Opinion
2d Crim. No. B190932
5-7-2007
THE PEOPLE, Plaintiff and Respondent, v. M.A. RAQUIB, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Sarah J. Farhat, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
M.A. Raquib appeals his conviction for possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). He contends the trial courts delay in giving the jury a written copy of the jury instructions was prejudicial error, and the courts denial of a continuance to obtain new retained counsel was constitutional error. We affirm.
FACTS
Police officers encountered Raquib, a transient, pushing a shopping cart on the street. The cart contained discarded recyclable objects as well as personal items, and Raquib told the officers that his sole source of income was recycling. Based on information obtained in a records check, the officers arrested and searched Raquib. The officers found 15 wafers of cocaine base, a glass smoking pipe, and $68 in cash stuffed in his pockets. The quantity of drugs, the level of narcotics activity in the area, and the amount of money crumpled up in his pockets indicated that Raquib possessed the cocaine for the purpose of sale.
DISCUSSION
No Error Regarding Jury Instructions
Raquib contends the trial court erred by failing to provide a written copy of the jury instructions to the jury before its deliberations began. We conclude that there was no material error and, to the extent there was any error, it was not prejudicial.
Although it is generally beneficial, a defendant has no constitutional right to require the jury to have a written copy of the courts instructions during deliberations. (People v. Samayoa (1997) 15 Cal.4th 795, 845; People v. Cooley (1993) 14 Cal.App.4th 1394, 1399.) The trial court has a statutory obligation to provide the jury with the written instructions or advise the jury of their availability upon request, but that right does not implicate any provision of the state or federal Constitution. (Ibid.; see Pen. Code, § 1093, subd. (f).)
Here, following a one-day trial, the trial court failed to inform the jury that it had the right to request a written copy of the instructions and did not initially provide a written copy to the jury. The court told the jury that "I will give you a copy of the instructions to use in the jury room," but the copy had not reached the jury when, approximately 29 minutes into its deliberations, the jury informed the court that it had reached a verdict. At that time, the court realized the instructions had not been provided, and sent a copy to the jury room. One minute later, the jury again indicated that it had reached a verdict.
Thus, the jury was given a copy of the written instructions and, although it continued its deliberations only for a minute thereafter, the jury had an opportunity to review and consider the written instructions at greater length if any jurors believed that it would be useful. Under the circumstances, we cannot conclude that the trial courts failure to get a copy of the jury instructions into the jury room sooner constitutes a legally cognizable error. The trial court instructed the jury orally, and the jurors had both the opportunity to take notes of the oral instructions and review a written copy. The length of deliberations indicates that the jury was not confused by the courts oral instructions and had no questions that required a review of the written instructions. The record supports the conclusion that the jury was convinced that it had made the correct decision based on the strength of the prosecutions case and the oral instructions.
Furthermore, even if there was an error, the error was harmless. For the reasons stated above, Raquib fails to demonstrate "that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Cooley, supra, 14 Cal.App.4th at p. 1399; People v. Ochoa (2001) 26 Cal.4th 398, 447.) There is no merit in Raquibs arguments that the jury instruction regarding guilt for the charged offense or a lesser included offense was overly complicated, or that the prosecution misled the jury in that regard.
No Error in Denial of Continuance
Raquib contends that the trial court violated his right to counsel of his choice by denying a continuance to permit him to retain new counsel before sentencing and, therefore, that he is entitled to a remand for resentencing. We disagree. The record demonstrates that the trial court did not violate Raquibs constitutional right to counsel, or abuse its discretion in ruling that Raquib had not shown good cause for a continuance.
A criminal defendant has the constitutional right to representation by retained counsel of his or her choice, including the right to discharge a retained attorney with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983; see also People v. Lara (2001) 86 Cal.App.4th 139, 152.) But, the right is not absolute and the required "fair opportunity" to secure counsel of choice is limited by the countervailing state interest in orderly and expeditious prosecutions. (Ortiz, at pp. 983-984.) Moreover, the granting of a continuance is discretionary and requires good cause. (Pen. Code, § 1050, subd. (e).) Although trial courts should accommodate continuance requests for the purpose of obtaining new retained counsel, courts must balance the defendants interests against the public interest in the orderly process of justice, and may deny the continuance if the defendant is unduly dilatory or seeks new counsel to delay the proceedings. (People v. Courts (1985) 37 Cal.3d 784, 790-791; see also Ortiz, at p. 983; People v. Lau (1986) 177 Cal.App.3d 473, 479.) We review the denial of a request for continuance for abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Jones (1998) 17 Cal.4th 279, 318.)
At the initial sentencing hearing, Raquib sought to discharge his retained trial counsel, Antonio Zaldana, and the court continued the hearing for 34 days to provide Raquib an opportunity to hire new counsel. At the subsequent hearing, Mr. Zaldana continued to represent Raquib. Zaldana stated that Raquib told him that he had retained a new attorney named Ronald White, but White did not attend the hearing, and had not notified the court that he intended to substitute in as Raquibs counsel.
Although Raquib requested another continuance of 15 days, he did not respond to the courts question concerning the status of attorney White, and provided no information regarding his efforts to find new counsel other than stating that he had "talked to another lawyer." The record also indicates that Raquibs mother, who paid Zaldana fees, was involved in finding a new attorney.
The trial court denied Raquibs request for a second continuance, stating that it had "given [Raquib] more than ample time to get another lawyer." The court stated that Raquib was "trying to play with the proceedings," and has had "more than sufficient time to get counsel to substitute in" on the case, but apparently had failed to make any progress in that regard.
Nothing in the record shows a diligent effort to obtain new counsel. The sentencing hearing took place months after the verdict was rendered and more than one month after the first continuance. Although he previously relied on his mother, there was no indication that Raquib had the financial ability to retain new counsel. And, Raquib did not represent or offer assurances that new counsel would ever be hired or, if so, when he or she would be ready to proceed.
Under these circumstances, the trial court did not err in denying the continuance. The trial court was confronted with a speculative possibility that new counsel would be retained and reasonably concluded that a further continuance would interfere with orderly and expeditious judicial administration. The record also supports the courts belief that Raquib was acting in bad faith for the purpose of delaying the proceedings. The record shows that attorney Zaldana ably represented Raquib at trial and during sentencing, and reveals no likely benefit to Raquib if new counsel entered the case.
The judgment is affirmed.
We concur:
GILBERT, P.J.
YEGAN, J. --------------- Notes: In relevant part, Penal Code section 1093, subdivision (f) provides: "Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy."