Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. PA059798 Harvey Giss, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer, and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
As appellant Abel Castaneda stood on the sidewalk, a police officer illuminated him with the spotlight of the patrol car. Appellant ran off, throwing down a baggie that contained heroin. The officer and his partner retrieved the baggie, chased appellant, and arrested him. Appellant was convicted of possession of a controlled substance, heroin. Pursuant to Proposition 36, he received a suspended sentence and three years of formal probation, with various conditions.
Appellant contends (1) the trial court abused its discretion when it refused to grant a pretrial continuance that was requested by the fourth deputy public defender assigned to the case, and (2) he was denied his constitutional right to the effective assistance of counsel because none of his four successive counsel from the public defender’s office filed a timely motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
On the particular facts of this case, we find no error and affirm.
DISCUSSION
1. Denial of the Continuance
A. The Record
The crime occurred on August 15, 2007. Appellant was out on bail throughout the proceedings below.
On November 2, 2007, Deputy Public Defender Andrea Gilliam represented appellant at the preliminary hearing, on behalf of Deputy Public Defender Nancy Pogue.
The felony information was filed on November 13, 2007.
On November 16, 2007, Pogue appeared with appellant for the arraignment. That hearing was conducted by Judge Harvey Giss, who presided at most of the pretrial proceedings below.
Pogue appeared as appellant’s counsel when the case was continued on December 12, 2007.
On January 24, 2008, with Pogue present, the pretrial conference and trial setting were continued to February 13, 2008, so that appellant could “consult another attorney and... explore his options of Proposition 36 or drug court.”
On February 13, 2008, with Pogue in the courtroom, the case was continued so that appellant could hire private counsel. Appellant was admonished that this would be his last continuance for that purpose.
On February 27, 2008, with Pogue present, the court found good cause to continue the matter to March 26, 2008.
On March 26, 2008, instead of Pogue, appellant appeared with a different deputy public defender, Robert Kayne. The case was continued so that Kayne could “familiarize himself with the case.”
On April 29, 2008, appellant appeared again with Kayne. The case was continued “for defendant’s counsel to clear his calendar for trial.”
On May 27, 2008, appellant appeared with a different deputy public defender, Christopher Sharpe. The trial was trailed to June 2, 2008, as “day 06 of 10.”
On June 2, 2008, Sharpe was present but appellant was not. A bench warrant was issued and held.
On June 3, 2008, appellant was in the courtroom with Sharpe. Sharpe was now appearing for a different deputy public defender, Marya Shahriary, who had been assigned to the case. The bench warrant was quashed. So that Shahriary could be present, the jury trial was set for June 9, 2008, as “day 00 of 10.”
On June 9, 2008, Shahriary and appellant appeared together in the courtroom for the first time. Shahriary continued to represent appellant for the remainder of the proceedings below. The trial was trailed to June 17, 2008, as “day 08 of 10.” The minute order shows that Shahriary was ordered to file her motion pursuant to Penal Code section 1538.5 (the 1538.5 motion) by the close of that day. She did so.
Subsequent code references are to the Penal Code unless otherwise stated.
The 1538.5 motion sought to suppress the heroin recovered by the two officers. It provided this summary of the police report:
“On August 15, 2007 two officers report they were driving in their marked police vehicle when they observed Abel Castaneda look[ing] at them. They report that they illuminated the area where Mr. Castaneda was and then watched as he threw a piece of clear plastic onto a driveway and then ran away. The officers chased Mr. Castaneda to a next door piece of property where they found him trying to hide in a garden shed and then placed him into custody.”
The points and authorities that accompanied the 1538.5 motion named various grounds for suppressing evidence, without naming the specific ground that applied here.
On June 11, 2008, two days after she filed the section 1538.5 motion, Shahriary filed a motion pursuant to section 1050 (the 1050 motion). The 1050 motion sought to continue the trial to July 8, 2008, for further defense preparation. It explained that a Pitchess motion needed to be prepared, filed and litigated before the defense could announce ready for trial.
Shahriary’s declaration in support of the 1050 motion stated:
“I was reassigned this case and met Mr. Castaneda for the first time on June 9, 2008. The case had been handled by two excellent attorneys in our office, and, as a result, had been very well prepared. [¶] On June 8, 2008 I obtained information from Mr. Castaneda which was not previously known or considered by my two colleagues who handled the case before me. [¶] As a result of this information I must litigate the 1538.5 issues, file and litigate a Pitchess motion and conduct other defense preparation. [¶] Upon further review of this case, although the 1538.5 motion has already been filed, I have realized that it will be necessary to interview any Pitchess witnesses on the issue of officer credibility, if the motion is heard and granted, before litigating the 1538.5 motion. [¶] The defense regre[ts] the potential inconvenience to the court, the prosecution and the witnesses, however we make this request for a continuance only because we believe it is absolutely necessary for the proper preparation and presentation of the defense in this matter.” (Italics added.)
On June 13, 2008, Deputy District Attorney Kareen O’Brien filed opposition to the 1538.5 motion. The opposition argued that the motion was untimely and the delay was unjustified, as appellant had appeared with a member of the public defender’s office on at least 15 occasions during the 10 months that he had been represented by that office. Specifically, the public defender’s office was appointed when appellant was arraigned on August 21, 2007, four days after the action was filed. Following numerous continuances at appellant’s request, he was held to answer at the preliminary hearing on November 2, 2007. He was arraigned on the felony information on November 16, 2007. The case was thereafter calendared for trial on January 11, March 26, April 29, May 27, and June 17. On each of the trial dates, the district attorney’s office issued subpoenas and the witnesses “stood ready to testify.” There also had been multiple pretrial conferences and jury trial conferences.
The opposition also argued that the 1538.5 motion was untimely because subdivision (i) of section 1538.5 requires 10 days of notice, but the motion was made on June 9, 2008, and the trial was set for June 17, 2008. Section 1538.5, subdivision (h), provides exceptions to the 10-day notice rule, if there was no previous opportunity to make the motion or if the defendant was not previously aware of the grounds for the motion, but those exceptions did not apply. Moreover, under California v. Hodari D. (1991) 499 U.S. 621, there was no basis for a 1538.5 motion, as appellant discarded the evidence before he was detained.
Section 1538.5, subdivision (h) provides: “If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial.”
On June 13, 2008, Shahriary filed a motion for pretrial discovery under Pitchess, supra, 11 Cal.3d 531, and Brady v. Maryland (1963) 373 U.S. 83. Her attached declaration summarized the facts from the police report, which was also attached to the motion. Those facts were that Officers Doomanis and Jacobik were driving in a marked patrol car when they saw appellant standing on the sidewalk. As the officers illuminated the area, appellant turned and ran east, dropping a piece of clear plastic. The officers chased him and took him into custody after they found him hiding in a shed. Officer Jacobik picked up the piece of plastic. It appeared to contain heroin, and that fact was confirmed by subsequent lab tests.
Shahriary’s declaration continued:
“I am informed and believe that these officers have written a false police report and lied under oath at [the] preliminary hearing. Mr. Castaneda was walking out of the residence to go to a store. He was just minding his own business when the police in a marked police car drove up next to him and leaped out of their car and ran at him. He panicked and ran away. The cops caught him and beat him. The police lied when they claimed they saw Mr. Castaneda drop drugs as he ran away. The police actually found the drugs on the ground and without having seen where they came from made up the false story that they had seen him drop the drugs. The officers have fabricated the probable cause to chase, detain, and subsequently search Mr. Castaneda.”
On June 17, 2008, Judge Giss denied the 1538.5 motion, the 1050 motion, and the Pitchess motion. The case was then assigned to Judge Burt Pines for trial.
The reporter’s transcript of the June 17, 2008 proceedings shows that the court first tentatively ruled that there was no basis for a 1538.5 motion, as the officers simply retrieved evidence that appellant threw away. Shahriary then explained that appellant had given her a version of the incident that differed from the version in the police report, so there was an issue of officer credibility that could not be resolved until the officer was cross-examined. Following further argument, the court denied the 1538.5 motion without hearing evidence, on the ground that there was no search.
In doing so, the court told Shahriary: “And, I don’t know, your office seemed to have sat on this matter for over six months. I’m not saying -- when I say your office, I mean very specific[ally], I’m not blaming you, I don’t know when you got the case.... Whether you sat on it time-wise or whether someone else sat on it and you inherited a really bum situation is another story. I only say that because everybody is concerned about their reputation and [I do not] want it to look like they did something inappropriate or didn’t do what they were supposed to do. So I’m not making any judgment or call on that.”
Proceeding to the 1050 motion and the Pitchess motion, the court complained, “[T]he Pitchess motion is late [and] it’s being filed piecemeal. And I’m not going to allow a Pitchess motion at this late hearing, seven months after the arraignment, when your office could have filed it [sooner]. When you inherit the case with the standing that it’s in, all rulings, motions, et cetera, blown deadlines and so forth you are straddled with whether it’s your fault or not.”
Shahriary responded that the court had discretion to grant the motion, even if it was late, but if the court denied the 1050 motion, the Pitchess motion would be moot. The court responded, “Well, this matter is a little old, and we have announced -- everyone has announced ready, today is eight of ten, so I’m going to send it out. I will find a court for it. [¶] So your motion to proceed on a Pitchess motion is denied. That takes 21 days notice to the respondent in a situation like that. And it could have been filed a long time ago. It could have even been filed when you filed the 1538.5 [motion], at least to get the time running. So I feel that this is a piecemeal method of gaining undeserved continuances. I’m going to deny the motion for Pitchess. And the motion under [section] 1050 is predicated on filing a Pitchess motion, and so that motion is denied. And it seems to be an incredibly simple case. Your office has had seven months to get ready for an alleged cross case [sic] with an abandonment of property. That seems to be the only issue. There’s been no declaration alleging otherwise.”
Shahriary replied that she learned when she first met with appellant on June 9 that there was a basis for a 1538.5 motion. Prior to that time, her “very able colleagues” evaluated and handled the case “in a very appropriate ma[nn]er for what they had at that time.” The court responded that a Pitchess motion was the “first thing” that a defense counsel would file after an interview with the defendant showed inappropriate police behavior. The court refused to believe that appellant had not discussed that subject with his previous counsel. Shahriary responded that she did not think her predecessors failed to do a good job. She could not divulge what appellant told her without violating the attorney-client privilege, but she realized on June 11 that what appellant told her on June 9 meant there was a basis for a Pitchess motion. She had discussed the problem with her supervisor. She thought she “should have realized” the need for a Pitchess motion on June 9, but she wrote the 1050 motion on June 11, as soon as she realized the problem. The judge told Shahriary, “Don’t be hard on yourself,” as three other deputy public defenders had worked on the case. The hearing then ended.
B. Analysis
Appellant argues that the trial court should have granted the 1050 motion to give Shahriary the time she needed to file and litigate a Pitchess motion that “undoubtedly would have been granted.”
“The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time.... It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice.” (§ 1050, subd. (a).)
“Continuances shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).)
“The trial court has broad discretion to determine whether good cause exists to grant a continuance.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037; see also People v. Roldan (2005) 35 Cal.4th 646, 670.)
On appeal, the denial of a continuance is reviewed for abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at p. 1037.)
When Shahriary first appeared with appellant on June 9, 2008, appellant had previously been represented for many months by three other deputy public defenders, none of whom filed either a 1538.5 motion or a Pitchess motion. The case was already set for trial on June 9, 2008. Shahriary filed the 1538.5 motion that day, the 1050 motion two days later, and the Pitchess motion two days after that. Her declaration for the 1050 motion indicated that the 1538.5 motion and Pitchess motion were necessary because on June 8, 2008, the day before Shahriary first met appellant, appellant provided information that “was not previously known or considered by” his previous counsel.
“A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” (People v. Jenkins, supra, 22 Cal.4th at p. 1037, italics added.)
We presume the information appellant gave Shahriary included the version of the incident that Shahriary stated on information and belief in her declaration for the Pitchess motion. According to that version, appellant never possessed or threw the heroin, and the officers fabricated the evidence. Appellant could have said the same thing to the three previous deputy public defenders who represented him, when he talked with them about what happened prior to his arrest. Instead, there is no evidence that he provided any information that would provide a basis for a Pitchess motion until he spoke with Shahriary, after the case had already been set for trial.
We note that the defendant in Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1017, provided a similar version of what happened prior to his arrest.
Appellant argues, “[I]t is grossly unfair to force appellant to bear the prejudice of the prior public defenders’ deficient performance.” That is not, however, what the record shows. According to Shahriary, her predecessors did nothing wrong, and there was no basis for a Pitchess motion until she herself spoke with appellant. Appellant was present at the time of the incident, and he must have discussed it with Shahriary’s predecessors. If the officers fabricated the evidence, appellant should have told that to the deputy public defenders who represented him during the many months before Shahriary was assigned to the case.
We therefore find no abuse of discretion in the denial of the 1050 motion.
2. Ineffective Assistance of Counsel
Appellant also contends that he was denied effective assistance of counsel because the public defender’s office failed to file a timely Pitchess motion.
To succeed on a claim of ineffective assistance of counsel, a defendant must show both that (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); see also People v. Benavides (2005) 35 Cal.4th 69, 92-93.) “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” (Strickland, at p. 688.) Here, appellant has not shown that the performance by the public defender’s office was deficient.
“Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” (Strickland, supra, 466 U.S. at p. 691.) The public defender’s office cannot be faulted for failing to make a timely Pitchess motion, as appellant supplied no information that would support such a motion until he spoke with Shahriary, who expeditiously filed such a motion once she was aware of grounds for it.
Appellant’s briefing relies heavily on Kimmelman v. Morrison (1986) 477 U.S. 365. In Kimmelman, defense counsel’s unreasonable failure to request pretrial discovery was followed by an untimely motion to suppress evidence during the trial. Here, in contrast, appellant has not shown that the performance by any member of the public defender’s office “fell below an objective standard of reasonableness.” (Id. at p. 375, citing Strickland, supra, 466 U.S. at p. 688.)
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, ACTING P. J. MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 1538.5, subdivision (i) provides, in pertinent part: “If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing,... the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time.” (Italics added.)