Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF140862. Robert E. Law, Judge. (Retired judge of the former Orange Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
McKINSTER Acting P. J.
Defendant and appellant Kyle Dion Gispanski appeals his conviction of attempted murder and other offenses, raising the single contention that the trial court abused its discretion in refusing to grant a defense continuance at sentencing. We reverse with directions.
FACTS AND PROCEDURAL HISTORY
In December 2007, a few days before Christmas, defendant and some friends were at a bar. When the bar closed at 2:00 a.m., both defendant’s group of friends and another group of individuals, and the bartender, left the building and walked out to the parking lot. For a moment, it appeared as if one of defendant’s friends was trying to pick a fight with someone from the other group. Defendant persuaded his friend to desist; defendant’s friend entered his own car, defendant and his remaining friends got into defendant’s car, the other group entered their truck, and the bartender got into her car.
The cars queued at the driveway exit but, even after the traffic light turned green, defendant did not drive forward. The driver of the truck honked at defendant, who still did not move. After waiting nearly a minute, the driver maneuvered his truck around defendant’s car and turned into the street. Defendant followed, pulled up next to the other man’s truck and yelled something. Defendant started swerving toward the truck, as if trying to run the truck off the road.
The driver of the truck turned into a shopping center parking lot and stopped. Defendant followed and stopped behind the truck. Defendant alighted from his car and approached the driver’s side window on foot. Defendant asked angrily if they “‘really want to mess with him, ’” and threatened to “‘take [them] all out.’” He said they “‘don’t know who you’re fucking with, ’” and “‘I will end you.’” Rather than dealing with defendant any longer, the driver stepped on the gas and began to drive away. Defendant shot the driver; the bullet went through the driver’s eye and nose and through the windshield. The driver lost his left eye as a result of the shooting.
Defendant’s version of events was that the truck had swerved toward him on the road and had cut him off several times. When they stopped in the shopping center parking lot, defendant took his gun from the glove box, loaded it with bullets from the center console, and put the gun in his pocket as he got out to confront the other driver. Defendant indicated to the other driver to roll down his window, and then told the other driver to leave and let it go. Defendant claimed that the other driver slapped him across the face, and proceeded to drive off. Defendant just reacted and fired once at the fleeing truck, intending to scare them. Defendant later disposed of his gun and lied to the police about its whereabouts. A defense witness testified that when the other driver slapped defendant, it caused defendant to stumble and to accidentally discharge the gun.
Defendant was charged with willful, deliberate and premeditated attempted murder, discharging a firearm at an occupied vehicle, and four accounts of assault with a semiautomatic firearm. The jury found defendant guilty on all these charges, and also found true allegations that defendant had personally inflicted great bodily injury on the other driver, and had personally used a firearm with respect to the assault counts.
Defendant filed a motion for new trial shortly before sentencing, alleging instructional error (self-defense instructions) and other grounds (lesser included offenses, prosecutorial misconduct, and ineffective assistance of counsel). Three days before sentencing, defense counsel also filed a request for a continuance, based in part on the receipt of some new information that one of the jurors had been seen conversing with a defense witness, and in part on the absence of a probation report, which had not yet been completed.
At the sentencing hearing, the prosecutor began to note that the probation report calculations (presumably, of custody credits) were incorrect. The court commented that the probation report was “crap, c-r-a-p, the probation report, ” and defense counsel interjected that he had not “been given a chance to review it.” The court cut counsel off impatiently: “No. Plenty of time to review it, counsel. Come on. Today is the date for sentencing. It has been set for a long time.” Counsel stated that the report, however, “just came in today, ” and requested an opportunity to review it. The court ordered counsel to “Read it. I cannot believe people are not prepared in my court. It is unacceptable. I have had it for several days.” While counsel was supposed to be reading the report, the court nevertheless proceeded in colloquy with the prosecutor to discuss sentencing issues. As the court began to pronounce judgment, defense counsel interposed, “just for the record, also, I filed a 1050 to continue this.” The court indicated that it had not received any written motion for continuance and there was none in the court’s file. The court stated, “It is not in my file. I have not read it and reviewed it.” Upon inquiry, the court ascertained that the prosecutor had received a copy of the motion for continuance, but stated, “Well, I don’t intend to continue it. There is no reason.” The court then proceeded to pronounce the sentence. On a cursory review of the probation report, defense counsel was able to point out that the probation report had miscalculated defendant’s custody credits.
The court sentenced defendant to a term of 32 years to life, plus 10 years in state prison.
ANALYSIS
I. Standard of Review
“A continuance in a criminal trial may only be granted for good cause. ([Pen. Code, ] § 1050, subd. (e).) ‘The trial court’s denial of a motion for continuance is reviewed for abuse of discretion.’ [Citation.]” (People v. Mungia (2008) 44 Cal.4th 1101, 1118.)
II. The Trial Court Abused Its Discretion in Denying a Continuance
On December 8, 2009, three days before the scheduled sentencing hearing, defense counsel filed a written request for a continuance. Counsel’s motion stated, among other things, that he had uncovered information that one of the jurors had spoken to a defense witness in the hallway during the trial; counsel needed more time to investigate the matter and to file a motion to unseal juror information. In addition, counsel had not yet received the probation report.
On December 11, 2009, the day of sentencing, counsel informed the court that he had only just received the probation report, and had not yet had a chance to review it. The court directed counsel to read the report as the hearing was being conducted.
As to the written continuance motion, the court stated that the motion was not in the court file, although the court ascertained that the prosecutor had received a copy. The court proceeded to deny the motion, stating there was “no reason” for a continuance, notwithstanding the court’s admission that it had neither received nor reviewed the moving papers.
Defendant contends that the trial court abused its discretion in two ways with respect to denying counsel’s oral and written requests for a continuance. First, the court abused its discretion in refusing to allow counsel time to read and review the probation report, which had just been provided to counsel on the day of the sentencing hearing. Not only did the court not permit a continuance, it did not grant even a few minutes recess, to afford counsel the opportunity to peruse the document for possible errors. Counsel was able to spot one mistake (miscalculation of credits), but did not have time to note or object to other possible errors. Counsel contends that certain orders for restitution to some of the victims are not supported by substantial evidence.
Second, in denying the written motion, the court abused its discretion in doing so without having so much as read the moving papers, or ascertained the basis of the request (possible juror misconduct).
We agree with counsel that the trial court abused its discretion here.
As to the review of the probation report, there is no dispute in the record that trial counsel did not receive the probation report until the day of the sentencing hearing, and had not had an opportunity to read it. Appellate counsel argues that the probation report erred in several matters, including miscalculation of defendant’s custody credits, as well as specific victim restitution orders which defendant urges were not justified. The People respond that the trial court ordered only mandatory fines, but reserved jurisdiction over direct victim restitution claims. Both the reporter’s transcript and the documentary record, however, demonstrate that the trial court imposed all the fines listed in the probation report, including the victim restitution amounts of $677.76 and $650, as well as any additional costs for collecting those amounts. The court stated, “Probation has listed fines, fees and restitution which are mandatory. The court imposes all of the above.” The court documents list both of the victim restitution amounts as orders of the court.
The probation report included recommendations for orders of victim restitution of $677.76 to the primary victim, and $650 to another victim. Contrary to defense counsel’s argument, there may have been some justification within the probation report for the amounts of victim restitution ordered.
In the pronouncement of judgment, counsel realized that the custody credits stated by the court were incorrect, depriving defendant of nearly a year of additional time he had been in custody. Although the court revised its calculation of credits, appellate counsel urges that even the corrected calculation was erroneous. Counsel has filed a letter with the trial court requesting further correction of this error.
Ordering counsel to read the probation report, while the court still conducted the sentencing hearing and conversed on the record with opposing counsel, did not afford defense counsel a genuine opportunity to read and understand the report. The court’s refusal even to recess the hearing for a few minutes, was an abuse of discretion.
Similarly, the court abused its discretion in denying the written motion for a continuance, out of hand, having admittedly neither seen nor read the moving papers. The motion was a proper written motion, as the prosecutor acknowledged having received a copy. The court denied the motion without knowing its basis. That basis included the well-articulated ground of possible juror misconduct, which required further investigation, including some time in which to bring a proper motion to unseal confidential juror information.
A juror was apparently seen talking to a defense witness. That defense witness was not called to testify at trial, although he had testified at an evidentiary hearing. The nature of the witness’s testimony was to corroborate part of defendant’s story (i.e., that the driver of the truck struck or slapped defendant just before the shooting). However, this evidence was not necessarily exculpatory as it could show that defendant had a motive to shoot the victim. The witness’s hearing testimony also showed some acquaintance and familiarity with defendant. In short, the witness had information that could well damage the defense case, and probably was the reason why the witness was not called at trial. Without being able to investigate what the witness may have said to the juror, defense counsel was unable to ascertain the viability of an additional ground for a new trial.
“A juror who ‘consciously receives outside information... or shares improper information with other jurors’ commits misconduct. [Citation.] Jury misconduct ‘raises a rebuttable “presumption” of prejudice.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 192.) Here, there was at least some reason to think that a juror may have received outside information, sufficient for trial counsel to investigate the matter. The issue could not be investigated without a continuance; denying a continuance out of hand without even acknowledging an articulable basis for it was the epitome of an abuse of discretion. The court exercised no judicial discretion at all, but simply vented its displeasure and impatience on defense counsel. “A trial court’s failure [or refusal] to exercise discretion is itself an abuse of discretion, and we review such action in accordance with that standard of review. [Citations.]” (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.)
As defendant also points out, the detriments to others occasioned by the requested continuance were minimal. The trial had been completed, there were no trial witnesses to inconvenience, and there were no jurors whose service would have been prolonged. (See People v. Jenkins (2000) 22 Cal.4th 900, 1037 [concerning weighing benefit to the moving party versus burdens on other witnesses, jurors and the court, and whether substantial justice would be served by granting a continuance].)
The trial court abused its discretion by denying the motion for a continuance without even reading it or knowing of the grounds of the motion.
DISPOSITION
The judgment is reversed. The trial court is directed to permit defense counsel to investigate the ground of juror misconduct, and to determine whether to bring a new trial motion on that ground. If no new trial motion is brought timely, or if it is denied, then the judgment may be reinstated, upon proper determination and correct calculation of any victim restitution orders, custody credits, or other matters pertaining to sentencing.
We concur: RICHLI J., MILLER J.
That is, the award of $677.76 to the primary victim was for eye drops for his artificial eye, based on the claim that he paid $21.18 every two weeks from April 2008, when he had received a prosthetic eye. The victim provided one, and only one, receipt in the amount of $21.18 for eye drops, dated December 8, 2009. The restitution order for $677.76 represented 32 biweekly payments of $21.18 between April 2008 and the time of sentencing in December 2009. There were in fact at least 42 biweekly periods between May 1, 2008, and December 11, 2009, but there was no other substantiation of costs that the victim had actually incurred.
Josh Velde, one of the occupants of the truck at which defendant shot, wrote to the probation officer that “‘My losses were about $650.00 to $700.00.’ He provided [the probation] officer with a pay stub from [his] employer... indicating he works 20-and-a-half hours and earns $246.00 per week.” Josh Velde also worked for another company, earning $150 per day. The second employer had no records to show the number of work days that Josh Velde had missed to attend trial, although she remembered that he did miss some days. Josh Velde never testified at the trial, although he was subpoenaed six times. He claimed he lost six hours of work with the first employer, at $12 per hour ($60), and five days of work with the second employer at $150 per day ($750). He wanted $40 for gas to travel back and forth to court, as well as some compensation for the changes in his life caused by the incident. There was some evidence-the victim’s written statement-upon which to make a restitution order, but it was not fully corroborated by the employers, and the amount ordered was not altogether consistent with the amount claimed.
The Legislature has required that direct victim restitution must be an “economic loss” incurred as a result of the defendant’s criminal conduct. (Pen. Code, § 1202.4, subd. (f); see also People v. Moore (2009) 177 Cal.App.4th 1229, 1232.)