reasonable probability of a more favorable result if the continuance had been granted, which showing is necessary for reversal. (People v. Samayoa, supra, 15 Cal.4th at p. 840; People v. Watson (1956) 46 Cal.2d 818, 836.)

C. The Request to Disqualify the Trial Judge

Defendant contends Judge Oberholzer erred when he denied as untimely defendants motion for disqualification pursuant to Code of Civil Procedure section 170.6. Defendant acknowledges and accepts the procedural rule of law that a petition for writ of mandate is the exclusive means of seeking review of denial of a section 170.6 motion. (See People v. Hull (1991) 1 Cal.4th 266, 275.) He contends, however, that he is entitled to raise on appeal the due process claim that Judge Oberholzer was actually biased. (See People v. Mayfield (1997) 14 Cal.4th 668, 811.)

Even if defendant were able to raise the issue of actual bias, he has not attempted to articulate any manner in which Judge Oberholzer displayed bias. As did the court in Mayfield, we have carefully reviewed the entire record [and] we find nothing in the judges handling of [the trial] that supports the charge of bias or prejudice. (People v. Mayfield, supra, 14 Cal.4th at p. 811.) Accordingly, we conclude that defendant was not denied his due process right to an impartial judge. (Ibid.)

Disposition

The judgment is affirmed.

____________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

____________________________________

HARRIS, J.

_____________________________________

LEVY, J.

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^*Judge Oberholzer was the trial and sentencing judge; Judge Felice denied defendants motion for a continuance.

^[1] As relevant here, Code of Civil Procedure section 170.6, subdivision (a), provides:

(a)(1) No judge, court commissioner, or referee of any superior court of the State of California shall try any civil or criminal action when it shall be established as hereinafter provided that the judge or court commissioner is prejudiced against any party .

(2) Any party to or any attorney appearing in any action or proceeding may establish this prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge, court commissioner, or referee before whom the action or proceeding is pending or to whom it is assigned is prejudiced against any party or attorney or the interest of the party or attorney so that the party or attorney cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge, court commissioner, or referee.

(3) If the motion is duly presented and the affidavit or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge, court commissioner, or referee to try the cause or hear the matter. In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge, court commissioner, or referee of the court in which the trial or matter is pending or, if there is no other judge, court commissioner, or referee of the court in which the trial or matter is pending, the Chair of the Judicial Council shall assign some other judge, court commissioner, or referee to try the cause or hear the matter as promptly as possible.

[Subpara. 4-6 omitted.]

^[2] At a December 19, 2005, hearing, when Judge Felice had granted defendants request for a continuance, he had ruled that defendant was not entitled to present hearsay testimony from witnesses (such as the bail bondsman) who would say defendant told them he was going to turn himself in.