P. v. Torrey

Filed 6/13/06 P. v. Torrey CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.

Wyatt David Torrey appeals a judgment following his jury conviction on one count of burglary (Pen. Code, § 459)^[1] and one count of petty theft (§ 484). On appeal, he contends the trial court abused its discretion by denying his motion for a continuance of the trial to allow him to retain a private attorney.

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2005, Torrey entered a Ralph's grocery store in downtown San Diego. He placed his duffel bag in a shopping cart and proceeded to place inside the duffel bag 51 items (worth a total of $323) from the store's healthcare aisle. He then walked past the cash register area and out of the store without paying for the items. He was apprehended and detained by the store's loss prevention officers outside the store. He did not possess any cash, credit cards, or identification.

An information charged Torrey with burglary and petty theft. It also alleged he was ineligible for probation (§ 1203, subd. (e)(4)) and had two prior prison terms within the meaning of sections 667, subdivision (b) and 668. On September 8, after the trial court denied his Marsden^[2] motion and motion for a continuance to allow him to retain a private attorney, a jury trial was conducted and Torrey was found guilty of the burglary and petty theft offenses. He subsequently admitted the truth of the information's prior prison term allegations. The trial court sentenced Torrey to the upper three-year term for the burglary offense, with two consecutive one-year enhancements for his prior prison terms, for a total term of five years.^[3]

Torrey timely filed a notice of appeal.

DISCUSSION

I

Constitutional Right to Counsel of Choice

"A criminal defendant is entitled to assistance of counsel at all critical stages of the proceeding. (U.S. Const., 6th Amend.; Cal. Const, art. I, § 15; Pen. Code, §§ 686, 859 & 987; Gideon v. Wainwright (1963) 372 U.S. 335, 344-345 . . . .) 'The right[s] of a criminal defendant to counsel and to present a defense are among the most sacred and sensitive of our constitutional rights. [Citation.]' (People v. Ortiz (1990) 51 Cal.3d 975, 982 . . . .) [¶] The [trial] court is under an absolute duty to appoint counsel to represent an indigent defendant. [Citations.]" (People v. Lara (2001) 86 Cal.App.4th 139, 149-150.)

"The right to the effective assistance of counsel 'encompasses the right to retain counsel of one's own choosing. [Citations.]' [Citation.]" (People v. Courts (1985) 37 Cal.3d 784, 789.) However, the right to appear and defend with retained counsel "is not absolute, and the court may exercise discretion to ensure the orderly and expeditious judicial administration if the defendant is 'unjustifiably dilatory or . . . arbitrarily desires to substitute counsel at the time of trial.' [Citation.]" (People v. Leonard (2000) 78 Cal.App.4th 776, 784.) "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.) "As to [a] defendant's request for a continuance to seek private counsel, the court's decision to deny the request is reviewed [for] abuse of discretion. [Citation.]" (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367.) "Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary. [Citation.]" (People v. Jeffers, supra, at p. 850.) It is the defendant's burden on appeal to show the trial court abused its discretion by denying a motion to substitute counsel and continue the trial. (Ibid.)

People v. Courts, supra, 37 Cal.3d at pages 790 to 791, stated:

"Limitations on the right to continuances [to retain private counsel] are . . . circumscribed. Generally, the granting of a continuance is within the discretion of the trial court. [Citations.] 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.]" (Italics added.)

In the circumstances of Courts, the court concluded that because the defendant's motion for continuance to retain private counsel was effectively made eight days before the trial date and the defendant had actually retained private counsel five days before the trial date, "the [trial] court was not confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel. [Citation.]" (People v. Courts, supra, 37 Cal.3d at p. 791.) Courts further concluded: "[I]t cannot be said that [the defendant] was 'unjustifiably dilatory' in attempting to obtain the services of counsel of his own choosing. [Citation.]" (Ibid.) Courts distinguished the facts in its case with those in cases involving "eve-of-trial, day-of-trial, and second-day-of-trial requests," in which appellate courts "found the lateness of the continuance request[s] to be a significant factor which justified [denials of continuances] where there were no compelling circumstances to the contrary. [Citation.]" (Id. at p. 792, fn. 4.) Courts also noted its facts were "to be sharply contrasted with cases which have upheld the denial of a continuance on the ground that participation by a particular private attorney was still quite speculative at the time the motion for continuance was made. [Citations.] The facts here also differ from cases in which the continuance request was premised on the accused's representation that he would eventually be able to hire counsel of his own choosing. [Citation.]" (Id. at p. 791, fn. 3.)

II

Trial Court's Denial of Torrey's Motion

for Continuance to Retain Private Counsel

Torrey contends the trial court abused its discretion by denying his motion for a continuance to allow him to retain private counsel.

A

On February 26, 2005, Torrey was arrested. He was released from custody the following day. On May 12, he was represented by public defender Tara Jones at a scheduled readiness conference. On May 25, Jones represented him at his preliminary hearing and at his arraignment thereafter.

On July 6, Torrey was returned to custody, where he remained until September 3.^[4] On July 15, Jones appeared on Torrey's behalf and requested and obtained a continuance of the trial until August 1. On July 18, Jones represented him at the readiness conference and agreed with the prosecutor to another continuance of his trial date until September 8 (to allow the trial in his new criminal case to also be held on that date). On August 25, Jones appeared on Torrey's behalf and confirmed the September 8 trial date.

On September 8, after Jones announced she was ready for trial, Torrey made a Marsden motion. The trial court conducted a Marsden hearing outside the presence of the prosecutor. Torrey complained there was a lack of communication between Jones and him and that he had not received copies of certain reports and evidence. Jones explained the actions she had taken in representing Torrey. The trial court denied Torrey's Marsden motion.

Immediately after the trial court denied his Marsden motion, Torrey moved for a continuance of the trial to allow him to retain a private attorney to represent him. He explained he had just been released from jail on Saturday (i.e., September 3, 2005). Since then, he had contacted attorney Michael Thomas regarding Thomas's possible representation of him at trial. Although Torrey stated that Thomas was willing to represent him, Torrey explained he had not asked Thomas to represent him. Torrey admitted he had not paid a retainer to any attorney to represent him. Torrey explained: "I spent all my money twice getting out of jail, so I don't have a lot of money. I'm retired military, but I still manage to keep my head above water. And I also have obtained a job since I've been out of jail [since September 3] so I can get money."

The trial court denied Torrey's motion for a continuance to allow him to retain private counsel, stating:

"[T]he case was set today for trial, and it has moved along at the normal pace here. Actually, it's been continued . . . a couple of times. . . . The trial was originally set for July 15th . . . which was two months ago. It was then continued to August 1st on the defendant's motion. It was then continued to this date. So there's been plenty of time during this period of time for you to contact an attorney and hire an attorney, if you had the financial ability to do so.

"At this point, I find that the motion to continue again with just the vague representation that you might be able to come up with enough money to hire somebody and the vague representation as to when [who?] that somebody might be, is untimely. The People have a right to, essentially, a timely trial as well. So I'm going to deny the motion to continue the trial. Ms. Jones does remain appointed counsel."

B

Torrey asserts the trial court acted arbitrarily and abused its discretion by denying his motion for a continuance of the trial because the two prior trial continuances were not an inordinate number and his ability to pay for private counsel had been impaired by his incarceration from July 6 until September 3.^[5] He also argues his motion for a continuance was not merely for the purpose of delay and there was no concern that the prosecution witnesses (i.e., two Ralph's store employees) would become unavailable were the trial continued.

However, the record shows Torrey did not move for a continuance until the first day of trial (September 8, 2005). He also apparently did not contact his prospective private attorney (i.e., Thomas) until after he was released from jail on September 3. The record does not show why Torrey did not attempt to retain a private attorney during the eight-month period from his February 26 arrest until shortly before the September 8 trial date, which period included a continuous four-month period during which he was not incarcerated. Therefore, the trial court could have reasonably concluded Torrey was unjustifiably dilatory in attempting to retain a private attorney only shortly before trial and in filing his motion for continuance to obtain a private attorney on the first day of trial. (People v. Courts, supra, 37 Cal.3d at pp. 790-791; People v. Leonard, supra, 78 Cal.App.4th at p. 784; People v. Jeffers, supra, 188 Cal.App.3d at p. 850.)

Most importantly, unlike in Courts, the trial court in this case was "confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel. [Citation.]" (People v. Courts, supra, 37 Cal.3d at p. 791.) In this case, "participation by [Thomas or another] particular private attorney was still quite speculative at the time the motion for continuance was made" and Torrey's motion for a continuance effectively "was premised on [his] representation that he would eventually be able to hire counsel of his own choosing." (Id. at p. 791, fn. 3.) Torrey did not show, much less represent, that he was financially able to retain Thomas or another private attorney at the time of his motion for continuance or at any particular time in the near future. By his own admission, he had spent all of his money getting himself out of jail twice in the prior eight months, presumably choosing to spend his money to bail himself out rather than to potentially pay a retainer to hire a private attorney. Although Torrey represented he had obtained a job since his September 3 release from custody, he did not show, or represent, the amount of his earnings from that job (or how long he would be able to work at that job). Furthermore, the record does not show how much of a retainer Thomas or another private attorney would require to represent Torrey. "The condition of being 'financially able' for the purposes of employing counsel of choice must be limited to exclude those who cannot hire the services of chosen counsel at the time of the proceedings against him. To hold otherwise would be to encourage frivolous and unjustified delay in and misuse of the trial process." (People v. Lefer (1968) 264 Cal.App.2d 48, 50.) Accordingly, at the time of Torrey's motion for continuance, the trial court could have reasonably concluded that it was "quite speculative" whether Thomas or another private attorney would represent Torrey. (People v. Courts, supra, at p. 791, fn. 3, italics added.)

Weighing the factors regarding Torrey's dilatory conduct in attempting to retain an attorney and in filing a motion for continuance, and his apparent lack of financial ability to retain a private attorney against the public's interest in orderly and expeditious judicial administration, the trial court could reasonably conclude Torrey's motion for a continuance to retain a private attorney should be denied. We conclude the trial court did not abuse its discretion, or deny Torrey his Sixth Amendment right to counsel, by denying his motion for a continuance. (People v. Courts, supra, 37 Cal.3d at pp. 790-791; People v. Pigage, supra, 112 Cal.App.4th at p. 1367; People v. Jeffers, supra, 188 Cal.App.3d at p. 850.)

DISPOSITION

The judgment is affirmed.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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^[1] All statutory references are to the Penal Code.

^[2] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[3] The trial court sentenced Torrey to a concurrent term of three years for his petty theft offense, but stayed execution of that sentence pursuant to section 654.

^[4] Torrey was placed in custody on his arrest in another criminal case.

^[5] Torrey does not contend on appeal that the trial court erred by denying his Marsden motion.