P. v. Kaiserman

Filed 3/19/07 P. v. Kaiserman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kings County. Peter M. Schultz, Judge.

Alex Green, 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, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On December 20, 2005, Brandon Cole Kaiserman (defendant) waived a preliminary examination and entered a guilty plea to a charge of violating Penal Code section 12020, subdivision (a)(1), a felony.^[1] The charge arose from his possession of a pair of brass knuckles on or about December 1, 2005. Defendant also admitted that he had suffered a prior conviction for a serious or violent felonyto wit, arson in violation of section 451, subdivision (d)in 1999. Count 2, which charged a misdemeanor, was dismissed. Appellant was represented by appointed counsel Laurence Meyer. The case was set for further proceedings on December 28, 2005, and sentencing on January 23, 2006.

On December 28, 2005, defendant appeared and, according to the minute order, attorney Laurence Meyer was confirmed as counsel of record. On January 23, 2006, the date set for sentencing, defendant requested leave and was granted permission to withdraw his plea and admission, on the basis he had been misadvised regarding eligibility for commitment to the California Rehabilitation Center. At the hearing, after defendant withdrew his plea, Mr. Meyer and the court had the following exchange:

Mr. Meyer: [Defendant] may need other counsel appointed.

The Court: Is [defendant] intending to hire counsel or does he want counsel appointed?

Mr. Meyer: Your Honor, [defendant] is intending to hire counsel; however, I really dont think he understands the magnitude of going to a felony jury trial, and I dont really know that he has the funds to do that so I would ask the Court to appoint counsel and then his family can look into it. [] He may not realize that hes talking between 10 and probably $20,000, so at least you could appoint counsel and give him time to talk to his family.

The Court: All right, well set the matter over until tomorrow morning for appointment of counsel.

The following day, January 24, 2006, defendants case was called, Mr. Meyer was relieved, and attorney Marianne Gilbert was appointed to represent defendant. Though preliminary examination had been waived, no information had yet been filed. The matter was continued to the next day for arraignment. No mention was made, by defendant or anyone else, regarding retention of private counsel.

On January 25, 2006, Ms. Gilbert appeared with defendant and he was arraigned on the information. Jury trial was sent for March 20, 2006, with trial confirmation on March 17, 2006, and pretrial conference on February 10, 2006. Again, there was no mention of retaining or otherwise changing counsel.

At the pretrial conference on February 10, defense counsel Gilbert requested a continuance to view discovery, a photo of the brass knuckles involved in the charge. On February 22, 2006, the matter was again continued so that counsel could examine the photos. On February 24, 2006, counsel apparently had seen the photos. The minute order states: offer conveyed & opened until trial readiness date on March 1, 2006. Nothing in the record of any of these three pretrial conferences reflects any mention of retaining counsel or otherwise replacing attorney Gilbert.

On March 1, 2006, at a trial readiness conference, attorney Gilbert informed the court:

Your Honor, we had this matter trail from last week so [defendant] could consider the Peoples offer . [] He has been thinking about that and has sought out a second opinion, Eric Hamilton, and hes been negotiating in getting Eric Hamilton to come into his matter. [] They have arrived at a price and hes been talking with his family; specifically, his sister about making those financial arrangements, and this morning he is requesting a continuance and agreeing to waiving time if the Court will allow him to continue his trial so that he can have private counsel.

The trial court responded: Im sorry, but [defendant] has had ample time to retain private counsel. The court then inquired whether, [o]ther than that, there were any reasons why defendant would not be ready for trial on March 20th. Gilbert announced they would be ready, and the trial court reminded counsel and defendant that the Court wont accept any plea agreements after today.

At the previously scheduled trial confirmation hearing, however, at least according to the minute order,^[2]an offer [was] conveyed & rejected. Nothing on the minute order reflects any further discussion regarding replacement or retention of counsel.

Jury trial commenced in the morning on March 20, 2006, and the jury returned its verdict finding defendant guilty as charged in count 1 at the end of the afternoon. In a bifurcated proceeding, defendant pleaded guilty to the misdemeanor charge in count 2 (Health & Saf. Code,  11550) and admitted the charged prior strike. Sentencing was scheduled for April 26, 2006, and on that date, the trial court sentenced defendant to a midterm of four years in prison.

DISCUSSION

Defendant contends the trial court abused its discretion in denying his request for a continuance to retain private counsel. Though defendant does not frame his argument in terms of the Sixth Amendment right to counsel, the opinions he cites do acknowledge 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.) The right to representation by counsel of choice, however, 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 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.) 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. 850, quoting People v. Rhines (1982) 131 Cal.App.3d 498, 506.)

Defendant contends there was an abuse of discretion here because he was diligent in his efforts (1) to secure counsel of his own choosing before the date of trial, and (2) to apprise the court of his wishes at the earliest possible time. The problem with this analysis, however, is that it fails to acknowledge that, by the time defendant made his request for continuance, the date for jury trial had been set for over a month and three pretrial conferences had intervened. Despite defendants early interest in retaining private counsel, he either delayed or, we must assume in the alternative, could not do so. Not only did he wait until the time to confirm his trial date before requesting a continuance, when he requested it, he did not request a particular amount of time; neither did he say that he had finalized arrangements to actually pay and retain private counsel. His offer to waive time served to confirm that a continuance could result in a substantial delay and, as we read the record, this occurred in a court that attempted to organize its calendar on the basis of early settlement and confirmed dates for trial.

We find no abuse of discretion under the circumstances of this case.

DISPOSITION

The judgment is affirmed.

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

^[1]Unless otherwise stated, all further statutory references are to the Penal Code.

^[2]We have not been provided with a reporters transcript of the hearing on March 17, 2006.