P. v. Draper

Filed 3/16/07 P. v. Draper 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Deborah Prucha, 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, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Leland Bea Draper (defendant) contends his conviction for robbery must be reversed because the trial court infringed his Sixth Amendment right to counsel when it denied his request for a two-week continuance of sentencing so that he could replace his retained counsel with different retained counsel to represent him in connection with an effort to withdraw his guilty plea. We will affirm.

Procedural History

Defendant was charged with two counts of robbery and one count of possession of a firearm by a felon in a felony complaint filed on April 4, 2003. Arraignment on the complaint was continued several times, in part because defendant requested time to hire private counsel, in part because defendant had been shot and was hospitalized, and in part because a new felony case was charged against him. The preliminary hearing in this case was not calendared until the tenth time the case was called for arraignment. By that time, the criminal complaint had been amended to charge one count of robbery, one count of assault with a firearm, one count of possession of a firearm by a felon, a prior serious felony conviction (Pen. Code,  667, subd. (a)(1)),^[1]a prior serious or violent felony conviction ( 667, subds. (b)-(i)), and three prior prison terms ( 667.5, subd. (b)).

The preliminary hearing, originally calendared for May 21, 2003, was continued three times and, on the fourth date, July 17, 2003, the preliminary hearing was waived. By that time, private counsel Eric Green was representing defendant. The matter was scheduled for arraignment on the information on August 5, 2003.

On August 1, 2003, a consolidated information was filed, which included those charges on which defendant had been bound over in the present case (F03902142-9) and, in addition, charges stemming from another case (F03903015-6)to wit, two more counts of robbery, and another count of possession of a firearm by a felon.

At the arraignment on August 5, 2003, the consolidated matter was calendared for a pretrial hearing on September 18, 2003, and trial was set for September 29, 2003. Thereafter, the matter was continuedfor jury trial, dispo, or pretrial conference43 times. On February 6, 2006, the parties declared ready for trial to commence the following day. By that time, a first amended consolidated information had been filed; a second amended consolidated information was filed, and defendant was arraigned on it, that day. It added another felony count of possession of a firearm by a felon, and a misdemeanor count of resisting, obstructing or delaying a peace officer.

On the following day, February 7, 2006, after the parties discussed trial procedures and in limine motions, defendant indicated to the court that [h]es not listening to me and that he want[ed] a motion filed. The trial court directed defendant to speak to his lawyer before addressing the court directly. Then, on the record but outside the presence of the district attorney, the trial court conducted an inquiry in the nature of a Marsden^[2]hearing. The court addressed defendants concerns, which centered around his disagreement with defense counsel over whether to file a Pitchess^[3]motion. The court then told defendant he should discuss matters further with defense counsel but cautioned him about arguing with counsel during trial proceedings.

The following morning, defendant announced that he wanted to hire new counsel. Again, the trial court dismissed the district attorney and inquired further of defendant. Expressing general discontentment with his attorney, defendant askedactually, defendants father spoke to the court and asked on defendants behalffor a continuance to the following week, in order to bring new counsel into the matter. The trial court denied the request for a continuance and, in the course of explaining the reasons for the denial, the court noted I think this does appear to the Court to be a method of obtaining another delay.

The jury was sworn and at least one witness had been called when, on the third day of trial, defendant changed his plea. Counsel announced defendant would enter a guilty plea to one count of robbery, admit that he personally used a firearm in the commission of the robbery ( 12022.53, subd. (b)), admit that he had suffered a previous conviction for a serious or violent felony,^[4]and admit the same prior serious felony conviction for purposes of section 667, subdivision (a)(1). During the course of the change of plea proceeding, when the court asked defendant whether he had any questions, defendant asked whether he could have some time to think about it[.] Though the court allowed him time to speak with his attorney, it declined him further time to make up his mind about the plea. Defendant proceeded with the plea, which the trial court cautioned would be a final decision.

Sentencing was calendared for March 10, 2006. The probation report was not provided to defense counsel on time, however, and sentencing had to be continued to April 25, 2006.

When the case was called on April 25, 2006, defense counsel announced he had been informed by [his] client [that] morning that he [was] in the process of hiring a law firm coming out of Cincinnati, Ohio. The trial court responded that it was not going to grant a continuance request without somebody being present ready to go. This case has been continued before. Counsel explained his understanding that defendant wanted to substitute new counsel in order to make a motion to withdraw his plea. Counsel further explained that he would not participate in [a motion to withdraw plea] because of the negotiations that [he] did with the Court and counsel to get it settled. The court again noted the lengthy delays that had already occurred in this case and the fact that no new attorney was present and ready to proceed. It found that no good cause had been shown, and it denied the continuance requested.

Discussion

Defendant contends the trial court violated his Sixth Amendment rights, and those guaranteed by the California Constitution, by denying his request for a continuance of the sentencing hearing. Defendant is correct that the right to counsel extends, though with limitations, to the right of the accused to be represented by counsel of his or her own choice. (People v. Byoune (1966) 65 Cal.2d 345, 346; People v. Jeffers (1987) 188 Cal.App.3d 840, 849.) Defendant also is correct, however, in acknowledging that the right to representation by counsel of choice can constitutionally be forced to yield when it will result in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. (People v. Crovedi (1966) 65 Cal.2d 199, 208.) A nonindigent defendants right to discharge his retained counsel is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in significant prejudice to the defendant [citation], or if it is not timely, i.e., if it will result in disruption of the orderly processes of justice [citations]. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) A defendant who desires to retain counsel of choice is required to act with diligence, and has no right to a continuance if he or she has been dilatory in making the request. (People v. Courts (1985) 37 Cal.3d 784, 790-791.) The defendant, on appeal, has the burden to show an abuse of judicial discretion in the denial of his request for continuance to secure new counsel. (People v. Jeffers, supra, at p. 849, quoting People v. Rhines (1982) 131 Cal.App.3d 498, 506.)

Defendant contends there was an abuse of discretion here because it was not the trial but only the sentencing hearing he sought to put off and there would have been no disruption for a short continuance of the sentencing hearing. As reflected by the record, there were no victims or other prosecution witnesses present at the sentencing hearing who would have been inconvenienced. There is, however, absolutely no support in the record for this suggestion that victims or witnesses were not present and/or would not have been inconvenienced by yet another continuance in this already three-year-old case. Neither do we agree with the premise that a showing of inconvenience to witnesses, attorneys, or court personnel is required to show disruption of the orderly processes of justice [citations]. (People v. Ortiz, supra, 51 Cal.3d at p. 983.) This case, for reasons probably attributable to both of the parties and an overburdened system of justice, had already come near to making a mockery of any orderly process of justice. We find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Dawson, J. and Kane, J.

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

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

^[3]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

^[4]Manslaughter, in violation of section 192, subdivision (c)(1) in 1993.