Opinion
A130622
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. ANJA HAECKELQUALLS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C158025)
I.
INTRODUCTION
Appellant Anja Haeckelqualls appeals from an award of victim restitution after she pled no contest to being an accessory to a felony (Pen. Code, § 32) and was granted probation. She claims that (1) she could not be responsible for the victim's injuries because the conduct that formed the basis for her plea occurred after the injuries were sustained; (2) the trial court abused its discretion in awarding lost wages and a sum for diminished earning capacity without articulating the method used in calculating these damages; (3) the trial court abused its discretion in denying her motion to continue the restitution hearing because of the unavailability of a material witness; and (4) her trial counsel provided ineffective assistance.
Appellant is also referred to in the record before us as Anja Haeckelquall, Anja Haeckel-Qualls, and Anja Qualls. We note this discrepancy, and have adopted the usage of "Haeckelqualls" from the probation report that is included with the record, which was prepared by the Alameda County Probation Department and filed with the superior court on June 3, 2009.
All subsequent undesignated statutory references are to the Penal Code.
We conclude there were no errors committed by the trial court and that appellant has not satisfied her burden of proving ineffective assistance of counsel on appeal. Accordingly, we affirm.
II.
PROCEDURAL AND FACTUAL HISTORIES
A. General Procedural Overview of Case
An information was filed by the Alameda County District Attorney's Office on April 1, 2008, charging appellant with second degree robbery (§ 211) and possession of marijuana for sale (Health & Saf. Code, § 11359). On April 21, 2009, pursuant to a negotiated disposition, appellant entered a plea of no contest to a violation of section 32, being an accessory after the fact to the robbery. In return, the charges in the information were dismissed. The matter was continued for sentencing.
Sentencing took place on June 4, 2009. After hearing from the victim, Vincent Flood, and his wife, Cynthia Johnson, the court suspended sentencing and granted appellant five years probation, with credit for time already served. Restitution to the state victim compensation board in the amount of $2,310.92 was ordered, with the matter of further restitution reserved for a later hearing and determination.
Restitution hearings took place on July 30, 2010, and October 8, 2010. At the conclusion of the October hearing, the trial court ordered appellant to pay restitution to Flood in the total amount of $73,390.95, consisting of $23,245.95 in medical bills, $32,000 in lost earnings, $16,000 in diminished earning capacity, $1,615 in property damage, and $530 for medical copayments. The court also ordered appellant to pay $1,459.50 restitution to Johnson for lost earnings, and an additional $1,384.99 to the state victim compensation board.
This timely appeal followed.
The facts giving rise to this prosecution are undisputed, and we take this summary from the transcript of the preliminary hearing held on March 20, 2008.
Flood was working at Habitats Collection, a retail furniture and decorative arts store on Ashby Avenue in Berkeley, on December 22, 2007. He left his place of employment at approximately 6:00 p.m. with a coemployee, David Augustine, and the store owner, Haunz Peter Gaspers. The three separated shortly after leaving. When Flood reached the nearby Walgreen's parking lot, he saw two men who looked at him and gestured. He became concerned and changed direction, walking up Ashby Avenue, which was a busier street. He saw the two men again. Flood changed direction once more. He reached the intersection of Acton Street and Ashby Avenue, where he was grabbed from behind.
Flood broke away and ran into the middle of Ashby Avenue, raising his hands to get attention. He was carrying a duffel bag containing two cameras, some speakers for his computer, and articles of clothing. He was then hit in the forehead with a gun. The next thing he remembered was waking up in the hospital 15 or 16 hours later. He had been carrying about $900 in cash in his wallet, his cell phone, keys, and two checks in an unknown amount, all of which were taken by the assailant in addition to the items from the duffel bag.
Since the incident he still has pain, particularly in his right shoulder. He has a nasal drainage problem that continues, and constant "dramatic[]" tearing of his eye and slight swelling of his eyebrow, which sometimes "impedes" his vision. Both eye sockets were broken and he had a cracked rib. His nose was either broken or cracked as well.
Flood knew appellant from the store. Appellant had been the store manager, but she stopped working there sometime in October 2007 shortly after Flood became the general manager in August. While the two started out having a cordial relationship, that changed over time. Appellant became more difficult to work with, and she was demanding money, sometimes taking it from the store. She also started making threats, and Flood was afraid of her.
The owner was rarely there as he lived outside of the country. Even though she stopped working in October 2007, appellant would come to the shop regularly with Jill Maier, the owner's former business partner. During these visits to the store, appellant and Maier appeared to be making an inventory. Appellant was hostile and angry because she believed the owner owed her money.
At some point the locks on the shop were changed and Flood was locked out of the store by appellant and Maier, who claimed possession under a different business name. Appellant had come to the store and, referring to the fact that Flood had reopened the store after the locks were changed, said to him, "I can't believe you've done this. You're going to regret it."
When Flood arrived at the store one day in November 2007, he saw appellant and Maier were inside rummaging through the office. When appellant failed to respond to Flood's telephone calls to the store, he found another padlock nearby and used it to lock the two inside the store. He then left to go home and call the owner. When he arrived home he received a call from the Berkeley Police Department advising him that it was wrong to lock appellant and Maier inside the store, and that he should immediately remove the lock. He then went back to the store and unlocked it.
After Flood was assaulted and robbed on December 22, 2007, David Augustine was interviewed by Berkeley police. He told the investigating officer that after he and Flood left the store on the evening of December 22, he saw appellant driving her silver sedan within about two blocks of where the incident took place. The officer later confirmed that appellant's vehicle was a silver Infinity with the license number 4CNY420. Appellant's vehicle was located, stopped, and searched. Drying blood was found on portions of the passenger side front seat and on the passenger floor area. A revolver was found under the driver's seat. There was oily or muddy material on part of the license plate; the 4 and letter C were clear, but the NY and 42 had smears and residue on them.
Appellant was interviewed. She admitted being near the crime scene on December 22, 2007, and having been seen by Augustine. She claimed that Flood had chased her car with a Volvo while she was in the area. When questioned about the blood found in her car, she said it was probably her "kid's blood."
Police also interviewed Sasan Ehaie, who reported that he was near the intersection of Acton Street and Ashby Avenue on December 22, 2007, when someone suddenly ran into the street while being chased by two suspects. The suspects began beating the man, knocking him to the ground, and continuing to beat him. They then walked calmly from the scene. The two walked up to a late 90's silver or gold four-door Infinity, and got into the vehicle. There was a female driving the car. They then drove away at a high rate of speed. Ehaie got into his white Volvo and tried to follow the Infinity. The license number of the Infinity had a 4, a C and a W in it, but the rest was obscured by black material.
Ehaie was shown a booking photo lineup. He picked appellant's photo, along with another photo of a female, as possibly being the driver of the Infinity.
C. Restitution Hearing
Flood testified at the restitution hearing that the prosecution's restitution summary, submitted to the court as part of its bench brief, accurately summarized his damages, with the exception that it did not include damage to the clothing he was wearing at the time of the crimes against him. The damages outlined in the restitution summary included medical expenses totaling $23,245.95, deductibles and medical copayments of $530, lost wages and commissions totaling between $22,500 and $43,750, property damage of $1,615, and diminished earning capacity of $19,240.
At the time of the crimes on December 22, 2007, Flood was earning about $1,000 per week at the store. He also earned commissions of about $250 per week. Although he went back to work part time at the store after the crimes until it closed, he was never paid for that time. The business was forced to close about 18 weeks after the crimes because of appellant's continuing misconduct.
Flood was unemployed for a period of eight months following the crimes. He looked for work but was unable to find any either because of his appearance from his injuries, or from the physical disability resulting from his injuries. In addition to a high school diploma, Flood attended the University of Massachusetts for three and one-half years. He held jobs over the years as a musician (guitar), painter, and as a restorer of antique furniture.
The first job Flood found after the store closed was with the United States Census Bureau. He earned gross wages of $880 per week, which was about $370 per month less than he earned at the antique shop. Thus, over the course of one year, his loss in earning capacity was estimated to be $19,240.
At the conclusion of the hearing, the court ordered appellant to pay restitution representing $23,245.95 in medical bills, $530 in copayments, and $1,615 in property damage. More pertinent to the issues raised by appellant, the court stated it had to make "rough determinations" concerning lost wages and commissions, and restitution in the amount of $32,000 for lost wages was ordered. As to diminution to Flood's earning capacity resulting from his injuries, the court stated it would "fall back on to the rough estimates again for a total of $16,000," for total restitution to Flood of $73,390.95."
After testimony ended, the court denied appellant's request to continue the hearing because of the unavailability of a witness. The court's denial has been asserted as error on appeal and is discussed separately in this opinion.
Restitution of $1,459.50 was awarded to Flood's spouse, Johnson. That award is not challenged on appeal.
III.
LEGAL ANALYSIS
A. There Was No Error in Awarding Restitution Without a Harvey Waiver, Because Appellant's Plea to Being An Accessory Was Transactionally Related to the Crime (Robbery) Which Caused the Victim's Losses
As noted, although originally charged with second degree robbery, appellant ultimately pled no contest to being an accessory after the fact to the robbery under section 32. That section imposes criminal liability on "[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony." Thus, the conduct to which appellant pled no contest necessarily occurred after the robbery took place. By then, the assault and theft of property from Flood had already occurred.
Section 1202.4, subdivision (f), states in material part: "Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. . . ." (Italics added.)
From these statutes appellant argues that she is not responsible for Flood's losses because restitution under section 1202.4 can only be awarded where the loss results from the defendant's conduct, and the conduct for which she has criminal liability under section 32 occurred after Flood's losses. We review an award of restitution for an abuse of discretion, but there must be substantial evidence to support a finding that a claimed loss was a result of a defendant's criminal conduct. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045-1046, 1048; People v. Baker (2005) 126 Cal.App.4th 463, 468-469.)
In People v. Harvey (1979) 25 Cal.3d 754 (Harvey), our Supreme Court held that a negotiated plea including the dismissal of a count contains "the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Id. at p. 758.) The "contrary agreement" has come to be known as a "Harvey waiver." Thus, a "Harvey waiver permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted." (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.) By statute, the principle extends to restitution orders as well.
Section 1192.3, subdivision (b) provides: "If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, as described in this section, the court shall obtain a waiver pursuant to []Harvey[, supra,]25 Cal.3d 754 from the defendant as to the dismissed count." (Italics added.)
However, as respondent correctly points out, there was no need for a Harvey waiver because the dismissed count (second degree robbery) was "transactionally related" to the accessory offense to which appellant pleaded no contest. (Harvey, supra, 25 Cal.3d at p. 758, italics omitted; see People v. Gaskill (1980) 110 Cal.App.3d 1, 3-5 [no Harvey error where defendant pleaded guilty to possession of illegal gun in exchange for dismissal of assault with a deadly weapon charge and court imposed upper term based in part on dismissed assault charge].)
There is no doubt that the accessory charge to which appellant pled no contest was transactionally related to the robbery. Not only was she charged with robbery originally, but appellant admitted a connection between her conduct and the robbery when her plea was entered. During that plea colloquy, the following exchange took place:
"THE COURT: Do you want to accept the plea because you realize that you did have some factual, criminal factual involvement, in this case, Count One involving the [r]obbery; that you, as a lesser-included, you had some criminal factual involvement that would entitle you to plead no contest to that lesser charge? Is that why you want to accept the plea, because you agree you had some criminal factual involvement?
We agree with appellant that the accessory charge to which she pleaded no contest is not a lesser included offense to robbery and, contrary to respondent's contention, the fact that it was characterized as such below does not change the law on this issue.
"[APPELLANT]: Yes.
"THE COURT: Are you clear about that in your own mind?
"[APPELLANT]: Yes."
"..........................................
"THE COURT: Do you feel that you're innocent of any charges relating to that Count One? Do you feel you're completely innocent? Because that's what you said this morning. You said I'm innocent. That's why
"[APPELLANT]: No, no, no."
Therefore, even absent a Harvey waiver, restitution was proper. In reaching our conclusion we find People v. Woods (2008) 161 Cal.App.4th 1045, a case relied on by appellant, to be distinguishable. In Woods, the defendant was not charged as a principal or as an aider and abettor to murder, but was convicted as an accessory after the fact by virtue of the allegation that he took the murder weapon from the principal immediately after the murder was perpetrated. (Id. at p. 1048.) As a result of that conviction he was sentenced to state prison. The restitution order was reversed because of the lack of any "nexus" between the defendant's conduct and the loss to the murder victim's family.
Of course, here there was no conviction after trial, but a plea entered, thereby bringing Harvey into play and the exception for "transactionally related" offenses. Also, unlike Woods, appellant was originally charged as a principal in the robbery, and there is an admitted, direct relationship between that crime and the accessory charge.
B. Alternatively, Restitution was Properly Awarded As A Condition of Appellant's Grant of Probation Under Section 1203.1
Appellant acknowledges that both sections 1202.4 and 1203.1 are applicable to the restitution order made in this case, although she claims that is it unclear under which section, or under both, the trial court imposed restitution.
Section 1203.1, subdivision (b) specifically authorizes the payment of restitution as a condition of probation. As stated in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent),"an order for restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent to future criminality [citation] . . . ."
Unlike a criminal sentencing, when sentencing is suspended and the defendant is granted probation, restitution need not be limited to the transactions or amounts directly flowing from the criminal acts of which a defendant was actually convicted. (Lent, supra, 15 Cal.3d at p. 486.) In Lent, the defendant had been charged with two counts of grand theft involving a scheme of conduct affecting the same victim. The trial court ordered payment of victim restitution as a condition of probation in the total amount of the two losses added together. The California Supreme Court upheld a probation condition that ordered the defendant to pay victim restitution for funds allegedly taken in a related criminal charge, even though he was acquitted of one charge at trial.
The Supreme Court reaffirmed Lent in People v. Carbajal (1995) 10 Cal.4th 1114. There the defendant pled no contest to a hit and run. The court held that it was within the trial court's discretion to condition probation on payment of restitution to the owner of property damaged in the accident from which defendant had unlawfully fled, although the damage was caused by the accident itself and not by his having fled the scene. The court observed that "[u]nder certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting from a conviction (People v. Miller [(1967)] 256 Cal.App.2d [348,] 355-356), by conduct underlying dismissed and uncharged counts (People v. Goulart (1990) 224 Cal.App.3d 71, 79) . . . , and by conduct resulting in an acquittal ([Lent], supra, 15 Cal.3d at p. 483.)" (People v. Carbajal, supra, 10 Cal.4th at p. 1121.)
In discussing the distinction between the discretion in awarding restitution when a defendant is sentenced, and the broader discretion in setting the amount of restitution as a condition of probation, the court in People v. Woods, supra, 161 Cal.App.4th 1045, cited Carbajal: "This limitation does not apply in the context of grants of probation. 'California courts have long interpreted the trial courts' discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], and by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation].' (People v. Carbajal[, supra,]10 Cal.4th [at p. 1121 . . . .) However, when a court imposes a prison sentence following trial, section 1202.4 limits the scope of victim restitution to losses caused by the criminal conduct for which the defendant sustained the conviction." (People v Woods, supra, 161 Cal.App.4th at p. 1050.)
Not only did appellant admit her complicity in the robbery when she pleaded no contest to violating section 32, but at sentencing when she was granted probation, appellant acknowledged that as a result of her plea, it was the court's intention to make her financially responsible for all losses resulting from the robbery:
"THE COURT: I'm certainly going to order that amount [$2,310.92 to the victim compensation board]. There's a claim from Mr. Flood in excess of $24,000 at this time. I understand there's further surgeries that are coming, there may be more restitution. You are going to be legally responsible for whatever the Court attaches to that. So whatever is attributable to this event you are legally responsible.
"So you took the position in the probation report that you didn't actually put your hands on him so you shouldn't have to pay for anything. And that's not the way that it works, and I'm letting you know that. If he can demonstrate that these lost wages or medical expenses or anything else that's related to this injury, you are responsible for that restitution. To the extent that there are things that have gotten added in there that you are not responsible for, you won't be required to pay restitution on those things. Do you understand?
"[APPELLANT]: Yes."
Under the law and facts of this case, it was proper and well within the discretion of the trial court to make an award of restitution.
Appellant also argues it was error to subject her to a restitution order without an opportunity to refuse probation because the order's terms were too onerous. This exchange makes it clear that appellant was well aware that a sizeable restitution order would be made as a condition of her probation. Also, appellant's repeated reference to the need to avoid custody in order to take care of her young daughter, undermines any argument that she would have rejected probation based on the potential restitution order. Certainly, no such argument was made when restitution ultimately was ordered.
C. Objections to the Methodology of Calculating Restitution for Lost Wages and Diminished Earning Capacity Have Been Waived by the Failure to Object in the Trial Court
Appellant alternatively challenges the court's restitution award of $48,000 for lost wages and diminished earning capacity arguing that the court abused its discretion by using "rough determinations" in making its award. While she acknowledges that the court is free to make an award for losses likely to be incurred after the restitution hearing date, appellant contends the law requires that in so doing the court must make a clear statement about the method of calculation used.
We agree with respondent that appellant has forfeited this objection by failing to object at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353 [the forfeiture doctrine applies to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 [failure to object to a restitution fine on procedural grounds waives the objection].)
D. The Trial Court Need Not Explain its Methodology In Awarding Restitution When Making the Award a Condition of Probation
Furthermore, contrary to appellant's argument we do not read People v. Giordano (2007) 42 Cal.4th 644 (Giordano),as requiring a trial court to state the method of calculating restitution for lost income and future loss of earning capacity on the record when imposed as a condition of probation. The Supreme Court took care to observe that the discretion to award restitution as a condition of probation is broader than that afforded by section 1202.4: "While we review all restitution orders for abuse of discretion, we note that the scope of a trial court's discretion is broader when restitution is imposed as a condition of probation. Penal Code section 1203.1, subdivision (j) expressly grants trial courts broad discretion in imposing conditions of probation. As this court has held, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . (Lent, supra, 15 Cal.3d at p. 486.) With respect to the third criterion, 'an order for restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent to future criminality [citation], and the court is not limited to the transactions or amounts of which defendant is actually convicted [citations].' (Ibid.) Probationary restitution may be imposed even if a defendant has not been convicted for a particular offense 'because probation is an " ' "act of clemency and grace," ' " not a matter of right. [Citation.] "[T]he granting of probation is not a right but a privilege, and if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation." [Citations.] Because a defendant has no right to probation, the trial court can impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the three Lent criteria.' (People v. Rubics (2006) 136 Cal.App.4th 452, 459-460 . . . .") (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.)
People v. Jones (2010) 187 Cal.App.4th 418 (Jones), relied on by appellant, was a case in which restitution was ordered under section 1202.4, subdivision (f)(3). It was not a probation case. Thus, the principles articulated above by the Supreme Court in Giordano had no application to Jones, but they are binding and conclusive here. Furthermore, in Jones, the People conceded error by the trial court in not explaining how it calculated the amount of restitution. (Id. at p. 423.) No such concession is made here. Therefore, even absent appellant's forfeiture, Jones would not compel a different result.
E. The Award of $16,000 for Diminished Earning Capacity Was Not an Unauthorized Award
We also reject on its merits appellant's charge that the $16,000 award for diminution to Flood's earning capacity is unauthorized under section 1202.4. First, we note that appellant correctly concedes that the list of damages enumerated in section 1202.4 is, by the words of the section itself, not intended to be exhaustive.
Second, restitution under section 1202.4 includes future loses reasonably certain to be suffered after the restitution hearing. As noted in Giordano, "[m]any, if not all, of the categories of loss compensable as direct restitution include losses that are incurred after the occurrence of the crime, and which may continue to be incurred for a substantial period of time following a restitution hearing. ([§] 1202.4, subd. (f)(3).) For example, '[w]ages or profits lost due to injury incurred by the victim,' necessarily arise following the occurrence of the crime, and it is likely that many injured crime victims will lose wages or profits for weeks, months, or possibly years following a restitution hearing. (Id., subd. (f)(3)(D).)" (Giordano, supra, 42 Cal.4th at pp. 657-658.)
Third, we point out once again that restitution was ordered as a condition of the grant of probation, and the applicable section, 1203.1, is even broader in its scope than section 1202.4, including the mandate that judges award restitution with the goal of making the victim whole. (Giordano, supra, 42 Cal.4th at p. 643, fn. 7.)
F. The Trial Court Did Not Abuse its Discretion In Denying Appellant's Request for a Continuance Because A Witness Was Unavailable
Appellant next contends that even if the restitution award was proper, the trial court abused its discretion in denying her motion to continue the restitution hearing because a witness, Jill Maier, was out of the country on vacation. We conclude there was no abuse of discretion.
The assault and robbery took place on December 22, 2007. The criminal complaint charging appellant with the robbery was filed two weeks later, on January 4, 2008. The information was filed on April 1, 2008, following the preliminary hearing. Appellant entered her plea of no contest one year later, on April 21, 2009, and probation was granted on June 4, 2009. The restitution hearing was originally set for July 10, 2009.
The restitution hearing actually took place on July 30, 2010, and October 8, 2010, more than a year after the original date. Apparently, the long delay resulted from some medical issues involving appellant's counsel that ultimately resulted in new counsel being appointed.
At the July 30 hearing, both Flood and Johnson testified. At the conclusion of that testimony, the trial judge discussed a second session with counsel. The court started by emphasizing that it "only want[s] to put this over once, so if you don't have anything you hope to have by then, it will be too late." Recognizing that appellant's counsel had "gotten into it relatively late," the court noted that the July 30 hearing date had been selected so that counsel "would have enough time to be ready. . . ." Concerned about the fact that the restitution issue had been "stretched out literally months and months," the court told counsel again "[s]o one more date, that closes it up." Appellant's counsel asked for October 8 because she was going on vacation in August. The court agreed to that date, noting that this would "give you [counsel] over two months." The discussion ended with the court saying once again, "October 8. We'll conclude then."
The October 8 hearing began with appellant's counsel calling two witnesses, Mai-Linge Bartlett, and Vicki Brumby. Only at the conclusion of those witnesses' testimony did appellant's counsel request a continuance "[a]t this point" because of Maier's unavailability.
After making an offer of proof concerning what the absent witness's testimony would be, the court offered that it sounded like Maier's testimony could be "fairly strong." The court then asked why Maier was not there that day under subpoena, noting at the same time that there had been multiple continuances in the case, and that the last time "it was with the understanding this is it, have them all here, and that's why I'm giving you two more months."
Counsel responded that Maier "had bought her plane tickets for Europe. I did not know she had bought her plane tickets for Europe." However, counsel did not directly answer the court's question about whether Maier was under subpoena.
The prosecutor objected to the continuance arguing (1) no effort was made to change the hearing date to accommodate Maier, or to have Maier deposed to preserve her testimony, (2) appellant had not shown that Maier's expected testimony could not be accomplished through other available witnesses, including Mr. Gasper, the store owner and Flood's boss, and (3) counsel had not explained why "some other method could not have been employed to have her here."
After hearing from counsel, the court denied the motion. In doing so, it was noted that "[t]he case has been delayed for months and months, in part, as an excuse the lawyer of record was too ill to come, and the defendant wasn't doing anything about another lawyer, and it was delayed at great length for those reasons. [¶] You came into the case and in several ways were told 'you have to move it along, I know you need time, but we have to go.' And then we've gone, and I didn't expect your most important witness as somebody who is not in the country when I gave you more than two months to be ready with everything you would want to be ready with."
We review the court's decision to grant or deny a continuance under the abuse of discretion standard. (People v. Mungia (2008) 44 Cal.4th 1101, 1118; Pham v. Nguyen (1997) 54 Cal.App.4th 11, 17-18.) The issue is not whether this court would have exercised its discretion in the same manner as the trial court, but rather whether the court's ruling "exceeds the bounds of reason, all circumstances being considered. [Citations.]" (People v. Beames (2007) 40 Cal.4th 907, 920.)
The same standard applies to requests for continuance in both civil and criminal proceedings. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679.)
The trial court has discretion to determine what constitutes good cause for a continuance. (People v. Johnson (1980) 26 Cal.3d 557, 570.) In exercising its discretion to grant or deny a continuance, the court may consider the proximity of the trial date, the length of the continuance and whether any previous continuances have been granted, the availability of alternative means to address the problem that gave rise to the motion for a continuance, and prejudice to the parties or witnesses if the continuance were granted. (Cal. Rules of Court, rule 3.1332(d)(1)-(5).)
"While the unavailability of a witness is considered good cause for a continuance . . . , the unavailability must be combined with the fact the witness has been subpoenaed (or is beyond the reach of a subpoena and has agreed to be present), and the witness's absence is 'an unavoidable emergency that counsel did not know and could not reasonably have known at the time of the pretrial or trial setting conference.' [Citations.]" (Pham v. Nguyen, supra, 54 Cal.App.4th at p. 18.)
It is not at all clear from this record what efforts were made to secure Maier's appearance. It is clear, however, that both sides were put on ample notice that the restitution hearing would be completed on October 8, the date requested by appellant's counsel. It is also abundantly clear that the trial court was very concerned for the length of the delay in adjudicating the matter of restitution, and how long Flood, who was badly injured during the robbery, had been waiting for compensation from appellant.
Defense counsel stated in her closing remarks that as an interim measure, appellant had been ordered to pay Flood $2,300, and appellant had been ordered to pay him $40 per month. These relatively paltry amounts justified the court's obvious concern for the prejudice these protracted proceedings were causing Flood.
Under the circumstances, we have no hesitation in concluding that the trial court acted within its discretion in denying the request for a continuance.
G. Appellant Has Not Shown on Appeal that She Received Ineffective Assistance of Counsel
Anticipating the possibility that we might conclude the trial court was justified in denying the request for a continuance of the restitution hearing, appellant alternatively argues that her trial counsel rendered ineffective assistance because she (1) failed to secure Maier's presence, (2) was unaware that Maier was going to Europe, (3) failed to use other means to preserve and present Maier's testimony, and (4) failed to explain why no other witness was available to provide the same evidence as Maier.
It is appellant's burden to demonstrate the inadequacy of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425(Pope),overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To prevail on a claim of ineffective assistance of counsel, appellant must establish her counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland);accord, People v. Fosselman (1983) 33 Cal.3d 572, 583-584.)
In determining whether counsel's performance was deficient, generally a court must exercise deferential scrutiny to counsel's performance. (Strickland, supra, 466 U.S. at p. 689; Pope, supra, 23 Cal.3d at p. 424.) On a direct appeal relief will be granted for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442.) When, however, the record ". . . '. . ."sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Case law recognizes that counsel's omission may have been based, in part, on legitimate considerations that do not appear on the record. (People v. Lucas, supra, at p. 443.)
Given the applicable standards, we conclude appellant cannot succeed on her claim of ineffective assistance of trial counsel because the record does not affirmatively establish counsel's performance was deficient (see People v. Sanchez (1997) 58 Cal.App.4th 1435, 1448; Pope, supra, 23 Cal.3d at pp. 428-429), nor is this a situation where " ' "there simply could be no satisfactory explanation" ' for counsel's act or omission. . . ."(People v. Sanchez, supra, at p. 1448; People v. Ledesma (1987) 43 Cal.3d 171, 218.)
In the absence of any statement from counsel beyond that contained in the transcript we have quoted, appellant has failed to demonstrate that there could be no satisfactory explanation for counsel's omission. (People v. Kipp (1998) 18 Cal.4th 349, 366-367.) It may be that counsel had arranged to have Maier appear voluntarily, but Maier left for Europe without telling counsel. On the other hand, it may be that Maier had been subpoenaed but, rather than risk invoking Maier's wrath by forcing her to cancel or postpone her vacation, and thus potentially impairing the value of her testimony, appellant's counsel made the tactical choice to take her chances on seeking a further continuance. The point is that we cannot say there is no satisfactory explanation for counsel's conduct. There very well may be.
Maier was described by appellant's counsel as having "no moral turpitude issues."
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In any event, "[o]n direct appeal, a claim of ineffective counsel cannot be established by mere speculation regarding the 'likely' testimony of potentially available witnesses. [Citation.] We cannot assume from a silent record that particular witnesses were ready, willing and able to give mitigating testimony, nor can we speculate concerning the probable content or substance of such testimony." (People v. Medina (1995) 11 Cal.4th 694, 773.) Consequently, appellant's assertion that Maier would have provided "critical" testimony in her favor is not a basis for finding prejudicial incompetence of counsel. (See People v. Jones (2003) 30 Cal.4th 1084, 1130; In re Alcox (2006) 137 Cal.App.4th 657, 670.) Accordingly, appellant has failed in her burden of showing the inadequacy of her trial counsel.
IV.
DISPOSITION
The judgment is affirmed.
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RUVOLO, P. J.
We concur:
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REARDON, J.
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SEPULVEDA, J.