P. v. Warren

Filed 10/2/07 P. v. Warren 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

A jury convicted defendant Kenneth Eugene Warren of car burglary (Pen. Code, 459) and receiving stolen property (Pen. Code, 496, subd. (a)). The trial court sustained allegations of a prior serious felony conviction and a prior prison term (Pen. Code, 1170.12, 667.5, subd. (b)). Defendant was sentenced to seven years in prison.

On appeal, defendant contends the denial of his motion for a continuance was an abuse of discretion; the trial court erroneously admitted evidence of his prior conviction for lewd and lascivious conduct with a child under 14 years of age; and his upper term sentence violated the principles of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). We reject the contentions and affirm.

Background

On January 1, 2005, Crystal Stedman and her husband were driving by JTs Pro Smog (JTs), an auto repair business in Redding owned by her husbands friend, when they saw a man standing by a car that looked like a blue Nissan Altima or Maxima. They drove into the shops parking lot, thinking the man was the friend of Stedmans husband, and that he had locked himself out of his car. Stedman realized that the man, whom she identified at trial as defendant, was not her husbands friend, and was sticking something down the window of the drivers side door. After several minutes, defendant left the car and walked across the street. Stedman and her husband then drove to a nearby gas station and called the police.

Kandice Mitchell, who worked at JTs, had left her Nissan Altima in the shops parking lot for the New Years weekend. Over the weekend, someone broke into her car and took a CD case containing between 100 and 200 CDs, a portable CD player, a DVD, and her wallet, which contained her social security card, bank card, insurance card, and some loose change.

Officer Les James of the Redding Police Department responded to the car burglary call. He drove by JTs and found defendant about five to six feet away from the Altima. As Officer James approached, defendant walked away from the car toward the building to the south of JTs, stopping briefly to pick up some items from the ground.

Officer James parked his patrol car, exited, and asked defendant if he could speak with him. He observed that defendant was carrying a CD player and a CD holder. A consensual search of defendant turned up defendants wallet in his right rear pants pocket and what appeared to be a womans wallet in his front sweatshirt pocket.

When asked to whom the second wallet belonged, defendant initially told Officer James that the wallet was his girlfriends. He also told the officer that the CD case and CD player were his. When Officer James asked defendant for his girlfriends name, defendant replied that the wallet might belong to one of his girlfriends friends.

Officer James found Mitchells social security card, bank card, and other papers in the wallet. He also discovered that the rear wing drivers side window of the Altima was broken and found small lacerations on defendants hands.

Defendant was arrested and booked at the Shasta County jail. A booking search was administered, and defendant was found to have $2.44 in change and a shard of glass in his front pants pocket. The shard was consistent with the broken glass from the Altima found at the crime scene. No burglary tools were discovered on defendant.

Defendant testified on his own behalf and admitted to a prior conviction in 1996 for a lewd or lascivious act with a child under the age of 14. Going home after having failed to get a meal at a homeless shelter, defendant stood under an awning to get away from the rain. Under the awning, defendant noticed a flower pot containing a CD case full of his favorite CDs, a womans wallet, a pile of change, and a CD player. He picked up the change and began walking toward the smog shop looking for more change on the ground. While he was picking up more change, defendant noticed the broken glass from the Altima. Defendant then gathered the rest of the items he had seen in the flower pot and turned back around, where Officer James came to speak to him.

Defendant first told Officer James that the wallet was his because he was afraid that the officer would take the other items. Once he learned the wallet belonged to Kandice Mitchell, defendant stopped talking. He asked the officer to fingerprint the car, and thought the police had taken pictures of his hands. Defendant assumed he had picked up the shard of glass when he was picking up the loose change in the flower pot. Just before the incident with Officer James, defendant had injured his hands after helping a friend break up some concrete.

Officer James testified on rebuttal that defendant never asked him to fingerprint the car, and that prints would be impossible to find from the exterior of the car because it was wet from the rain.

Discussion

I. Motion for Continuance

Defendant contends the trial court committed prejudicial error in denying his motion for a continuance. In support of his claim, defendant asserts that in addition to the good cause for a continuance provided by trial counsel in the motion, a continuance was also necessary in light of pretrial errors committed by the trial court. Defendant claims that the trial court improperly deprived defendant of his right to counsel for a two and one-half month period before trial and that he was illegally detained by virtue of an excessive bail imposed by the trial court on defendant in an unrelated matter. Finding no abuse of discretion, we reject defendants contentions.

Defendants claims are best understood if the case is examined chronologically. On January 4, 2005, the Shasta County Public Defenders Office was appointed to represent defendant. Deputy Public Defender Theodore Loos was assigned the case on January 6, 2005, and appeared in court with defendant on January 13, 2005. Defendant was held to answer on January 18, 2005, and was represented by Loos. A jury trial was set for May 17, 2005. This trial date was confirmed on May 2, 2005.

On May 13, 2005, Loos requested a continuance. The prosecutor told the court that 10 days earlier, counsel had informed him that defendant wanted to retain private counsel for his defense. The counsel defendant planned to hire, William Malloy, told the court that funding would be available in two to three weeks. With defendants consent, the trial court vacated the trial date and set the matter for another appearance on June 3, 2005. The trial court informed defendant that the public defender was still his attorney until he retained counsel.

Defendant failed to appear at the June 3 hearing and Malloy told the court he had not yet been retained. Loos confirmed that he was still defendants counsel. The trial court issued a bench warrant and set bail at $50,000 after the prosecutor pointed out that defendant had a prior strike.

The warrant was recalled on June 6, 2005, when Loos informed the court that defendant had made it to the courthouse on June 3, but had arrived after it was closed because he had transportation problems. Malloy was also at the hearing and asked for a 30-day continuance to allow defendant to gather the funds to retain him. The court continued the matter until June 30, 2005. The trial court stated: Well set it for that date. And if -- if nothing has happened, then well reconsider another date or Mr. Loos may go forward as his counsel.

Loos, Malloy and defendant appeared before the court on June 30, 2005. Malloy told the court defendant did not yet have the funds (an expected workers compensation settlement), but he still thought defendant was going to retain him. The matter was continued to July 20, 2005.

On July 20, 2005, defendant made a general appearance with Malloy, and Loos was relieved as counsel. Trial was set for November 8, 2005, and the settlement conference was set for October 17, 2005.

On July 21, 2005, Malloy filed a motion to be relieved as counsel of record because defendant had failed to retain him and the attorney-client relationship between said counsel and the defendant herein has broken down to such a magnitude as to jeopardize defendants constitutional right to effective assistance of counsel. Malloy appeared at the August 8, 2005, hearing on the motion, but neither Loos nor defendant was present. At the hearing, Malloy informed the court he had served defendant with the motion by mail, had sent correspondence reminding him of the date, and his secretary had left a voice mail reminder of the hearing date.

The trial court relieved Malloy as counsel. The court noted that defendant had failed to appear before the court on a complaint for possession of marijuana, in violation of Health and Safety Code section 11357, subdivision (b). After learning that defendant would not be appearing in the instant matter until the October 17, 2005, settlement conference, the court issued a bench warrant on the possession matter and set bail at $25,000. Noting [t]his may be little high for the Health and Safety Code [section] 11357 (b) the trial court concluded it will get him here. The minute order for the hearing contained the notation, def[endant] now pro[.] per.

At the October 17, 2005, hearing, defendant was listed in the minute order as pro[.] per. He had surrendered to a bondsman and the bond was exonerated. The trial court asked defendant if he would like counsel. Defendant said that he did, and the court reappointed Loos. Loos informed the court he had given Malloy all the files when Malloy was appointed, and he therefore probably [would not] be prepared to go[ to trial]. The trial court left the scheduled dates intact and told the parties to come back in a week to see if the defense needed more time. The court told Loos it was more than willing to set [the trial] within 60 days of today, as opposed to when we come back.

On October 24, 2005, Loos told the court he had met with defendant and had reviewed the case with him. Loos said he was familiar with the case due to the fact that I had had it in the past. Loos told the trial court that the defense had no witnesses, defendant was prepared to go forward, and wanted to keep the original date for trial. Both parties declared that discovery had been provided, and the November 8 trial date was confirmed by the court. On November 4, 2005, Loos again represented that he was ready to go forward with the November 8 trial date.

On November 8, 2005, before the start of jury selection, Loos moved for a continuance. Among the reasons for the continuance was that defendant was just now out of custody and able in his opinion to aid [Loos] in his defense by rounding up witnesses and things of that nature. Counsel wanted to conduct a lineup, and was awaiting the packet in defendants prior conviction in order to determine whether defendants constitutional rights had been protected.

Loos also informed the court that defendant had told him that the police had taken photographs of his hands after the arrest, but counsel had not yet been able to find them after consulting with the prosecutor. Finally, Loos stated that defendant felt he had been unjustly taken into custody under the bench warrant and therefore has been angry and reluctant to help me out in these matters as forthrightly as I hoped he would do so, and he has raised many of these issues in the past day or so.

Loos admitted taking the case on January 6, 2005, but told the court his office did not have the funds to investigate matters once defendant said he was hiring outside counsel. He saw his client on October 21, 2005, but defendant, who insisted on keeping the trial date, was so angry that he was not responsive to counsels questions. The district attorney told the court that to the best of his knowledge, his office had obtained all of the photographs in the possession of the Redding Police Department. The trial court denied the motion, finding defendants anger was not good cause for a continuance.

Continuances shall be granted only upon a showing of good cause. [Citation.] The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge. [Citation.] The burden is on [the defendant] to establish an abuse of judicial discretion . . . . [Citation.] [A]n order of denial is seldom successfully attacked. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) In determining whether a denial 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.)

Defendant contends that the reasons given by trial counsel for the continuance, when combined with what he considers to be illegal pretrial actions by the trial court, make a compelling case for a continuance. He is incorrect.

We will assume without deciding that the trial court improperly detained defendant by setting an excessive bail of $50,000 for misdemeanor possession of marijuana, and that defendant was improperly without counsel from the time Malloy was relieved of counsel until Looss reappointment. Even under these circumstances, defendant has not met his burden of establishing good cause for a continuance.

Defendant was not prejudiced by being without representation for the two and one-half months between Malloys dismissal and Looss reappointment. Loos had the case for almost four months before defendant first indicated, on May 3, 2005, that he would be seeking private counsel. Loos was not relieved until July 20, 2007, over six months after his appointment. One week after his reappointment, Loos told the court he was ready to go forward with the original trial date; he affirmed this decision on November 4, 2005, just four days before the start of jury selection. Loos ably represented his client at trial, and nothing in the record indicates that he was unprepared to try the case.

Defendants more specific claims are no more effective in establishing good cause. While Loos wanted the continuance to help get a lineup, he admitted that a lineup had already been discussed with defendant before Loos had been relieved. Defendant was positively identified by Stedman, and he was found at the scene with items stolen from the Altima. He was not prejudiced by any difficulty in obtaining a lineup resulting from the denial of the continuance.

The claim that a continuance was necessary to help defendant contest the prior conviction is also without merit. Loos wanted a continuance so that he could examine the prior conviction packet to determine whether defendants guilty plea in that matter had violated his constitutional rights. The trial court told Loos it would give him the opportunity to obtain that transcript. A bifurcated hearing on the prior conviction allegation was held on December 12, 2005. Loos told the court he had been given a copy of the transcript of the guilty plea and had determined that all of defendants constitutional admonitions were given to him and that he acknowledged and waived them.

Defendants contention that the pretrial detention prevented him from aiding in his defense is also without merit. A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Defendants anger at the alleged injustice he suffered at the hands of the trial court does not excuse any failure on his part to assist counsel. He alone is responsible for any prejudice he may have suffered for his decision not to assist counsel while in custody.

Since defendant has failed to establish good cause for a continuance, the trial court was within its discretion to deny the motion.

II. Impeachment with a Prior Conviction

Over defendants objection, the trial court allowed him to be impeached with a nine-year-old prior conviction for lewd and lascivious conduct with a child under 14 years of age. (Pen. Code, 288, subd. (a).) Defendant claims the conviction was too remote and too prejudicial to be admitted for the purpose of impeachment. We reject his contention.

We review the trial courts admission of a defendants prior conviction for an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 654-655.) In exercising its discretion whether to admit a prior felony conviction for impeachment, the trial court must consider (1) [w]hether the prior conviction reflects adversely on an individuals honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1496.)

In People v. Castro (1985) 38 Cal.3d 301, at page 306, our Supreme Court stated: We shall hold that--always subject to the trial courts discretion under [Evidence Code] section 352--subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty. Defendant concedes the prior convictions involved moral turpitude; however, he asserts the evidence of his prior conviction was inflammatory and, because it was nine years old, too remote to have sufficient probative value to overcome the prejudice of a prior conviction for lewd acts with a child under 14.

There is no rigid formulation governing the admissibility of prior convictions. Factors such as remoteness of a prior conviction are not absolutes; rather they are guidelines to be considered by the trial court in exercising its discretion. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) [D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] (People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green).)

That is not the case here. It is not the mere passage of time but whether the previous offense represents a divide between conduct detrimental to his veracity and a subsequent blameless record. (Green, supra, 34 Cal.App.4th at p. 183) [no abuse of discretion in allowing use of 20-year-old conviction where followed by a pattern of criminal conduct].) The prosecution pointed out, without dispute, that defendant went to prison for his prior conviction in 1996, was paroled in 1998, and returned to prison for parole violations in April 2000, June 2001, and April 2002. The court acted well within its discretion in concluding that the sheer number of parole violations demonstrated that defendant has not led a legally blameless life since 1998. (See People v. Muldrow (1988) 202 Cal.App.3d 636, 648.)

III. Blakely error

Defendant was sentenced to an upper term for the car burglary count and a stayed upper term for the receiving stolen property count. In a supplemental brief, he contends the upper term sentence violates the principles of Blakely, supra, 542 U.S. 296 and Apprendi, supra, 530 U.S. 466.

In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the United States Supreme Court held that the factual basis for imposing an upper term, other than a prior conviction, is subject to a jury trialand proof beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) During the sentencing hearing, the trial court noted that defendant is a man who has committed two sex offenses, who has been to prison for the latest of those sex offenses, who has gotten out of prison and violated parole on I think three different occasions.

In imposing the upper term, the trial court stated, Im not considering the fact that he served a prior prison term as a factor in aggravation. But it is true his offenses are numerous. And while they may not be increasing in seriousness in this case, I think they indicate a chronic criminal disposition unchecked . . . at this point. The court also noted as an aggravating factor defendants unsatisfactory prior performance on parole due to his having at least three parole violations since his last conviction. The court found no mitigating factors to balance against these two aggravating factors and imposed the upper term.

The California Supreme Court has determined that the exception to Blakely for prior convictions is not to be read narrowly, concluding that the rule of Apprendi does not preclude a court from making sentencing determinations related to a defendants recidivism. (People v. McGee (2006) 38 Cal.4th 682, 707.) The exception to the rule of Apprendi and Blakely thus refers broadly to recidivism enhancements. (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) References to defendants prior convictions for sex offenses and parole violations both come within this definition of the prior conviction exception.

Defendant contends that California decisions recognizing an exception to the rule of Blakely for sentencing decisions based upon defendants recidivism are no longer valid in light of Cunningham. The California Supreme Court recently determined that Cunningham does not undermine the authority of these decisions. (People v. Black (2007) 41 Cal.4th 799, 829-820 (Black II).)

[S]o long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions[,] imposition of the upper term does not violate the rule of Blakely. (Black II, supra, 41 Cal.4th at p. 816.) Since defendants prior criminal conviction and his history of parole violations both come with Black IIs definition of the recidivism exception, his upper term sentence dies not violate Blakely.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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