Opinion
A150448
05-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ADAM K. JONES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 177021)
Adam K. Jones appeals his convictions for assaulting a peace officer and resisting arrest. He argues the trial court erred in denying his request, made one week before trial, for a continuance to retain private counsel. We affirm.
I. BACKGROUND
In August 2015, police approached Jones outside a convenience store in response to a 911 call about a public disturbance. Jones was hostile, belligerent, and hit an officer on the head with a bottle. The officer was treated for several lacerations on his face and head, some of which required stitches. Jones was charged by information with assault on a peace officer (Pen. Code, § 245, subd. (c); count 1) and misdemeanor resisting a peace officer (id., § 148, subd. (a)(1); count 2). As to count 1, Jones was alleged to have inflicted great bodily injury (id., § 12022.7, subd. (a)). He was also alleged to have been convicted of five prior felonies for which he served separate prison terms (id., § 667.5, subd. (b)).
In March 2016, the court suspended proceedings pursuant to Penal Code section 1368 and appointed experts to assess whether Jones was competent to stand trial. The following May, both experts reported that Jones was competent and criminal proceedings were reinstated. In June, Jones sought substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and the motion was denied. A second Marsden motion made in August was also denied. Trial was scheduled for October 17. On October 18, Jones made a third Marsden motion, which also was denied.
After denial of the October 18, 2016 Marsden motion, defense counsel told the court that Jones "would like to hire a private attorney to represent him, and for that reason he has informed me he needs approximately one month [to prepare for trial]. And so for that reason on his behalf I'm asking for a continuance of this trial under Penal Code Section 1050." The following colloquy ensued.
"THE COURT: We are now in a trial department, and we're going to be calling a jury on Monday, October 24th. . . . [¶] . . . If you were to hire someone before October 24th and they [were] prepared to come in and handle a trial matter, the Court would be under those circumstances obligated . . . to accommodate you. [¶] Have you made any efforts prior to today to consult with, meet with, or talk to any private counsel?"
"[JONES]: If I have to I will.
"THE COURT: No, my question was have you done that so far?
"[JONES]: No.
"THE COURT: All right. So at this time I don't have any demonstrative information in front of me that you have private counsel available or are in a position to hire private counsel or someone that you anticipate that would come in. But on Monday the 24th if it appears that someone is prepared to come in, they would have to communicate with your present counsel. They would provide your present counsel with what they call a substitution of counsel form and file it with the Court, and they would notify the DA that they were coming in as new counsel. But at this time we are here for trial and there are no legal grounds for me to grant a continuance. [¶] Yes, sir?
"[JONES]: What if I really can't get along with my counsel?
"THE COURT: Well, we've had that discussion. [¶] . . . [¶] . . . If something new arises between now . . . [¶] . . . [¶] . . . and the next court date . . . [¶] . . . [¶] I will entertain that." The court then continued with pretrial proceedings.
At the next court hearing on October 24, 2016, with potential jurors waiting in the jury assembly room, Jones made another Marsden motion, which was denied. The next day, he made a fifth Marsden motion, which was also denied. Jones subsequently waived his right to a jury trial and, with the district attorney's agreement, a bench trial took place. The court convicted Jones of both counts and found as to the assault charge that he personally inflicted great bodily injury on the officer. Jones was sentenced to eight years, including a three-year lower term for the assault, a three-year enhancement for the great bodily injury, and two one-year prior prison term enhancements. A concurrent one-year term for resisting also was imposed.
II. DISCUSSION
Jones's sole argument on appeal is that the trial court erred by denying his motion for a continuance so he could hire a private attorney. We easily conclude the trial court did not abuse its discretion in denying the continuance.
"The right to the effective assistance of counsel 'encompasses the right to retain counsel of one's own choosing. [Citations.]' [Citation.] Underlying this right is the premise that "chosen representation is the preferred representation. . . . [¶] . . . [¶] [T]rial courts have the responsibility to protect a financially able individual's right to appear and defend with counsel of his own choosing. 'A necessary corollary [of the right] is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. [Citations.]' [Citations.] In addition, counsel, 'once retained, [must be] given a reasonable time in which to prepare the defense.' [Citation.] Failure to respect these rights constitutes a denial of due process. [Citations.] [¶] . . . [¶]
"Any limitations on the right to counsel of one's choosing are carefully circumscribed. Thus, the right 'can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' [Citations.] The right to such counsel 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.' [Citation.] [¶] . . . 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.] [¶] . . . [T]rial courts should accommodate such requests—when they are linked to an assertion of the right to retained counsel—'to the fullest extent consistent with effective judicial administration.' " (People v. Courts (1985) 37 Cal.3d 784, 789-791 (Courts).)
With these principles in mind, we review a trial court's denial of a continuance to retain new counsel for abuse of discretion. (Courts, supra, 37 Cal.3d at p. 790.) "In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, ' "particularly in the reasons presented to the trial judge at the time the request [was] denied." ' " (Id. at p. 791.) "The grant or denial of a continuance is ' "seldom successfully attacked" [on appeal].' " (People v. Hatt (2018) 20 Cal.App.5th 321, 325.)
Here, Jones requested a continuance to retain counsel one week before commencement of trial, and after assignment to a trial department for pretrial proceedings. Penal Code section 1050, subdivision (a) requires that "all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time." The statutory admonition recognizes 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." (Ibid.)
The court denied an immediate continuance for the sole purpose of Jones seeking retained counsel but expressly advised Jones that substitution would be allowed for counsel who could assume representation and proceed to trial on October 24, 2016 (when jury selection was scheduled to commence). The court was reasonably skeptical that Jones sincerely intended to retain private counsel. Jones made the request just after denial of his third Marsden motion, despite denial of two prior Marsden motions on similar grounds. Additionally, by the time of the October 18 motion, Jones had received at least one month's prior notice of a trial date, but he had neither sought private counsel nor provided assurance of sufficient resources to do so. "[C]onfronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel" (Courts, supra, 37 Cal.3d at p. 791), the court could reasonably regard Jones's request as unjustifiably dilatory unless retained counsel could keep the already-scheduled trial date. Moreover, we cannot assume the court would not have reconsidered the request for a continuance had Jones successfully retained private counsel who could assume representation on a specified timeline. The People represent, and Jones does not dispute, that he made no further request for a continuance and never indicated he made any effort to identify or retain substitute counsel. The trial court thus had no opportunity to reconsider the request on a different set of facts. (Cf. Courts, at pp. 794-796 [abuse of discretion to deny renewed motion for a continuance on first day of trial where retained counsel appeared and was prepared to take case if continuance granted].)
The requests for continuances in cases cited by Jones are distinguishable. (Courts, supra, 37 Cal.3d at pp. 787-789, 791 [motion made about one week before trial, but defendant had diligently pursued retention of counsel for almost two months]; People v. Gzikowski (1982) 32 Cal.3d 580, 583-589 [lead counsel withdrew in death penalty case], leaving relatively-inexperienced counsel who was never intended to take the case to trial]; People v. Byoune (1966) 65 Cal.2d 345, 346-348 & fn. 1 [prompt request after addition of more serious charge]; People v. Crovedi (1966) 65 Cal.2d 199, 201-203, 208-209 [counsel suffered a heart attack during trial]; see Chandler v. Fretag (1954) 348 U.S. 3, 4-10 [denial of due process to deny motion for continuance to retain counsel after charge added that carried possibility of life sentence].) This case is more like People v. Jeffers (1987) 188 Cal.App.3d 840, which found no abuse of discretion in denial of a request for a continuance on the first day of trial. The defendant had objected to the last-minute substitution of a different attorney from the firm appointed to represent him, but the court concluded the defendant should have anticipated the possible substitution and failed to show the attorney was incompetent or unprepared for trial. (Id. at pp. 850-851.) Here, Jones made no prior effort to retain private counsel despite knowing of his conflicts with appointed counsel and the approaching trial date; he made no showing he was likely to retain counsel who could promptly take over the case; and he failed to demonstrate that his appointed counsel was incompetent or unprepared for trial. These facts alone supported denial of the continuance.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.