Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. VA094486, VA095320, VA094765, Patrick T. Meyers, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
In case No. VA094486, Gabriel Escobedo, also known as Guadalupe Gonzalez (defendant), appeals from the judgment entered following a jury trial resulting in his conviction of second degree robbery with a finding of the use of a firearm. (Pen. Code, §§ 211, 12022.53, subd. (b).) At sentencing, defendant entered into a plea bargain that disposed of the bifurcated prior conviction allegations in the above case (No. VA094486) and involved guilty pleas in two unrelated cases that were pending at sentencing, People v. Escobedo, Nos. VA095320 and VA094765. Defendant entered pleas of guilty in case No. VA095320, to the grand theft of personal property (§ 487, subd. (a)) and in case No. VA094765, to resisting an executive officer (§ 69). In each case, he admitted that he had a prior serious felony conviction that made him eligible for a five-year enhancement and sentencing pursuant to the “three strikes” law (§§ 667, 1170.12) and that he had two prior convictions for which he had served a separate prison term (§ 667.5, subd. (b)). As part of the plea bargain, the parties agreed to the imposition of an aggregate state prison term of 21 years eight months.
All further statutory references are to the Penal Code unless otherwise indicated.
At sentencing, the trial court imposed the promised term, consisting of a two-year lower term for the robbery, doubled pursuant to the three strikes law to four years, with a consecutive 10-year term for the use of a firearm, plus a consecutive five-year term for the prior serious felony conviction (No. VA094486) and two consecutive terms of one year four months respectively for the other two cases, Nos. VA095320 and VA094765.
As part of the plea bargain, the People agreed that they would not proceed on the findings of the section 667.5, subdivision (b), allegations and that those findings would be stricken pursuant to section 1385. Defendant filed a notice of appeal only from the judgment in case No. VA094486. During the plea bargain, defendant explicitly reserved his right to appeal any errors preceding his conviction of the robbery in case No. VA094486.
He contends that: (1) there is Ortiz-Courts error as the trial court abused its discretion by refusing to permit him to discharge his retained counsel on the eve of trial (People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz); People v. Courts (1985) 37 Cal.3d 784 (Courts)); and (2) his deputy public defender was constitutionally ineffective because he failed to request an Evans lineup (Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans)).
We affirm the judgment.
FACTS
At approximately 7:00 p.m. on February 26, 2006, defendant entered the Bell beauty salon that Graciela Navarro (Navarro) owned and wanted a haircut. Navarro agreed. After the haircut, defendant selected several hair products and a wallet that he claimed he wanted to purchase for his wife. Navarro put these items into a paper bag and told defendant that he owed her $68. In response, defendant pulled out a firearm and pointed it at her. He told her to add the money in her cash register to the items she had previously placed in the paper bag. He took Navarro’s wallet and her cellular telephone and left the salon. Navarro telephoned the police.
A Bell police officer responded. As the officer approached the salon, a female bystander told the officer that she had seen a man leaving the beauty salon driving a dark-colored pickup truck, possibly a Dodge Ram. The bystander handed the officer a piece of paper on which she had written a partial license plate number. The officer asked the bystander to wait as he contacted Navarro, but the bystander left the scene. Shortly after the robbery, Navarro selected defendant as the robber in a six-pack photographic identification procedure.
Bell Detective Terry Dixon testified that on March 17, 2006, he found defendant’s green Dodge pickup truck parked on the street near the Downey residence where defendant’s family lived. The detective had the truck impounded. Inside the truck, the detective discovered the paper bag containing the hair products stolen from Navarro.
At trial, defendant’s sister testified that the impounded Dodge truck belonged to defendant.
Defendant declined to testify and presented no evidence in defense.
DISCUSSION
I. The Motion to Discharge Retained Counsel
On the eve of trial, defendant asked the trial court to permit him to discharge his retained counsel. On appeal, he contends that the denial of his request to discharge retained counsel requires a reversal as the denial of his request amounted to an abuse of discretion and a denial of due process.
We disagree.
A. Background
The offense occurred in late February 2006. The preliminary hearing was held on June 27, 2006. On July 11, 2006, defendant was arraigned on the information.
The following proceedings were held in the master calendar court. Trial was set for August 30, 2006. On August 9, 2006, the trial date was vacated. On September 7, 2006, the trial was continued from time to time until December 14, 2006. On December 14, 2006, defendant’s trial counsel, a deputy Los Angeles County public defender, announced that he was ready for trial. That same day, retained counsel appeared on defendant’s behalf and indicated that he had been retained and could be ready to proceed to trial on January 22, 2007. The prosecutor objected “for the record” and asked that January 22, 2007, be designated as zero of 10 with a stipulation that the prosecution was entitled to a reasonable continuance.
On February 9, 2007, the trial court set a trial date of March 2, 2007. It told defendant and retained counsel that there would be no further continuances. On March 2, 2007, retained counsel filed a motion requesting an Evans lineup. (Evans, supra, 11 Cal.3d 617.) On March 2, 2007, the trial was trailed to March 9, 2007. On March 9, 2007, the trial court considered and denied the request for an Evans lineup. It then inquired of retained counsel, “What are we going to do now?” Retained counsel replied, “I guess we’re answering ready for trial.” The trial court inquired, “Seven of ten; right?” Retained counsel agreed. The trial court told counsel, “The last day will be Monday as ten of ten and we’ll order jurors . . . then we’ll send you out.” The trial court put the trial over without a time wavier to Monday, March 12, 2007.
On March 12, 2007, defendant asked the trial court to permit him to discharge his retained counsel. The trial court had the prosecutors step out of the courtroom and listened to defendant’s remarks concerning the motion.
Defendant explained that he had hired retained counsel to represent him during these criminal proceedings. Defendant said: “He’s a paid attorney; so therefore I assumed I would be able to get along with him, but if I am going to go to trial, I don’t think this is the right attorney for me to take this case to trial because we just don’t see eye-to-eye.” Defendant continued: “I’m facing a lot of time and have gotten opinions from my family as well, and they’re of the opinion that I should get another attorney; for the reason being I don’t get along with him and we argue a lot about certain things. I am Cuban. He is Cuban. I don’t know if it’s the blood in us. He has a strong character like I do. We tend to clash. I want to take this case to trial. I’m facing a lot of time, Your Honor, and the bottom line is I beg you to allow me to hire somebody else or get a—somebody else appointed by you or just somebody different . . . .”
The trial court replied: “You haven’t told me one reason. Personality doesn’t provide a reason to discharge [retained counsel]. So you need to tell me something so I could evaluate that; because . . . you’ve been charged in this case since July 11th of 2006. Today . . . is the last day for your jury trial. Jurors are waiting.”
Defendant asserted that he did not want to inconvenience the court or counsel. But he was not getting along with retained counsel, and he did not want retained counsel representing him during the trial. Defendant repeated that they did not get along or see “eye-to-eye.”
The trial court told defendant, “Well, you have to tell me your reasons, Sir.”
Defendant replied that he had already proffered a reason, and the trial court agreed that he had. It then inquired whether there were further reasons.
Defendant said, “I just feel I’m—I feel that he’s not going to defend me to the best of his ability. I know because I feel like there is something personal, you know, against me, like.”
The trial court said, “Any other reason, anything else?” Defendant “beg[ged]” the trial court to give him this opportunity. The trial court replied that “because you cannot get along with [retained counsel] on the day of trial is not a sufficient reason to remove [him] as your attorney. That is not sufficient.”
Defendant said: “Well, if someone were to give me a reason back in the tank, I would have gave you a better reason. I don’t want to lie, make something up either. I could come in here and just like I’m trying to be as honest as possible and maybe make a great—I’m not. I’m not going to run in here and run and drag on, Your Honor. I wish I could be more—is the D.A. here in the courtroom?”
The trial court indicated that all the prosecutors had left the courtroom. Defendant replied, “We’re trying to figure out a reason why we should give me an opportunity.” The trial court said, “What I’m telling you . . . Sir, is [that we are] on the day of trial and the reason, the only reason I’ve heard from you is ‘I could not get along with him personality-wise’; that as a matter of law is insufficient.”
The trial court inquired of retained counsel. Trial counsel replied that “All [he] could say . . . is I’m ready for trial.” The trial court inquired whether trial counsel had investigated the facts and the law in the case and whether he was ready to proceed to trial. Retained counsel replied, “I am.” The trial court inquired whether there was a “personality conflict” between him and defendant, and retained counsel replied, “There is.” It asked whether the personality conflict would affect retained counsel’s ability to zealously represent defendant. Retained counsel said, “I don’t think it will, but I think [defendant] thinks it will; that makes a big difference in his mind.”
The trial court said, “And, however, [the decision in People v. Durham (1969) 70 Cal.2d 171, 190], holds, and that is a Supreme Court case which I’m bound by, that the attempt to fire once retained counsel on the day of trial because of a disagreement with him is insufficient.”
Defendant asked, “What is sufficient? Could you tell me?” The trial court replied, “No. I’ve asked you for your reason.” Defendant asked to go off the record. The trial court denied the request and told defendant: “The law is what it is.”
The case was transferred to a trial court to select a jury. Later that day, the jury was sworn in, and the trial commenced.
B. The Relevant Legal Principles
“The right to the effective assistance of counsel ‘encompasses the right to retain counsel of one’s own choosing.’” (Courts, supra, 37 Cal.3d at p. 789.) Due process of law comprises a right to appear and defend with retained counsel of one’s own choice. (Id. at pp. 790–791.) The right to counsel of choice reflects not only a defendant’s choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain. (Ortiz, supra, 51 Cal.3d at p. 983.)
The court in Ortiz explained: “A nonindigent defendant’s right to discharge his retained counsel, however, 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]. As the court stated in Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613, the ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.”’ The trial court, however, must exercise its discretion reasonably: ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ [Citation.] [¶] While we do require an indigent criminal defendant who is seeking to substitute one appointed attorney for another to demonstrate either that the first appointed attorney is providing inadequate representation [citations], or that he and the attorney are embroiled in irreconcilable conflict [citation], we have never required a nonindigent criminal defendant to make such a showing in order to discharge his retained counsel.” (Ortiz, supra, 51 Cal.3d at pp. 983–984.)
Also, a trial court has discretion to grant a continuance to a defendant to retain new counsel. (Courts, supra, 37 Cal.3d at p. 790.) “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.]” (Id. at pp. 790–791.) In determining whether a trial court’s refusal to grant a defendant’s request for a continuance is “so arbitrary as to deny due process, this court ‘looks to the circumstances of each case, “‘particularly in the reasons presented to the trial judge at the time the request [was] denied.’” [Citations.]’ [Citation.]” (People v. Jeffers (1987) 188 Cal.App.3d 840, 850, quoting from Courts, supra, at p. 791.) The defendant has the burden of demonstrating an abuse of discretion. (People v. Jeffers, supra, at p. 850.)
Denying a proper request to discharge retained counsel is reversible error per se. (Courts, supra, 37 Cal.3d at p. 796; Ortiz, supra, 51 Cal.3d at p. 988.)
C. The Analysis
Defendant contends that the trial court abused its discretion because it addressed only Marsden considerations when it was required to apply the balancing tests from Courts and Ortiz to determine whether he should be allowed to discharge retained counsel. He asserts that because there was an abuse of discretion, he was denied due process and is entitled to a reversal.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
However, this court concludes that the record fails to support his claim. The case was a year old, and eight months had elapsed since defendant’s arraignment on the information. Once before, again on the eve of trial, defendant had substituted out his deputy public defender in favor of retained counsel. On the current occasion, defendant never notified the trial court that he was contemplating substituting out retained counsel, or that there were difficulties with their relationship. Instead, defendant sprung the request to discharge retained counsel on the very day of trial and at the eleventh hour with the knowledge that trial was scheduled to begin that very morning. Implied in the request to discharge retained counsel was the need for a continuance. The trial court inquired of defendant and his counsel about the reasons for new counsel. Defendant proffered nothing except the existence of a personality conflict. The trial court gave defendant an ample opportunity to provide the trial court with any countervailing interests that might militate toward the discharge and a continuance, but defendant had none to offer. Considering the lateness of the request, the trial court was justified in concluding that on balance, the interests in proceeding with the prosecution in an orderly and expeditious basis required a denial of the motion. (Ortiz, supra, 51 Cal.3d at p. 984; Courts, supra, 37 Cal.3d at pp. 790–791.)
Defendant argues that the trial court’s reliance on the decision in People v. Durham (1969) 70 Cal.2d 171, 190 (Durham), demonstrates an abuse of discretion because that decision’s citation shows that the trial court employed Marsden criteria to deny his request.
In Durham, on the day the trial was to commence, defendant Robinson informed the trial court that he wanted to discharge his retained counsel because they disagreed on trial tactics. Robinson said that he wanted counsel appointed for him or he would proceed in propria persona. (Durham, supra, 70 Cal.2d at p. 190.) On appeal, Robinson claimed a denial of his right to counsel of his choice. On review, the Durham court observed that in order to grant Robinson’s request, the trial court also had to order a continuance so that a new attorney might prepare for trial, or it had to permit Robinson to proceed pro se. It held that appointing new counsel for defendant “would have resulted in a disruption of the orderly process of justice unreasonable under the circumstances of the particular case.” (Durham, at p. 191.) As to the request to proceed in propria persona, the court said that such a choice was “equally unsatisfactory” because after an examination by the trial court into the defendant’s capacity for self-representation, allowing the defendant to proceed pro se in the circumstances would have resulted in significant prejudice to the defendant. (Durham, at p. 191.)
The Durham decision predates the decisions in Faretta, Courts, and Ortiz. (Faretta v. California (1975) 422 U.S. 806.) Nevertheless, on the issue of the reasonableness of granting a last minute continuance to discharge retained counsel, the decision is on point. The Durham decision explicitly requires a trial court to focus on the very criteria that defendant claims the instant trial court failed to consider in denying his motion: whether granting defendant’s request disrupted the orderly processes of justice. (Ortiz, supra, 51 Cal.3d at p. 984; Durham, supra, 70 Cal.2d at p. 191.) Contrary to defendant’s claim, the record shows that the trial court employed the proper balancing tests required by Courts and Ortiz. In this context, the so-called exclusive Marsden inquiry was nothing more than an effort by the trial court to give defendant the opportunity to persuade it that substantial prejudice would result if it denied his request.
II. Trial Counsel Ineffectiveness
Defendant contends that his deputy public defender was constitutionally ineffective because he failed to request an Evans lineup prior to the preliminary hearing.
We disagree.
A. Background
The Office of the Los Angeles County Public Defender was appointed to represent defendant prior to the preliminary hearing. A deputy public defender represented defendant until December 14, 2006, when defendant proceeded with his retained counsel. Thereafter, on March 9, 2007, retained counsel made a motion for an Evans lineup, which was denied. In denying the motion, the trial court explained that although it concluded that the identification was a material issue in the case, given the evidence in the case, there was no reasonable likelihood of a mistaken identification.
B. The Relevant Legal Principles
1. The Criteria for an Evans Lineup
Recently, in People v. Farnam (2002) 28 Cal.4th 107, 183, the court explained: “In Evans v. Superior Court (1974) 11 Cal.3d 617, 625 . . ., we concluded that ‘due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.’ (Fn. omitted.)”
“[W]hether fundamental fairness requires a lineup in a particular case [is a determination] which necessarily rest . . . within the broad discretion of the magistrate or trial judge. [Citations.]” (Evans, supra, 11 Cal.3d at p. 625.)
“[A] motion for pretrial lineup should be presented to the ‘trial judge or magistrate’ and ‘should normally be made as soon after arrest or arraignment as practicable.’ [Citations.] The value of a pretrial lineup is substantially diminished once a preliminary examination has been conducted and a direct confrontation between a defendant and his accusers has occurred.” (People v. Baines (1981) 30 Cal.3d 143, 148.)
2. Constitutionally Ineffective Trial Counsel
“‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
C. The Analysis
Defendant argues that his deputy public defender’s failure to request an Evans lineup demonstrates error because until the preliminary hearing, the victim did not see defendant in person. Also, before the haircut and the robbery, the victim was not acquainted with defendant. At the preliminary hearing, the victim acknowledged that she was frightened during the robbery. Subsequently, the victim told a police officer that the robber was six feet tall, a description that failed to conform to his actual height. Defendant asserts that if made, his Evans motion would have been granted, and there exists in the record no tactical reason for the deputy public defender to have failed to make that request.
“‘If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]’” (People v. Abilez (2007) 41 Cal.4th 472, 493, fn. 3.) Whether to demand a pretrial live lineup is inherently a matter of trial tactics. (People v. Blomdahl (1993) 16 Cal.App.4th 1242, 1248.)
This is not the sort of case in which counsel normally requests an Evans lineup. Defendant was a walk-in, who requested a haircut and then robbed his victim. The victim had an adequate and nonstressful opportunity to observe the robber’s appearance and demeanor. Within days of the robbery, the victim made her out-of-court identification in a photographic lineup, and she quickly identified defendant. What the victim remembered about the robbery was that her assailant was about five feet six inches or five feet seven inches tall, several inches taller than she was. At the preliminary hearing, without hesitation, she identified defendant.
Defendant has not made a persuasive claim of ineffective trial counsel. In this instance, requesting an Evans lineup would have created a substantial risk that the lineup would merely result in further incriminating evidence indicating that defendant was the robber. As the record demonstrates a satisfactory explanation for the claimed omission, defendant’s contention fails.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.