Opinion
D072446
10-29-2018
THE PEOPLE, Plaintiff and Respondent, v. THONG VAN TRAN, Defendant and Appellant.
Gary V. Crooks, under appointment by the Court of Appeal, for the Defendant and Appellant. Xavier Becerra, Attorney General of California, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for the Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD268215) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. Gary V. Crooks, under appointment by the Court of Appeal, for the Defendant and Appellant. Xavier Becerra, Attorney General of California, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for the Plaintiff and Respondent.
After finding Thong Van Tran violated his probation, the trial court formally revoked his probation and reimposed his ten-year prison sentence. On appeal, Tran contends the court erroneously: (1) concluded certain information was not protected by the attorney-client privilege; (2) based its revocation decision on privileged information; and (3) denied his motion for a continuance, thus violating his constitutional due process rights by restricting his ability to present his defense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 2016, a San Diego police officer encountered a Toyota Camry that had been reported stolen. The officer initiated a traffic stop, confirmed the car was stolen, and arrested Tran.
The People charged Tran with unlawfully: taking and driving a vehicle (Veh. Code, § 10851, subd. (a); count 1); buying, receiving, concealing selling or withholding a stolen motor vehicle (Pen. Code, § 496, subd. (d); count 2); and possessing burglary tools (§ 466; count 3). As to counts 1 and 2, the People alleged Tran had suffered a previous felony vehicle theft conviction (Veh. Code, § 10851). They further alleged Tran had probation denial priors (§ 1203, subd. (e)(4)), seven prison priors (§§ 667.5, subd. (b), 668), and one strike prior (§§ 667 subds. (b)-(i), 1170.12, 668).
Undesignated statutory references are to the Penal Code.
Tran pleaded guilty to all three counts and admitted he had suffered all of the alleged prior convictions. The court sentenced him to ten years in prison but suspended execution of sentence for five years of formal probation. It ordered Tran to spend a year in jail and released him to the Delancey Street Drug Rehabilitation Program in Los Angeles, California. The court permitted Tran's release to either an authorized representative of the Public Defender or to A.F., a company that contracts with the public defender's office. The court warned Tran: "You'll have five hours from release to check into Delancey Street. . . . And probation will be checking to make sure no more than five hours elapsed from when you got out of custody to when you checked in at Delancey Street." Moreover, Tran agreed to the court's probation order, which required him to report to the probation office within 72 hours from his release from custody.
Defense counsel represented to the court that the public defender's office would arrange with A.F. to transport Tran to the Delancey Street Program.
On April 25, 2017, an A.F. employee drove Tran to the Delancey Street program. The driver brought along a friend, who was neither a coworker nor related "to criminal justice," for companionship during the return trip. The driver said Tran never indicated that their communication was confidential. Tran was not admitted into the Delancey Street program; therefore, the driver drove him back to San Diego. The driver complied with A.F.'s order and took Tran to Tran's home and instructed him to check in with the probation department "first thing in the morning."
Tran did not subsequently contact the probation department, and he was arrested on April 28, 2017. Following an evidentiary hearing, the court found Tran had violated probation and therefore revoked it, lifted the stay and reimposed his 10-year sentence.
The court permitted the defense to voir dire the A.F employee driver to establish whether he had an agency relationship with the public defender's office. Afterwards, the court ruled the driver was not the public defender's agent. Immediately following that ruling, Tran's counsel requested a continuance to file a writ to challenge "the attorney-client privilege which is infringed, and Mr. Tran's right to counsel and right to privacy and right to attorney-client privileges and confidentiality rights are violated." The court denied the motion: "I don't think there's a likelihood you would prevail. And we have an appellate process where the Court of Appeal will review this court's ruling. I don't see a basis to deviate from that. I don't see a basis for an emergency writ."
DISCUSSION
I. Substantial Evidence Supports the Court's Ruling on Attorney-Client Privilege
Tran contends insufficient evidence supports the court's ruling that the driver's instruction to him to contact the probation department first thing in the morning was not protected by attorney-client privilege. Tran contends the communication was privileged because the driver was the public defender's agent. A. Attorney-Client Privilege and Agency
"When a party asserts the attorney-client privilege, it is incumbent upon that party to prove the preliminary fact that a privilege exists." (Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, 397.) Evidence Code section 954 states a client "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer." Evidence Code section 952 defines "confidential communication between client and lawyer" as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which . . . discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom the disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." "The Evidence Code sets forth the requirements of the attorney-client privilege . . . [which] protects the disclosure of communications between attorney and client. It does not protect disclosure of the underlying facts which were communicated [citations], and it does not extend to independent witnesses." (Zimmerman, at p. 396.) "Nevertheless, the privilege is strictly construed because it suppresses relevant facts which may be necessary for a just decision." (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 483.) "Communication by a client retains its confidential nature, though made to an agent of the attorney, if the disclosure to that agent is reasonably necessary for the transmission of the information to the attorney." (Id.) "An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295.) "Agency may be implied based on conduct and circumstances. [Citation.] . . . 'The existence of an agency relationship is usually a question of fact, unless the evidence is susceptible of but a single inference.' " (Zimmerman, at p. 401.)
"Existence of an agency is . . . within the province of trier of fact whose determination may not be disturbed on appeal if supported by substantial evidence." (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1576.) "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) B. Analysis
Substantial evidence supports the court's finding that the driver's instruction to Tran to contact the probation department was not attorney-client privileged. The driver, who was not an attorney, lacked legal training and did not give Tran legal advice. His only task was to drive Tran to and from Los Angeles. Moreover, an independent third-party overheard the communications and therefore his presence defeated any claim that Tran had an expectation of privacy. (People v. Kelly (1961) 195 Cal.App.2d 669, 680-681.) In any event, any error regarding the attorney-client privilege issue would not affect the fact the court had also separately warned Tran to contact the probation department, and Tran knew it was a condition of his probation. City and County of San Francisco vs. Superior Court (1951) 37 Cal.2d 227, relied on by Tran, is not applicable because in that case, a doctor who performed a mental health exam of the defendant was an agent of the defendant's attorneys. (Id. at p. 231.) Here, the driver was not the public defender's agent.
II. The Trial Court Did Not Err in Revoking Tran's Probation
Tran contends the court erroneously relied on his communication with the driver—which he claimed was protected by the attorney-client privilege—to revoke his probation. In light of our resolution of the attorney client privilege issue, we conclude the court did not abuse its discretion in revoking Tran's probation. A. Legal Principles
A court is authorized to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation." (§ 1203.2, subd. (a).) At a probation revocation hearing, the standard of proof sufficient to give the court "reason to believe" that a probationer has violated the conditions of his or her probation is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Probation is a privilege and not a right. (In re York (1995) 9 Cal.4th 1133, 1150.) We review the trial court's probation revocation decision under the substantial evidence standard of review, giving great deference to the trial court's decision. " 'The discretion of the court to revoke probation is analogous to its power to grant the probation, and the court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action.' " (People v. Urke (2011) 197 Cal.App.4th 766, 773.) B. Analysis
We conclude substantial evidence supports the court's decision to revoke Tran's probation. Besides the driver's testimony that he instructed Tran to contact probation, the judge stated that in earlier proceedings he and Tran "had [a] direct conversation in the change of plea and sentencing [hearing] about what he needed to do to get the benefit of [probation] and walking away and not contacting probation and his attorney was not in that conversation." Additionally, a condition of Tran's probation specified: "Report to the P.O. as directed/within 72 hours of any release from custody." After Tran was rejected from the Delancey Street program, he failed to contact his attorney or the probation office within the stipulated period of time. Therefore, Tran violated his probation and the court did not abuse its discretion by revoking his probation.
III. The Court Did Not Err by Denying Tran's Continuance Request
Tran contends the court violated his constitutional right to due process by denying his request for a continuance, arguing he was "suddenly confronted with evidence that would be presented in the probation revocation hearing that seemed to be, and turned out to be, fatal to [his] chance to stay on probation and seek a drug treatment program." He adds, "Had [he] been able to pursue a writ . . . it is likely he would have been successful . . . and there is a reasonable probability that the outcome of the probation revocation proceeding would have been different."
Under section 1050, subdivision (e), continuances in criminal proceedings "shall be granted only upon a showing of good cause." Whether good cause exists for a continuance rests in the trial court's sound discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 650.) Our review is for an abuse of that discretion. (Ibid.) Tran bears the burden of establishing an abuse of discretion. (Ibid.) "[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (Ibid.)
The trial court did not abuse its discretion. The court correctly pointed out that on this record, the legal issue of whether the driver was acting as the public defender's agent was not a close call warranting an emergency writ; rather, the issue would be resolved in the ordinary appellate process. In fact, we have found no error in the court's ruling on the agency relationship issue or its decision to revoke probation.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. AARON, J.