Filed 4/18/18 P. v. Bauer CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL RAYMOND BAUER,

Defendant and Appellant.
D071813



(Super. Ct. No. PLAH6893)

APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.
Benjamin Kington, under appointment by the Court of Appeal, for the Defendant and Appellant.
No appearance for Plaintiff and Respondent.
 
Michael Raymond Bauer appeals an order revoking and reinstating his parole following a contested parole revocation hearing. His counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) to determine whether there are any arguable issues for review. We informed Bauer of his right to file supplemental briefing, and he has not done so. Having independently reviewed the record, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, Bauer pleaded guilty to one count of lewd act on a child under the age
of 14. (Pen. Code, § 288, subd. (a); see People v. Bauer, supra, 212 Cal.App.4th at
p. 153.) The court ordered him placed on probation, but his probation was later revoked and in May 2013 he was sentenced to six years in prison. He was released on parole in mid-2015, and from that time to August 2016 he suffered numerous parole violations.
In early December 2016, Bauer signed conditions of parole, including a special condition that he "shall not possess or have access to children clothing [sic], toys, games, or other similar material related to children's interest." About a week later, Bauer was arrested after his parole agent tracked his location to a Wal-Mart and observed him with a scooter, backpack, Christmas wrapping paper, and other items. The agent tracked Bauer to a downtown J Street residence, whose owner later told the agent that Bauer had asked her if he could purchase Christmas presents for her children, then gave her the scooter, a video game, and a toy wrestling figure for them. Bauer's parole agent spoke with Bauer after he was incarcerated. Bauer was agitated and belligerent. He told the parole agent that the owner and her children were like family to him, and nothing was going to stop him from contacting them.
On December 13, 2016, the People petitioned to revoke Bauer's probation, alleging he violated the condition relating to possessing materials of interest to children. The court summarily revoked his parole and set the matter for an evidentiary hearing. Thereafter, the court permitted Bauer to proceed in propria persona, and continued the hearing, which had been set for January 9, 2017, to February 6, 2017. Before his hearing, Bauer moved ex parte to appoint the services of the San Diego County office of assigned counsel so that he could obtain documentary and other physical evidence, present witnesses, and issue subpoenas. He asked that an investigator be appointed to interview the witnesses, for motions to be filed at the court's expense, and that an expert be appointed. In a declaration submitted in connection with the motion, Bauer asserted he was "prepared to show [his] need for an expert . . . at an ex parte, in[-]chambers reported proceeding . . ." and "the services of this expert are essential to a vigorous and competent preparation of the defense in this matter . . . ." He asserted that without the services, he would not receive a constitutionally adequate defense. Following a closed hearing on the matter, the court denied Bauer's request, finding he had not demonstrated the requested services were reasonable and/or necessary.
Several days later, Bauer moved for a continuance of his hearing on grounds he had not received any photographs or video footage mentioned in his parole officer's report showing Bauer purchasing toys from Walmart. He argued he needed time to prepare a defense as to why he should not be evaluated as a sexually violent predator. Finally, he argued he had prepared a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) to attack the credibility of his parole agent, but he had not been able to serve the motion without ancillary services. He asked for additional time and an order directing a jail representative to make copies of the motion so he could serve them.
The court considered Bauer's continuance request at the February 6, 2017 probation violation hearing. Bauer argued he was entitled to exculpatory and other evidence, and that the People had a duty to preserve and disclose physical evidence, consisting of the photographs of the Walmart items at the J Street residence and video footage of him purchasing them. The People pointed out that Bauer had already been given one continuance, and that any physical evidence would not be exculpatory. Bauer further asserted that he needed time to prepare and file his Pitchess motion, and also to prepare his defense as to why he should not be evaluated as a sexually violent predator. Pointing out the People's allegation was that Bauer had violated his condition of parole not to possess or have access to children's clothing, toys, games or other material related to children's interests, and that the question was whether he possessed or had access to it, not how he obtained access, the court denied the request. It found no good cause to continue the probation revocation hearing. The court then heard sworn testimony from Bauer's parole agent, who was cross-examined by Bauer. Finding the agent credible, the court determined that Bauer had violated a valid condition of parole in effect at the time of the incidents.
Bauer filed a notice of appeal in February 2017.
DISCUSSION
Bauer's appellate counsel has filed a brief, pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, urging no grounds for reversal of the judgment, and asking this court independently to review the record for error. Pursuant to Anders, counsel identifies the following issues to assist the court in its search of the record for error:
(1) Whether the trial court erred by denying Bauer's request for ancillary services; and
(2) Whether the trial court erred by denying Bauer's request for a continuance.
I. Request for Ancillary Services
" 'An indigent defendant has a statutory and constitutional right to ancillary services reasonably necessary to prepare a defense. [Citations.] The defendant has the burden of demonstrating the need for the requested services. [Citation.] The trial court should view a motion for assistance with considerable liberality, but it should also order the requested services only upon a showing they are reasonably necessary. [Citation.] On appeal, a trial court's order on a motion for ancillary services is reviewed for abuse of discretion.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1255, reversed on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; see also People v. Stuckey (2009) 175 Cal.App.4th 898, 918.)
II. Request for Continuance
" 'Continuances shall be granted only upon a showing of good cause.' ([Pen. Code,] § 1050, subd. (e).) To determine whether good cause for a continuance exists, a trial court '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 . . . and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " [Citation.]' [Citation.] The court should also consider whether a continuance would be 'useful.' [Citation.] '[T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time.' [Citation.] 'Whether good cause exists is a question for the trial court's discretion. [Citation.]' [Citation.] The grant or denial of a continuance is ' "seldom successfully attacked." ' " (People v. Hatt (2018) 20 Cal.App.5th 321, 325; see People v. Johnson (2013) 218 Cal.App.4th 938, 941-942 [section 1050 applies to probation revocation hearings].)
We have reviewed the record consistent with the requirements of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738; considered the issues listed by appellate counsel; and found no reasonably arguable grounds to reverse or modify the order. Appointed counsel has represented Bauer competently on this appeal.

DISPOSITION
The order is affirmed.

O'ROURKE, J.

WE CONCUR:



NARES, Acting P. J.



GUERRERO, J.