Opinion
B195101
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. ROMAN RODRIGUEZ, Defendant and Appellant.
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Roman Rodriguez (Rodriguez) appeals from the judgment entered following a jury trial which resulted in his conviction of second degree burglary of a motor vehicle (Pen. Code, § 459) and receiving stolen property (§ 496, subd. (a)). The trial court granted Rodriguez three years formal probation on the condition he serve the first 270 days in county jail.
Rodriguezs contention there is insufficient evidence to support his conviction of burglary is without merit. Also without merit is his contention the trial court abused its discretion when it denied his implied request for a continuance to enable him to retain private counsel. Accordingly, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecutions case.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that at approximately 12:30 a.m. on July 9, 2006, Cindy Salazar (Salazar) parked her 2000 Toyota Corolla in front of her neighbors house on De Garmo Avenue in Sun Valley. Salazar had rolled up the windows and locked the car. She had left her wallet in the car, inside a console between the drivers and the passengers seats.
Salazar returned to her car at approximately 1:00 p.m. and found that the front passengers side window had been shattered. Salazars wallet, which contained her license, credit and debit cards, was missing. Salazar, who had gone to elementary school with Rodriguez and knew that he lived in an apartment building across the street, had not given Rodriguez permission to enter her car or to take her wallet. She had not given Rodriguez permission to have in his possession her Wells Fargo debit card.
Approximately two hours after discovering that her car had been broken into, Salazar took the car to "the Department," then to Los Angeles to have it fingerprinted.
On the morning of July 9, 2006, Francisco Balbuena (Balbuena) parked his 1992 Honda Civic in front of a neighbors house on Lanark Street in Sun Valley, approximately one-half block from where Lanark intersects with De Garmo Avenue. When Balbuena left the car, the windows were rolled up and the car was locked. Inside the car was a Kenwood stereo worth approximately $600. The stereo had a removable "faceplate," which Balbuena had removed from the front of the stereo and taken inside the house with him.
Later that morning, Balbuenas father told him that someone had broken into the Civic. When Balbuena went outside to investigate, he saw a neighbor and several police officers standing near his car. Balbuena saw that the front, passenger side window had been shattered and that the car stereo and a small receiver for satellite radio were missing.
The following day, Balbuena took the Civic to the police station to have it dusted for fingerprints.
Balbuena did not know Rodriguez and had never given him permission to enter his car or to take his car stereo and satellite radio receiver.
Los Angeles Police Officer Francisco Albarran (Albarran) lives in a house on Lanark Street in Sun Valley, approximately 600 feet from the intersection of Lanark and De Garmo Avenue. Between 5:30 and 6:00 a.m. on July 9, 2006, Albarran was sitting on his front porch putting on his shoes when he heard a "thump" which sounded like a car door being closed. Albarran got up, walked out onto his porch and looked to his right to see Rodriguez standing approximately 10 feet from Balbuenas Honda Civic. Albarran, who was approximately 60 feet from Rodriguez, watched as Rodriguez walked away from the car and toward Albarran. Albarran could see that Rodriguez was carrying a silver car stereo with its wires exposed. When Rodriguez, who seemed preoccupied, was in front of the chain link fence in front of Albarrans house, Albarran asked Rodriguez, " `Is that your car stereo? " Rodriguez turned around, looked at Albarran and replied, " `Yes, it is mine, " then picked up his pace as he continued to walk up the street. Albarran walked over to Balbuenas Civic and saw that the front, passenger side window had been shattered and that the car stereo was missing. Albarran saw only exposed wires where the stereo had been.
Albarran looked at Rodriguez, who glanced back in Albarrans direction as he continued to walk away. Albarran decided he was going to arrest Rodriguez and he walked back to his driveway, got in his car and began driving down Lanark. However, there is a curve in the street and, as Rodriguez rounded it, Albarran lost sight of him. Albarran drove around the neighborhood until he spotted Rodriguez standing next to a black Ford Explorer on De Garmo, near the intersection with Lanark. The door to the Explorer was open and Rodriguez was holding a screw driver in his right hand.
Albarran got out of his car with his gun drawn, informed Rodriguez he was a Los Angeles Police Officer and told Rodriguez to step away from the Explorer. Rodriguez hesitated, threw the screw driver into the Explorer, closed the door, then stepped away from the car. After Albarran had Rodriguez kneel down, the officer called 911. Los Angeles Police officers arrived at the scene approximately five minutes later.
Los Angeles Police Officer Andrew Kukla (Kukla) responded to Albarrans 911 call. When Kukla arrived at the scene, he saw Albarran, Rodriguez, and two uniformed officers. Rodriguez had been taken into custody. After determining that the owner of the Explorer was Rodriguezs father, Kukla had the father unlock the car. From the front passenger seat, Kukla recovered a screw driver. Kukla testified screw drivers such as the one recovered from Rodriguezs fathers Explorer are often used to burglarize cars. The screw driver can be jammed into the lock, or used to pry open a door or to break a window.
Kukla and other officers "walked the path from where the [burglary] occurred to where [Rodriguez] was taken into custody," checking under cars and in bushes along the way. They did not, however, find Balbuenas car stereo.
Los Angeles Police Officer Matthew Roemmich (Roemmich) also responded to Albarrans 911 call. Roemmich placed Rodriguez in handcuffs, then transported him to the police station. As part of the booking process, Roemmich searched Rodriguez. In Rodriguezs clothing, the officer found "glass fragments." From Rodriguezs front pocket, Roemmich recovered a Wells Fargo Bank debit card bearing the name "Cindy S. Salazar."
2. Defense evidence.
It was stipulated that Ronald Raquel (Raquel) compared the glass fragments recovered from Rodriguezs clothing to a fragment of glass taken from the window of Balbuenas Honda Civic. Raquel determined the fragments "could not have a common origin" because they varied in thickness and tint.
CONTENTIONS
Rodriguez contends: (1) there is insufficient evidence to support his conviction of the burglary of Balbuenas car, and (2) the trial court committed reversible error when it denied his implied request for a continuance to enable him to retain private counsel.
DISCUSSION
1. Substantial evidence supports the jurys finding Rodriguez burglarized Balbuenas car.
"In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we `examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] `[I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a witnesss credibility. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) " ` "Reversal . . . is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" " (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
Penal Code section 459 provides in relevant part: "Every person who enters any . . . vehicle as defined by the Vehicle Code, when the doors are locked, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
In the present case, Rodriguez concedes "the evidence at trial showed that Balbuenas Honda was entered when the doors had been locked and that Balbuena was deprived permanently of his Kenwood car stereo and his . . . satellite receiver." However, Rodriguez contends there is no substantial evidence he was the person who committed the burglary. The contention is without merit.
"When . . . a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendants acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary conviction[]." (People v. Mendoza (2000) 24 Cal.4th 130, 176; see Nugent v. Superior Court (1967) 254 Cal.App.2d 420, 425.) Here, Albarran saw Rodriguez, who was standing approximately ten feet from the Honda Civic from which a stereo had been taken, in possession of a car stereo with its wires exposed. From this evidence, it can be reasonably inferred Rodriguez was in possession of the stolen stereo.
There is also sufficient corroborating evidence. Officer Albarran was sitting on his front porch when he heard a "thump" which sounded like a car door being closed. When the officer got up and looked in the direction from which the sound had come, he saw Rodriguez standing approximately 10 feet from Balbuenas Honda, holding a car stereo with exposed wires. As Rodriguez walked away from the car and toward Albarrans house, Albarran asked Rodriguez if the stereo he was carrying belonged to him. After answering in the affirmative, Rodriguez picked up his pace as he walked up the street and around a curve in the road, out of Albarrans sight. While out of Albarrans sight, Rodriguez disposed of the car stereo. (See Nugent v. Superior Court, supra, 254 Cal.App.2d at p. 425 ["[I]ncriminating inferences can be drawn from the fact that after the three suspects left the coffee shop . . . [one of the three] tried to hide the [stolen goods]."]) When Albarran next saw Rodriguez, he was standing next to a Ford Explorer, holding a screw driver, a common burglary tool. "Possession of burglars tools reasonably tends to corroborate [an] inference of guilt. [Citations.] This is so even if it is not shown that the tools were used in the particular burglary if . . . they are of a kind that could have been used in the burglary." (Ibid., original italics.) Here, the screw driver could have been used to break the window on Balbuenas car. This evidence, considered with the evidence showing Rodriguez was in possession of the stolen stereo, substantially supports the jurys finding Rodriguez was the individual who burglarized Balbuenas car.
2. The trial court properly exercised its discretion when it denied Rodriguezs implied request for a continuance to enable him to retain private counsel.
a. Background.
On August 29, 2006, Rodriguez was charged by information with one count of second degree burglary of a vehicle and one count of receiving stolen property. On Thursday, October 26, 2006, the day trial was set to begin, the trial court, defense counsel and the prosecutor had the following exchange: "The Court: All right, is there some issue that I should be aware of, [defense counsel]? [¶] [Defense Counsel]: When I came in about 10 minutes ago the clerk advised me that my client . . . told her he wishes to hire private counsel. So I broached the situation with him. He told me he just spoke to his boss this morning, who advised him to get private counsel. I think part of the reason has to do with the fact that when I called Mr. Rodriguez yesterday to advise him we were going to start the trial today, I told him I will be here until noon, which was the understanding yesterday, and then we would be resuming on Monday. So he did not make arrangements to take the entire workday off today, and he called work to basically tell them that I told him that he has to be here the rest of the day. This transpired and he no longer wants me as his attorney. [¶] The Court: Well, the People are ready and your witnesses are on call? [¶] [The Prosecutor]: Yes, your honor. [¶] The Court: A jury panel has been ordered. I know that. We excused him at a quarter to 10:00 so you could finish your calendar, but I had two custody matters and we continued those matters to trail behind this case. And it is day eight of 10. The timing is not good. [¶] The People are ready. We are not going to inconvenience witnesses by having them come back. That is far more important [than] the defendant missing a half a days work. And if he needs a letter, I am sure your office will advise — but we may be through if we can get this jury picked so he can go back as early as, hopefully, 2:30 or 3:00."
When defense counsel then informed the trial court that Rodriguez wished to be heard, the following colloquy took place: "[Rodriguez]: I want to be defended with someone private. [¶] The Court: Thats not an automatic right to depend on. Your timing — since the case is ready for trial, and you know what we have been going through the last couple, three days to get this case on schedule. Eight of 10 is the day the jury trial starts, and we are not — I am denying your request for private counsel. It is 11:00 in the morning. The jury panel is on the way. This court has been available since 9:30. We have been waiting for the jur[y] to get here. [¶] [Rodriguez]: I didnt have money and so my boss wants to help me out. [¶] The Court: Your request is denied, Mr. Rodriguez. The witnesses are going to be inconvenienced. They have been subpoenaed to be here. We are going to pick a jury. The jury panel of 40 people is coming across the street. They have been ordered especially for this trial. Okay."
After the prosecutor explained that he was willing to make Rodriguez an "offer," under the terms of which Rodriguez would plead guilty or no contest to count two, receiving stolen property, in exchange for "180 days in county jail, plus restitution," Rodriguez stated, "But I would like justice, you know. I would like to get a real lawyer." The following colloquy then occurred: "The Court: Look, he has nothing to do with that. It is at my discretion. I have denied your request for a lawyer. He is merely stating there is an offer if you are interested in taking it. Before the jury comes into this courtroom, you can. But if — [¶] [Rodriguez]: I just feel that they are not defending me right."
A panel of prospective jurors then arrived and voir dire was conducted. After both parties accepted a panel, the trial court made the following comment: "All right, before the clerk swears the jury in, I am going to state one thing. It may cause a problem for some. I have an all-day hearing tomorrow that has been put over and put over. I have to do it and, therefore, that means in this trial you would not be required to be here tomorrow, but you will come back on Monday, and I believe the case will be submitted to you then the next day, Tuesday. [¶] As I said, it is a very short day, but if there is anybody with a problem with having a long weekend, raise your hand and tell me now."
b. Discussion.
Rodriguez contends the trial court committed per se reversible error by denying him his right to be defended by the counsel of his choice.
"The Sixth Amendment provides that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence. [It has] previously [been] held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." (United States v. Gonzalez-Lopez (2006) 548 U.S. ___ [126 S.Ct. 2557, 2561].) However, "the right to counsel of choice `is circumscribed in several important respects. " (Ibid.) It has been recognized that a trial court has wide latitude in "balancing the right to counsel of choice against the needs of fairness, [citation], and against the demands of its calendar [citation]." (Id. at pp. 2565-2566.)
Here, the record establishes Rodriguez did not have any particular private counsel in mind when he made his request. Accordingly, in order to grant his request to retain private counsel, a continuance of proceedings would have been necessary. "The burden is on appellant to establish an abuse of judicial discretion in the denial of his request for continuance to secure new counsel. [Citation.] The resolution of the issue depends on the circumstances in each case. [Citations.] The right of a defendant to appear and defend with counsel of his own choice is not absolute but must be carefully weighed against other values of substantial importance such as those seeking `the orderly and expeditious functioning of judicial administration. [Citation.] A defendant is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory [citation] . . . ." (People v. Rhines (1982) 131 Cal.App.3d 498, 506; see People v. Blake (1980) 105 Cal.App.3d 619, 623-624 ["[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."].)
Here, there is no indication Rodriguez attempted, during the nearly two months which elapsed from the time of the filing of the information to the trial date, to retain private counsel. It was only after appointed counsel informed Rodriguez that he would need to be in court for the full day, instead of just until noon, that Rodriguez indicated he had spoken to his boss, who recommended that he obtain private counsel. We note Rodriguezs reasons for wishing to obtain private counsel were somewhat vague. He simply stated he wanted a "real lawyer" and that he "just fe[lt] that [his appointed counsel was] not defending [him] right."
In addition, although Rodriguez stated his boss wished to "help [him] out," there is no evidence Rodriguezs boss intended to immediately give to Rodriguez the money necessary to retain private counsel. "The condition of being `financially able for the purposes of employing counsel of choice must be limited to exclude those who cannot hire the services of chosen counsel at the time of the proceedings against him. To hold otherwise would be to encourage frivolous and unjustified delay in and misuse of the trial process." (People v. Lefer (1968) 264 Cal.App.2d 48, 50.)
Here, the late date on which Rodriguez expressed his desire to retain private counsel, the vague reasons given for his wish to replace appointed counsel, the fact that Rodriguez had no particular attorney in mind, and the uncertainty as to whether his boss intended to immediately advance to Rodriguez the funds to retain such counsel, all clearly indicate the trial court acted properly. This is particularly so because witnesses had been subpoenaed, the jury panel was "on the way" to the courtroom and, as the trial court noted, the matter was otherwise "ready for trial." Under these circumstances, the trial court properly exercised its discretion when it denied what was in effect a motion for a continuance so Rodriguez could retain private counsel. To have continued the trial "at such a late date on such nebulous grounds would [have] adversely affect[ed] the orderly administration of justice." (People v. Johnson (1970) 5 Cal.App.3d 851, 859.)
Rodriguezs reliance on People v. Byoune (1966) 65 Cal.2d 345 is misplaced. Byoune was charged by information with grand theft on January 21, 1965. He was arraigned on January 29th, a public defender was appointed to represent him and the matter was set for trial on March 25th. On March 24, 1965, the information was amended by adding a second count charging Byoune with robbery. The following day, before commencement of the selection of jurors, Byoune made a motion for a continuance so that he could retain private counsel. "At the time of his motion for continuance [Byoune] stated that he had not retained private counsel prior to that time because he was charged only with grand theft and was satisfied with assigned representation as long as that was the only charge to be brought against him. He said, however, that the addition of the more serious charge of robbery caused him to reconsider his decision. It is clear that he promptly informed the court of his desire to obtain private counsel after he learned of the robbery charge." (Id. at p. 347.) The court determined the addition of the new, more serious charge "justified [Byounes] action in asserting his right to retain chosen counsel within a reasonable time after the information was amended." (Id. at p. 348.) In addition, no circumstances appeared to warrant "the limitation of this right in the interests of efficient judicial administration. [Citation.] [Byounes] motion for continuance was made before the commencement of trial, and the record contain[ed] no indication that any significant inconvenience would have resulted if the jurors and witnesses had been asked to return at some later date . . . ." (Ibid., footnote omitted.) The court held, under these circumstances, Byounes "motion for a reasonable continuance to obtain counsel of his choice should have been granted and that the denial of that motion constituted a violation of [his] constitutional rights." (Ibid.)
In the present matter, the prosecutor did not amend the information to charge Rodriguez with an additional, more serious offense. In addition, while in Byoune it was apparent the defendant made his motion for a continuance as soon as was feasible after the information had been amended, in the present case Rodriguez waited nearly two months after he was charged, until the day trial was to begin, to express his desire to substitute counsel. On the record before us, it cannot be said the trial court abused its discretion when it denied Rodriguez implied request for a continuance to obtain private counsel. (See People v. Johnson, supra, 5 Cal.App.3d at pp. 858-859.)
Neither do the courtss decisions in People v. Courts (1985) 37 Cal.3d 784 (Courts) and United States v. Gonzalez-Lopez, supra, 126 S.Ct. 2557 (Gonzalez-Lopez) require a contrary conclusion. In Gonzalez-Lopez, Gonzalez-Lopezs family hired an attorney to represent him. However, after his arraignment, Gonzalez-Lopez contacted another attorney, who agreed to represent him. When the trial court, for erroneous reasons, effectively denied Gonzalez-Lopezs timely motion to substitute counsel, it violated his right as a defendant, who did not require appointed counsel, to choose who would represent him. (Id. at p. 2562.) In the present case, Rodriguezs motion was untimely; he waited until the day trial was set to begin to make known his wish to substitute private, retained counsel for his appointed counsel. Further, Rodriguez had no particular counsel in mind when he made his request and it is not clear that his boss intended to immediately advance Rodriguez the funds necessary to retain private counsel. In Courts, the defendant, Courts, entered pleas of not guilty to charges of murder and the use of a firearm on July 19, 1982. A public defender was appointed to represent Courts and trial was set for October 26th. In early September, Courts approached a local attorney, Russell Swartz (Swartz), with the intention of hiring Swartz to represent him at trial. However, at that time, Courts did not have sufficient funds to hire Swartz. Courts continued in his efforts to raise the fee and, at a hearing held on October 18th, the public defender appointed to represent Courts indicated Courts wanted a continuance in order that he might hire private counsel. The trial court denied the request. On October 21st, Courts paid to Swartz a retainer and Swartz agreed to take the case if the trial court would grant a continuance. The trial court, however, refused. When the appellate court was called upon to determine whether the trial courts failure to grant a continuance constituted an abuse of discretion in the face of Courtss well known desire to be represented by private counsel and counsels willingness to take the case, it concluded the trial court erred. The record established Courts "[had] engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date[,]" that "a lawyer-client relationship had been established," and that "the October 18th motion represented a timely assertion of [Courtss] intentions." (People v. Courts, supra, 37 Cal.3d at pp. 791, 792, original italics.) In the present case, Rodriguez did not engage in a good faith effort to obtain private counsel. As previously noted, he waited until the day trial was set to begin to make his wishes known, gave vague, nebulous reasons for his desire to substitute counsel and could not show he had the funds necessary to retain private counsel.
DISPOSITION
The judgment is affirmed.
We concur:
CROSKEY, J.
KITCHING, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.