Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05-347, 05-651, 05-6542
CANTIL-SAKAUYE, J.
Defendant Susan Jean Runner pled no contest to two counts of possessing methamphetamine for sale in case Nos. 05-347 and 05-651 and the court granted probation. Defendant violated probation and faced additional charges in case No. 05-6542. The first amended complaint in that case charged defendant with the following felonies: (1) conspiracy to commit felony violations of Health and Safety Code sections 11379.6, 11383, subdivision (c), and 11379, subdivision (a) (Pen. Code, § 182, subd. (a)(1) – counts 1, 2 & 4); (2) possession of methamphetamine for sale (§ 11378 – count 3); and (3) maintenance of a location for unlawful activities (§ 11366 – count 5). The amended complaint also included three prior drug conviction enhancements: Count 3a, that codefendant Lupe Chavez had a prior drug conviction (§ 11370.2, subd. (c); count 3b and 3c, that defendant had prior drug convictions (§ 11370.2, subd. (c)); and count 3d, a probation ineligibility allegation, that probation would not be granted to defendant (Pen. Code, § 1203.07, subd. (a)(11)).
Hereafter, undesignated statutory references are to the Health and Safety Code.
Defendant entered into a plea agreement that resolved all three cases and provided for a prison sentence of six years and four months. Just before sentencing, a dispute arose over how to handle a mistake in identifying the prior drug conviction enhancements included in the plea agreement. The court denied defendant’s motion to withdraw her plea. At sentencing, defendant requested a continuance to retain private counsel to review the plea and proposed sentence. The court denied the motion and sentenced defendant to six years and four months as stipulated in the plea agreement.
Defendant appeals, arguing that: (1) the court erred in sentencing her to an enhancement not specified in the plea; (2) the court violated her Sixth Amendment right to counsel when it denied her request for a continuance to retain private counsel; and (3) the abstract of judgment should be corrected to accurately reflect defendant’s sentence. We shall affirm the judgment and direct the trial court to correct the error in the abstract.
FACTUAL BACKGROUND
We do not summarize the facts of the underlying offenses because the issues in this appeal involve procedural matters that occurred in the subsequent criminal proceedings. Suffice it to say that all three criminal complaints involved drug-related offenses.
DISCUSSION
I.
No Error Occurred in Sentencing The Defendant On The Prior Drug Conviction Enhancement
Penal Code section 1192.5 reads in part: “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.” (Italics added.) Defendant contends that the court violated the plea agreement when it sentenced her on “an enhancement she did not plea to.” She acknowledges that she suffered no prejudice as a result of the alleged error, but asks that we remand the case “so the trial court can ensure [defendant’s] sentencing is in accordance with her plea agreement.” In these circumstances, including the defendant’s concession of no prejudice, we conclude that the court did not err in amending the plea agreement to avoid imposing what would have been an unauthorized sentence.
The amended information in case No. 05-6542 alleged two section 11370.2, subdivision (c) enhancements in counts 3b and 3c based on defendant’s prior drug convictions. Each enhancement carried a three-year consecutive sentence. (§ 11370.2, subd. (c).) When defense counsel prepared the change of plea declaration, he mistakenly identified the two enhancements as 3a and 3b instead of 3b and 3c. Defendant admitted enhancements 3a and 3b at the change of plea hearing. In order to reach the stipulated sentence of six years and eight months, the parties agreed that enhancement 3b would be stricken if defendant appeared at the sentencing hearing. If she did not appear, the sentence would be nine years and four months.
The facts reveal that a drafting mistake by defense counsel resulted in the plea agreement including an enhancement that applied only to the codefendant. Defense counsel brought his mistake to the court’s attention at a subsequent hearing. He suggested that the court strike the 3b enhancement as agreed; otherwise, defendant might withdraw her plea. The court granted a continuance and appointed conflict counsel to advise defendant about withdrawing the plea.
Conflict counsel filed a motion to withdraw the plea “based upon the fact that as every one in this room knows [defendant] did not admit enhancements to which she -- they now seek to sentence her.” He asked that defendant’s “entire plea bargain be nullified or that the Court sentence her only to those enhancements for which she actually did plea, which as [his] motion indicat[ed] [was] about half the term contemplated by the Court.”
The court denied defendant’s motion, ruling that what occurred was “in the nature of a typographical error.” The court continued: “[Defendant] was represented by competent counsel . . . . I heard the plea. I heard the discussion, it was clear that [defendant] was pleading to a sentence of six years and four months unless she failed to appear at sentencing in which case the result would be a sentence of nine years and four months. [¶] That was made crystal clear to [defendant] and so the Court believes that the error was a fairly simple one that did not go to the consequence or the understanding of the plea, the error would be corrected by interlineating a letter c for the letter a after the number three.” At sentencing, it appeared that the court was still confused about the typographical error. It granted the People’s motion to strike “as to what was (c), what remains as 3(a)” and sentenced defendant on enhancement 3b. Notwithstanding the error, the defendant received the full benefit of her bargain: one of two prior drug conviction enhancements was stricken and her aggregate sentence was six years and four months pursuant to the plea agreement. There was no error on this record.
II.
The Trial Court Did Not Err In Denying The Motion to Continue To Retain Private Counsel
When defendant appeared for sentencing as scheduled on March 27, 2007, defense counsel informed the court that defendant was not ready to proceed. She reminded the court about defendant’s unsuccessful motion to withdraw her plea. Defense counsel recounted her conversation with defendant in which defendant indicated that she was “hiring private counsel in terms of reviewing sentencing and plea agreements herself. She showed me a business card of a person . . . out of Stockton, and she is asking for a chance at least one week to consult with th[e] attorney.” The court acknowledged that defendant had a right to consult with a private attorney, but noted that the court had already considered and ruled on the request to withdraw the plea. The court stated that it had granted defendant “a couple of continuances in the past so she [could] attend to family business and prepare herself for the plea to which she agreed.” It denied the request for yet another continuance.
Defendant argues that the court erred in denying her request for a continuance to secure a private attorney to represent her. She maintains that “the state’s interest in the efficient administration of its calendar must give way to [defendant’s] constitutional right to counsel of her choosing.” Defendant contends she is entitled to automatic reversal because the request for continuance involved her constitutionally protected right to retain counsel. Defendant’s argument lacks merit.
The law applicable to motions for continuance to retain a different lawyer is well-established and summarized in People v. Trapps (1984) 158 Cal.App.3d 265 (Trapps): “‛Although there is not an absolute right to be represented by a particular attorney, the courts will make all reasonable efforts to insure that a defendant financially able to retain an attorney of his own choice can be represented by that attorney. Under certain circumstances, due process is denied to a defendant who is not granted a continuance in order to secure a private attorney of his own choosing. [Citation.] A court will not interfere with the defendant’s right to be represented by counsel of his choice unless to accommodate him would result in a disruption of the ordinary process of justice to an unreasonable degree. [Citation.] Obviously, each case is to be tried on its facts and in each case there must be a determination as to whether or not the trial court abused its discretion in denying a continuance for this or other grounds.’ [Citation.] ‘Generally speaking defendant is entitled to a continuance to secure an attorney of his own choice. [Citations.]’ [Citation.]
“The Supreme Court couches the issue in even stronger terms: ‘We have held that a criminal defendant cannot be deprived of the opportunity to retain counsel of his choice except when bestowal of that benefit would prejudice him or unreasonably disrupt the orderly administration of justice. [Citation.]’ (People v. Haskett (1982) 30 Cal.3d 841, 852 . . . [Haskett], italics added.) ‘“[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.]”’ (People v. Crovedi (1966) 65 Cal.2d 199, 207 . . . .) However, ‘. . . the right of a defendant to appear and defend with retained counsel of his own choice is not absolute [citation] . . . . [T]he burden is on the defendant to establish an abuse of discretion; and . . . in the absence of showing an abuse, the reviewing court will not disturb the ruling of the trial court. [Citation.]’ [Citation.]” (158 Cal.App.3d at pp. 270-271.)
Thus, although a criminal defendant is generally entitled to a continuance to secure an attorney of his own choice, “there is a limit to how often a defendant may continue his trial even on the basis that he desires to obtain different counsel. [Citation.]” (People v. Reaves (1974) 42 Cal.App.3d 852, 855-856 (Reaves).)
In Reaves, the appellate court held that the trial court did not abuse its discretion in denying defendant’s request for continuance on the day of trial to obtain private counsel. (42 Cal.App.3d at p. 856.) The defendant in that case “offered no reasons why he desired different counsel although he had ample opportunity to do so, nor did he indicate that he was financially able to hire private counsel.” (Id. at p. 855.) The court explained: “Since the public defender was appointed for the defendant at his initial arraignment we presume that he at that time indicated a lack of ability to hire private counsel. If during the ensuing five months, during which defendant made numerous appearances in court, he had developed the ability to hire private counsel or had some reason for wishing to discharge his appointed counsel, it was incumbent upon him to do so and bring the matter to the attention of the trial court. On the face of this record the trial court was justified in assuming that defendant was, at all stages, properly represented by appointed counsel, and that defendant lacked the ability to hire private counsel. . . . In short, defendant’s motion appears to have been nothing more than an attempt at delaying the trial only for the sake of delay.” (Ibid.)
We conclude there was no abuse of discretion in the case before us. Like the defendant in Reaves, the defendant here had ample opportunity –- nearly three months -- to request a continuance to seek retained counsel after the court granted a continuance and appointed conflict counsel to assist her with her motion to withdraw the plea on January 2, 2007. The court granted an additional continuance and eventually heard defendant’s motion to withdraw the plea on February 27, 2007. After the court denied the motion, conflict counsel returned the case to the public defender’s office. Defense counsel requested an additional 30-day continuance of sentencing so that defendant could “take care of some family matters and get her children situated.” The court granted the continuance with a caveat: “I want you to understand, Miss Runner, if you fail to show up, if it is willful failure, the sentence can very well be nine years, four months. So you have to be here. We need to take care of business.” As we explained, defendant stated that she was not ready to proceed when court convened for sentencing on March 27, 2007.
Given this record, the court was justified in denying defendant another continuance –- this time for what appeared to be “an attempt at delaying . . . only for the sake of delay” (Reaves, supra, 42 Cal.App.3d at p. 855) –- where the court had already ruled on defendant’s motion to withdraw the plea. In its discretion the court impliedly found that defendant had been dilatory and a further continuance would have unreasonably disrupted the orderly administration of justice. (Haskett, supra, 30 Cal.3d at p. 852.)
III.
The Abstract of Judgment
The Attorney General agrees with defendant that the abstract of judgment incorrectly states that the section 11370.2, subdivision (c) enhancement relates to count 1. We shall direct the trial court to correct the abstract to show that the enhancement is related to count 3. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to show that the section 11370.2, subdivision (c) enhancement relates to count 3 and to forward the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P.J., MORRISON, J.