Opinion
F077044
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMES ORLANDO LUCERO, Defendant and Appellant.
Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1491675)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira and Robert B. Westbrook, Judges. Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Meehan, J.
Judge Silveira ruled on appellant's motion to continue trial and presided over appellant's jury trial; Judge Westbrook sentenced appellant.
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A jury convicted appellant James Orlando Lucero of first degree residential burglary (Pen. Code, § 459). In a separate proceeding, the court found true two serious felony enhancements (§ 667, subd. (a)) and allegations that Lucero had two prior convictions within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code.
On December 22, 2017, the court sentenced Lucero to an aggregate indeterminate term of 35 years to life, 25 years to life on his burglary conviction and two 5-year serious felony enhancements.
On appeal, Lucero contends: (1) the court abused its discretion when it denied his request for a continuance to retain private counsel; and (2) the matter must be remanded for the court to consider whether to strike his serious felony enhancements. We find merit to this latter contention and remand the matter. In all other respects, we affirm.
FACTS
On September 7, 2015, Lucero cut his hand breaking a window to get into the home of an 82-year-old woman in Modesto as she was taking a nap in her bedroom. Lucero fled when the woman confronted him, but he was soon apprehended walking a short distance away from the home. DNA from blood samples taken from a doorway and a desk in the house matched Lucero's DNA.
The facts are abbreviated because Lucero does not raise any issues relating to his burglary offense.
At a hearing on September 15, 2015, public defender Rafael Bito began representing Lucero.
On January 5, 2016, the district attorney filed an information charging Lucero with first degree burglary and the enhancements and "Three Strikes" allegations the court found true. Lucero was arraigned on the information on that date.
On June 27, 2016, the trial date was set for October 11, 2016. However, on October 6, 2016, the court found Lucero incompetent to stand trial and it suspended criminal proceedings and vacated the trial date.
On November 8, 2016, the court reinstated criminal proceedings after it found Lucero competent to stand trial. The court also set a pretrial conference for December 12, 2016.
On December 12, 2016, the court continued the matter two days because Lucero was not transported to court and Bito was ill.
Lucero was in the hospital because he had a stroke.
On January 9, 2017, Lucero appeared in court with counsel and the court set a pretrial conference for March 13, 2017, and his trial date for May 23, 2017.
The pretrial conference was subsequently continued twice to May 16, 2017. On that date, defense confirmed the trial date of May 23, 2017, and the court again granted defense counsel's request to continue the pretrial conference. On May 19, 2017, defense counsel advised the court that he intended to ask for a continuance.
On May 22, 2017, Bito filed a motion to continue the trial, which was scheduled to begin the following day, to allow him to investigate a lead regarding contacts for potential witnesses who might support a defense for Lucero. The prosecutor opposed the continuance, arguing, in pertinent part, that the case was almost two years old and the 84-year-old victim had been subpoenaed twice and was prepared to testify that week. After a discussion off the record, the court continued the trial to June 6, 2017, and set a pretrial conference on June 2, 2017.
Judge Marie Sovey Silveira had been presiding over Lucero's case. At the pretrial conference on Friday, June 2, 2017, Lucero appeared before a different judge. At the beginning of the hearing, Bito confirmed for trial on Tuesday, June 6, 2017, and he asked for another pretrial conference on June 5, 2017, because there was a "likelihood" or a "chance" a private attorney might substitute in and they could deal with that issue on that date. Over the prosecutor's objection, the court continued the pretrial conference to June 5, 2017, so Judge Silveira could "weigh in." In further comments the prosecutor stated she had been informed by Attorney Amber Lunsford that Lunsford was going to meet with Lucero that afternoon.
On June 5, 2017, at the continued pretrial conference before Judge Silveira, Lunsford was present with Bito and Lucero. Bito told the court that late the previous week, Lucero told Bito he was in the process of hiring Lunsford. Lucero and Lunsford had spoken, and Lunsford intended to substitute in, but she did not want to make a general appearance until "the check clear[ed]." Thus, it appeared to Bito that Lunsford was being hired but was just waiting for the funding to be confirmed. Bito also stated that this was the first time Lucero was asking for a continuance to try to hire private counsel, and that Lunsford had stated she could confirm the funding within a week. Bito asked the court to trail the matter for one week to see if Lunsford was able to substitute in.
The prosecutor objected for the reasons she had previously stated two weeks earlier in opposing a continuance of the matter. She also noted that Lunsford had not yet been retained and that Lucero had not mentioned substituting private counsel even though he had plenty of opportunities to advise the court of his intent to do so, including when defense counsel asked for the continuance the court granted. In further comments, Bito told the court he was prepared to go forward but Lucero had "issues" with his strategy and was interested in getting new counsel.
When the court directed itself to Lunsford, she stated that Lucero approached her late the previous week and she had told him she was willing to substitute in, but she would have to ask the court for a brief continuance to confirm that she would. She also stated that they were waiting to "confirm a few details."
The court noted that in some cases it is not a problem to reschedule witnesses, but on the other hand it had been mentioned a number of times that the alleged victim was an elderly person and that was one of the reasons the prosecutor was vigorously trying to move the case forward. After determining there was no Marsden issue with respect to Bito's representation of Lucero, the court found the request for a continuance was untimely and it confirmed the matter for trial the following day.
People v. Marsden (1970) 2 Cal.3d 118. --------
DISCUSSION
The Denial of the Request for a Continuance
Lucero contends a continuance would not have resulted in an unreasonable disruption of the court's calendar, and that his request was neither arbitrary nor unjustifiably dilatory. Thus, according to Lucero, the court's refusal to grant a continuance constituted an abuse of discretion that denied him his right to counsel and to due process under the state and federal Constitutions. He further contends that because the denial of the continuance amounted to structural error, reversal is required. We disagree.
"As has been firmly established, due process of law comprises a right to appear and defend with retained counsel of one's own choice. [Citations.] However, a defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial. [Citations.] To put it another way, the right of a defendant to appear and defend with retained counsel of his own choice is not absolute [citation]; 'it 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.] It is likewise settled that it is within the sound discretion of the trial court to determine whether a defendant shall be granted a continuance to obtain a private counsel [citation]; that there is no mechanical test for deciding whether a denial of a continuance is so arbitrary as to violate due process but rather each case must be decided on its own facts [citations]; that the burden is on the defendant to establish an abuse of discretion; and that in the absence of showing an abuse, the reviewing court will not disturb the ruling of the trial court." (People v. Blake (1980) 105 Cal.App.3d 619, 623-624.) However, the erroneous deprivation of counsel of choice qualifies as structural error requiring reversal per se. (U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 150.)
Lucero did not meet with Lunsford until the Friday afternoon before his trial was scheduled to begin and he waited until the day before to ask the court, through appointed counsel, for a continuance. Further, at the June 5, 2017, hearing, Lucero did not yet have a retainer agreement with Lunsford and he sought a continuance only to see if he could come up with the funds to hire her. However, Lucero had been represented by appointed counsel throughout the proceedings and he did not explain how he suddenly would be able to obtain these funds. Additionally, attorney Lunsford told the court the continuance was necessary for her to "confirm a few details" and that she had told Lucero she would ask for a brief continuance to "confirm" she would be able to substitute in. The court could reasonably find from the above circumstances that financial compensation was not the only issue Lunsford had to resolve before agreeing to substitute in and that the prospect of Lucero being able to retain Lunsford was speculative. It could also reasonably find that Lunsford substituting in would unduly further delay the proceedings because it would require two continuances, one for her to make the decision to substitute in and another to allow her to prepare for trial.
Further, the record refutes Lucero's contention that his request for a continuance was not arbitrary and that he had not been dilatory in attempting to retain private counsel. There had been numerous delays in bringing Lucero's case to trial that resulted in his latest trial date being scheduled almost two years after the underlying burglary occurred. Although Lucero was not responsible for much of the delay, he had ample time prior to June 5, 2017, to attempt to substitute private counsel. Instead, he waited until four days before trial to mention the possibility he might retain private counsel, until one day before trial to ask for a continuance for that purpose, and he provided no explanation for the delay.
Moreover, a continuance would have resulted in an unreasonable disruption of the orderly and expeditious administration of the court. Witnesses would have had to be rescheduled and the prosecutor and defense counsel would have had to make adjustments to their schedules and other cases to accommodate Lucero's trial being continued. Due to the case having been pending for almost two years and the elderly age of the key witness, the prosecution risked the possibility that the delay might hamper her memory or that she might experience health issues. And as noted, Lunsford substituting into the case undoubtedly would also have required an additional continuance to allow her to prepare for trial.
Lucero cites Bito's statement at the June 5, 2017, hearing that there was a "difference in strategy" to contend the timing of his request to substitute private counsel was justified because the investigation Bito conducted after his two-week continuance was granted was a likely source of a conflict that prompted this request. He also suggests that the stroke he suffered that required hospitalization may have affected his ability to make his request to substitute private counsel at an earlier date. These claims are speculative because they are not supported by any evidence in the record. In any case, they are not properly before us because they were not presented to the trial court as reasons for the delay in seeking to substitute private counsel. (People v. Crovedi (1966) 65 Cal.2d 199, 207 [determination whether denial of continuance is arbitrary must be based on the circumstances of case and reasons presented to trial judge when request is made].) Thus, we conclude that the court did not abuse its discretion or deny Lucero his right to counsel of his choice or his right to due process when it denied his request for a continuance. (Cf. People v. Farley (1968) 267 Cal.App.2d 214, 220-221 [denial of request for continuance made on day of trial not abuse of discretion where defendant had ample opportunity to obtain private counsel before that date and did not tender sufficient cause to relieve appointed counsel or give substantial reason for request for private counsel].)
The Serious Felony Enhancements
Lucero contends that based on a change in the law that allows the court to strike serious felony enhancements, the matter must be remanded to the trial court for it to exercise its discretion whether to strike his serious felony enhancements. Respondent concedes.
"Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill [No.] 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2.)" (People v. Jones (2019) 32 Cal.App.5th 267, 272.) This legislation applies to judgments that did not become final before January 1, 2019. (Ibid.) Thus, it applies to Lucero's case because it is not yet final.
In People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), the court considered when remand was required to allow the trial court to consider whether to exercise discretion imparted by the enactment of Senate Bill No. 620 to strike a firearm enhancement. (Id. pp. 424-428.) In concluding remand was required in that case, the court stated: "To be sure, the egregiousness of a defendant's crimes, a defendant's criminal history, and the court's sentencing options and rulings may prompt the court to express its intent to impose the maximum sentence permitted. When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor. (See [People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896] [declining to remand where trial court indicated defendant was ' "the kind of individual the law was intended to keep off the street as long as possible" '].) "But we believe a remand is necessary when there is no such clear indication of the trial court's sentencing intent." (McDaniels, supra, 22 Cal.App.5th at p. 427.)
The trial court did not express through its comments or its sentencing choices an intent to impose the maximum sentence permitted. Therefore, we will remand for the trial court to exercise its discretion whether to strike any of Lucero's serious felony enhancements pursuant to Senate Bill No. 1393.
DISPOSITION
The matter is remanded to the trial court for the court to consider whether to exercise its discretion to strike Lucero's serious felony enhancements and, if appropriate, following the exercise of that discretion, to resentence Lucero accordingly. In all other respects, the judgment is affirmed.