Opinion
C087268
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MARTEZ WOODARD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF01182)
Following a mistrial, a second jury found defendant Antonio Martez Woodard guilty of kidnapping (Pen. Code, § 207, subd. (a)) and first degree burglary of an occupied residence (id., § 459) (with enhancements for a principal being armed with a gun as to both counts, id., § 12022, subd. (d)) based on the acts of an accomplice when defendant was not physically present. The trial court sentenced him to state prison for consecutive terms for the two offenses, an aggregate sentence of 13 years four months.
On appeal, defendant does not contest the sufficiency of the evidence to establish that the accomplice committed the offenses. Rather, he contests the failure of trial counsel to challenge the qualifications of the detective who testified as an expert about circumstantial evidence from cellular phone records that connected defendant with the crimes, or to object to hearsay to which the detective testified. Defendant also claims the trial court erred in excluding evidence to impeach the credibility of the victim and of defendant's ex-girlfriend, and in denying his motion for a continuance to obtain substitute counsel for purposes of filing a motion for new trial. Finally, he maintains that he cannot be punished separately for the kidnapping and burglary, a point the People concede. We shall affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The parties exhaustively summarize the facts in the extensive record. However, as defendant does not contest the sufficiency of the evidence of the underlying crimes, his arguments for the most part do not implicate such evidence, and we are not called upon to assess prejudice except for one minor matter. We thus provide a greatly elided statement of the facts.
The victim, a resident of Butte County, met defendant in June 2015 on a flight to Sacramento from North Carolina, where defendant lived. They exchanged phone numbers. He came to visit her. Eventually, she agreed to help facilitate purchases of marijuana for him with two growers ("Franky" & "Joe"), for which he paid her a fee. She was involved in three to 10 transactions, the last being in November 2015. Defendant was familiar with her family. Defendant brought others with him to California to drive if she were not available, because he did not have a license. The victim recognized one of these people in a photo exhibit, but did not know his name (later identified at trial as Livan Nyangaresi, a friend defendant met in college, whom he and others called "Von"). There had been a romantic relationship between the victim and defendant, but after she broke off with him she blocked his calls and refused to reply to his persistent efforts to contact her (which included coming to her home once in her absence and giving his phone number to her niece to give to her). Other than Von, no one associated with defendant had ever been to her home, and Von had remained outside in the car on that occasion.
Defendant testified that Von came along on almost every one of defendant's trips to California because he had a valid driver's license.
One of the marijuana shipments defendant and the victim sent via UPS was intercepted in May 2015 at the home defendant shared with his pregnant then-girlfriend (with whom he had a relationship from 2014 until his 2017 extradition to Butte County). Defendant refused to accede to calls from the police to come home, at which point they arrested defendant's then-girlfriend. Defendant told the victim about this, saying he was upset because (among other reasons) he did not have the money to replace the product. Defendant was also intercepted in Arizona driving marijuana back to North Carolina in January 2016.
When defendant finally surrendered to the police the following year, the charges against the ex-girlfriend were dropped. However, she lost custody of her older daughter from a previous marriage as a result.
Defendant testified that he was paid but at a lesser rate for the seized shipment because his ex-girlfriend had been arrested and he was facing charges, and to make sure he did not "rat anybody out."
In March 2016, the victim was living on a multi-home property. Her sister lived in an adjoining residence. The victim woke up feeling ill. She sent her children off to school, texted her current boyfriend, and went back to bed. She heard the front door open, and then a stranger came into her bedroom. (She later learned the kidnapper's name was Demetrius Elliott.) He had a gun in his hand.
He duct-taped her hands behind her back and her mouth, and took her into the living room, removing the duct tape after a while. He spoke to someone on a flip phone to say that he was in the home; he was also using a smartphone to text. The kidnapper told her that Franky had "ripped them off for some weed" and started looking through the contacts on her phone for his number, but she had previously deleted it. He returned her phone to her, and she began texting people to try to obtain the number, but was not successful. When she told the kidnapper this, he said she would need to find other marijuana to "make it right." After talking on his phone, the kidnapper asked if she had any money, because they had to leave. He took the cash out of her wallet. She had her phone, but he had warned that if she tried to summon help he knew where her children went to school, and knew her sister was a bus driver. He entered the address of a motel in Marysville into the GPS on her phone and told her to drive.
During her texting, she had sent a message to her incarcerated boyfriend (who had a cell phone nonetheless) about her situation, warning him not to reply, then deleted the conversation. She also texted her sister, asking her to come over. Her sister texted back that she would come over after she was done shopping. The victim replied that she was going to Marysville. Immediately after her response to the victim (which was about 11:30 a.m.), the sister received an instant message from the incarcerated boyfriend saying only that something weird was going on with the victim and to check on her.
The kidnapper did not appear to have a vehicle with him. They used the victim's car. When the kidnapper left the car to open the cattle gate, the victim called her sister to say that she was going to Marysville to make a payment on her car, which she knew would alert the sister because she had just done that the previous day. The victim indicated that she was not alone, and said "yes" when the sister asked if she should call the police.
The victim headed toward Gridley (which was in the opposite direction from Marysville). She told the kidnapper that she needed to use a restroom. He said to pull over at a fast-food restaurant and warned her against trying anything "funny." She was able to text her sister about her destination.
In the bathroom at the restaurant, she asked a woman to tell the staff to call the police and mention that the man outside the door had a gun. When she left the bathroom, she could see the police in the parking lot. As the police entered, the kidnapper locked himself in the bathroom. He eventually emerged, and the police arrested him, at which point the victim heard that the kidnapper was from North Carolina, which led her to suspect defendant's involvement. The police found the gun in a toilet seat cover dispenser in one of the bathroom stalls. (Defendant's ex-girlfriend testified that she had seen defendant with a similar gun.) They also recovered a Coolpad smartphone (number unspecified) from the victim's car, and a flip phone from the kidnapper's person. We turn now to further threads of circumstantial evidence connecting defendant with this kidnapping.
The kidnapper ultimately entered pleas of no contest to kidnapping and to firearm and recidivist enhancements.
Neither defendant nor the kidnapper was registered at the motel to which the kidnapper had directed the victim, but defendant was registered at a different Marysville motel with a second adult, where he listed a North Carolina home address and license plate (which was for a rental car from North Carolina). The California Highway Patrol stopped the rental car a couple of days after the kidnapping in Truckee for a traffic violation. Von was driving and defendant was the passenger.
Before going further, we note there was ample evidence going either way regarding whether defendant's ex-girlfriend was or was not biased against him. She testified that defendant had been physically abusive, which made her fearful of him and a reluctant witness. (This issue also arose in the custody proceedings for her older daughter.) Defendant admitted warning her that she would probably be charged as well if she got involved in the investigation, something he had mentioned to his sister. Defendant's sister testified that as late as October 2017, the ex-girlfriend told her that she still loved and missed defendant, and was praying for him. Defendant testified that his ex-girlfriend was extremely jealous about his infidelities. She once confronted defendant at another woman's home with a gun (a point the ex-girlfriend admitted in her testimony), and had put a gun to his head when she saw that he had a text from another woman. Defendant also testified that she had told him her ex-husband would be willing to return the older daughter to her custody if defendant were out of the picture. Defendant's sister, who claimed to have a close relationship with the ex-girlfriend, also testified about the ex-girlfriend brandishing the gun at the other woman, and her jealous nature. Both defendant and his sister denied the ex-girlfriend's claims in her testimony about physical abuse, and asserted she did not have any basis in fact to fear him.
The lead detective testified that the state's victim compensation fund had provided $9,000 to the ex-girlfriend for the costs of relocating because of her fear of retribution, which had been a financial hardship.
Defendant's ex-girlfriend testified that he had called her to say that the kidnapper had messed up by not following instructions and was arrested. He said the kidnapper had been told to take the victim to a motel room and hold her until Franky brought money. The kidnapper called her frequently to get in contact with defendant. Defendant had told her he was paying for the mother of the kidnapper's child to go to California to see him, and would be funding the kidnapper's defense.
In his testimony, defendant denied all this, as did other witnesses.
In the kidnapper's pocket, the police had found a piece of paper that included the name "Ton" and a cell phone number ending in 3392. (Defendant's ex-girlfriend testified "Ton" was the nickname most of defendant's friends used for him.) As the kidnapper sat in the interview room at the police station, he called his girlfriend and asked her to call Ton. The phone number for the kidnapper's girlfriend called and then received a call from the 3392 number, which had been detected in the Marysville vicinity since March 3; it had been detected in the victim's vicinity on the morning of the kidnapping before returning to Marysville. The 3392 phone was thereafter detected by cellular towers heading south toward Sacramento, where it remained until March 6, at which point it was detected in Truckee.
Defendant's ex-girlfriend testified that when she met him, he had a phone number ending in 1135 registered with AT&T. She switched that number to her Verizon plan. After her arrest in May 2015, she changed his phone under her plan to a 3392 number. Defendant had spoken with her from California on the 3392 phone. Under penalty of perjury, defendant had previously stated that the 3392 number was his regular phone, but he had given it to Von because Von's phone was limited to wireless fidelity (Wi-Fi), and thus it was Von who placed all the 3392 calls at the time of the kidnapping. Defendant had also given a flip phone to the kidnapper with a 2986 number that defendant apparently acquired in Arizona after his arrest. Defendant claimed to have been using the 1135 phone in California as a so-called "burner" phone that did not have a contract with a cellular carrier. The 1135 phone number was inactive during the pertinent period according to AT&T records.
Von in fact had his own phone number ending in 1463. It had continuous activity through cellular networks both before and after the kidnapping in areas of Marysville (though not near the victim's home) and Sacramento, then Truckee and points east.
As we elaborate in the Discussion, the lead detective testified this meant Von's phone was not limited to Wi-Fi, as defendant claimed.
There were texts between the kidnapper's Coolpad smartphone and the 3392 number in February 2016, the Coolpad noting that it was limited to text, and (in response to the latter's question in promoting a trip out west to collect on a debt) said it did not have a valid driver's license; the latter urged the former to find someone who could drive. The 3392 phone directed the Coolpad to tell people to use the 2986 flip phone to contact the kidnapper because 3392 was "my boy's phone."
Defendant had also told his ex-girlfriend that he was going to California to get money from Franky, and Von would be driving.
There were multiple texts between the flip phone 2986 to the 3392 number on the day of the crime, many of which displayed familiarity with the victim, her family, and her property. We do not need to detail them, beyond noting at one point that 3392 asked if the victim knew that the person with the 2986 was "[his] boy," and telling 2986 not to disclose this. The 3392 phone also sent the addresses for the motel where defendant had been staying and the motel to which the kidnapper directed the victim.
While in custody in December 2017, defendant was recorded in a call to an unidentified person. Defendant cautioned the person to tell Von not to respond to any calls from California, because Von was "in the clear" and returning to his native Africa in a few days for the holidays and would be out of reach of the investigation. Defendant also asked the person to buy commissary products for the accounts of the kidnapper and defendant, giving a list of items.
DISCUSSION
1.0 Trial Counsel Was Not Ineffective for Failing to Object to the Expert's Qualifications
As defendant states it, his argument regarding trial counsel's ineffectiveness revolves around the failure to object to the lead detective's expertise for expressing an opinion that a cell phone limited to Wi-Fi access could not have any activity that a cellular network tower could detect, and that the 1135 number originally assigned to AT&T and still on its records as inactive could not have been ported to another carrier for use without any indication in AT&T's records. We agree with the People that reasonably competent trial counsel would not have considered an objection to be successful, and therefore reject the claim of ineffective assistance of counsel for failure to object without needing to address whether the detective was unqualified as a matter of law.
The argument must be framed in this manner because defendant has otherwise forfeited the issue on appeal. (People v. Dowl (2013) 57 Cal.4th 1079, 1089 [failure to object in trial court forfeits argument on appeal because reviewing court unable in first instance to determine sufficiency of foundational evidence of expertise in absence of trial court's exercise of discretion].)
A defendant must first demonstrate that trial counsel's action or omission fell below an objective standard of reasonableness according to prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) If a reason does not appear in the record, we reject a challenge on direct appeal unless any reasonable attorney would not have made that choice. (People v. Pope (1979) 23 Cal.3d 412, 426.) The failure to object is particularly ill-suited for resolution on direct appeal in most cases. (People v. Catlin (2001) 26 Cal.4th 81, 165.) Trial counsel is not obligated to make frivolous objections for the convenience of providing appellate issues. (People v. Thompson (2010) 49 Cal.4th 79, 122; People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Riel (2000) 22 Cal.4th 1153, 1202; People v. Memro (1995) 11 Cal.4th 786, 834.) The qualification of an expert is a matter within the discretion of the trial court, while the value of an opinion in light of the expert's training is for the jury to weigh. (People v. James (1989) 208 Cal.App.3d 1155, 1164.)
The lead detective testified that he had been trained to do forensic downloads of cell phones during a week-long course, and had recently been recertified. He had performed numerous downloads from cell phones. After explaining the distinction between a forensic download and a report from a cell phone carrier (one shows the content of the phone itself while the other details the phone's activity and the location of cellular towers through which the phone obtained service), he testified that he was trained in the use of software that analyzes the "gibberish" of carrier reports to give a geographic visual of the cellular towers implicated, and had used this software on numerous occasions. He acknowledged being one of a limited number of detectives in the sheriff's department with cell phone expertise, who frequently interacted with cellular carriers (gaining additional knowledge); "I do a lot of cell phones." The jury was instructed that it was not obligated to accept an expert's opinion as true or correct, and should consider the expert's degree of expertise, the rationale for the opinion, and the information on which the opinion relied.
Defendant fails to show that either of the opinions he challenges would be so far outside the detective's formal training and interactions with cellular carriers that any reasonable attorney would have raised an objection to the detective's expertise. This is not merely a question of what the record as it exists shows, but could also include matters outside the record of which trial counsel was aware (perhaps in previous interactions with the detective in other trials), or whether we can assume trial counsel believed as a matter of tactics that further qualifications would simply be elicited in response to any challenge.
Defendant emphasizes that the testimony regarding porting of an inactive number to another carrier was nothing more than repeating the hearsay statement of the AT&T representative about the meaning of a cell phone record with which the detective was apparently unfamiliar (learning that it indicated that AT&T had the phone number on its records as inactive and it had not been assigned to any subscriber through a different carrier). But this is the subject of defendant's next argument, and does not have anything to do with the level of the detective's expertise. Defendant thus fails to establish ineffective assistance in the lack of objection to these two points of the detective's testimony as unqualified.
2.0 Trial Counsel Was Not Ineffective for Failing to Object to the Expert's Testimony on Hearsay Grounds
Alternately, defendant asserts it was ineffective assistance to fail to object to the detective's testimony about his conversation with AT&T on grounds that it was case-specific hearsay (People v. Sanchez (2016) 63 Cal.4th 665, 682-683). He notes in his reply brief that his reference in his opening brief to other hearsay statements in the detective's testimony was simply "to demonstrate how much hearsay trial counsel had let slide without an objection." (We therefore do not need to consider the People's arguments with respect to these other hearsay statements.)
The People properly acknowledge that the detective's conversations with AT&T were case-specific hearsay, but point out that trial counsel could reasonably have concluded that an objection on this basis would simply have led to direct testimony from an AT&T representative to the same effect. We agree. Defendant asks us to speculate that the failure of the prosecutor to proceed in this fashion in the first place indicates that such an AT&T witness was not available. We disagree. As a matter of convenience, it made sense to present this hearsay through the detective rather than calling every peripheral witness, if the defense was amenable (as apparently it was) to the shortcut. Defendant's speculation is not sufficient on direct appeal to establish a tactical failing on trial counsel's part.
3.0 Exclusion of Evidence Impeaching the Victim Was Not an Abuse of Discretion
The defense filed identical briefs (in opposition to the prosecution's motions to exclude) before both trials in favor of admitting evidence to impeach the victim. At the second trial, the court stated that its prior ruling on this motion still applied.
The evidence involved a 2014 report to authorities in which the victim claimed that she had been drugged and was now being held in a van heading to Sacramento in order to force her into prostitution. She described her captors as being "seven [B]lack men and women," who were self-described convicted felons brandishing firearms, and who had also sexually assaulted her. Law enforcement intercepted the van and detained its occupants, at which time the victim admitted that she had not actually seen any weapons but had heard references to them. The defense contended that no firearms were found, there was no evidence that the victim had been drugged or kidnapped for purposes of prostitution, and no adjudication of sexual assault. The defense sought to admit details to establish the victim's history of racial bias (defendant also being Black) through false accusations of kidnapping and embellishment.
The prosecutor argued at the hearing in the first trial that there had never been any formal determination that the 2014 report was in fact false. The defense argued that the totality of the circumstances in a police report (not in the record) "show[ed]" that it was not a kidnapping, and stated the intention simply to question the victim rather than call anyone involved in the 2014 incident as witnesses. The trial court asked how the defense intended to prove the report was false, to which counsel replied that testimony from the victim that there had never been any conviction would be sufficient to impeach her. The prosecutor represented that the discovery related to the 2014 report (again, not in the record) was even more lengthy than in the present case, "[a]nd not once i[n] any of that [is the] report shown to be false or dishonest." In order to rebut adverse inferences from the lack of any convictions, the prosecutor would need to litigate the circumstances. The trial court ruled, that it did "not believe simply because charges were not brought, or [a] conviction was not obtained, that that means [the report] was false. Even if there was an acquittal, it doesn't mean her statement was false. It just means that a jury didn't find it was sufficient evidence. But if you ha[ve] evidence of falsity, I quite frankly would reconsider." Defense counsel asserted that her investigator would continue to look into the matter. Nonetheless, the defense did not submit any such evidence in support of its renewed opposition to exclusion in the subsequent trial.
Defendant seems to presuppose that the 2014 report is patently false on its face, such that to argue otherwise is "extraordinary" and "a triumph of formality over common sense." Nowhere in his argument is there any authority that a trial court is obliged in ruling on the admission of evidence to accept defense representations of the facts it expects to adduce without giving leave to the prosecution to litigate these further. This means the prosecution properly asserted that even if the defense did not want to dive into the underlying circumstances beyond the apparent absence of any convictions, it would be necessary to establish the totality of the underlying facts in order for the jury to assess intelligently whether in fact the report was false (otherwise, it would be irrelevant) before it chose to draw an adverse inference. In the present case, that would lead to a whole parade of witnesses. We thus do not find any abuse of discretion on the part of the trial court in deciding to exclude this evidence as irrelevant in the absence of proof that the 2014 report was in fact false. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) Further support for its ruling is the fact that little of the victim's testimony involved facts that could not otherwise be corroborated, and therefore the whole question of purported bias did not have material relevance.
Given the fact specific nature of rulings on the admission of evidence, citations of rulings in other cases is not informative. (Cf. DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 463 [claim of insufficient evidence].)
4.0 Exclusion of Evidence of Bias of Defendant's Ex-girlfriend Was Not an Abuse of Discretion
After the ex-girlfriend had testified, defense counsel sought to call defendant's sister to testify about the ex-girlfriend's supposed bias against defendant. The prosecution moved to exclude such evidence as irrelevant (while agreeing other proposed testimony was proper). The focus of the proposed testimony was a conversation between the sister and the ex-girlfriend in which the latter's "whole attitude changed" after hearing that defendant would want to spend time with their daughter if he were acquitted, saying she would not let anyone take this child away after losing custody of another. The prosecutor asserted this was hearsay, which was proper only in the cross-examination of the ex-girlfriend. The trial court agreed.
Defendant challenges the merits of this ruling. However, beyond a conclusory assertion of prejudice, he fails to show how exclusion of this testimony would have any material effect, and completely ignores the subject of prejudice in his reply brief.
We do not need to resolve whether the trial court abused its discretion. There was ample other evidence at trial of factors that would lead to inferences that the ex-girlfriend was telling the truth (she was appearing despite fear of retribution, she had recently expressed her continuing love for defendant and concern for his welfare, he had warned her that getting involved would subject her to prosecution) and that she had animus against defendant (his alleged past physical abuse, other testimony that his continued incarceration would work in her favor in her custody proceedings, her jealousy about his infidelities). The exclusion of this particular bit of testimony therefore could not possibly be materially prejudicial.
5.0 Cumulative Error is Not Present in the Record
We have not identified any error in three of the four claims we have evaluated thus far, and did not find the fourth to be prejudicial on assumed error. Defendant's assertion of cumulative prejudice accordingly fails. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.)
6.0 Denial of the Continuance to Obtain New Counsel for a Motion for New Trial Was Not an Abuse of Discretion
The same attorney represented defendant at both trials. The jury returned its verdict on February 21, 2018. Before the scheduled sentencing date, trial counsel moved on March 2 to continue the hearing to allow additional time to prepare mitigation evidence. At the hearing on the motion, the prosecutor did not object to a two-week continuance to March 28, and trial counsel filed a statement of mitigation before that hearing date.
On the day before the hearing, trial counsel moved for another continuance to allow defendant to file a motion for new trial and perhaps retain new counsel to prepare it. In her supporting declaration, trial counsel noted that she had advised defendant she would not be able to file the motion herself (for undisclosed reasons).
At the scheduled hearing on March 28, trial counsel told the court that defendant's family was consulting with other attorneys for advice on the motion for new trial and engaging their services toward that end. Trial counsel assured the court that this process was "moving along" and was not asserted for delay. The prosecutor objected, given the amount of time that had elapsed already since the verdict to take these steps. Because it considered this matter to be a serious case, the court granted a further continuance to May 9.
The proposed attorney appeared at the continued hearing on May 9, and told the court that defendant's family wanted to retain him after contacting him the previous Thursday (defendant clarifying that the funds were presently available to retain proposed counsel if the court permitted substitution). The court asked proposed counsel to review a case during a recess that the court provided to him. The prosecutor objected to a continuance, pointing out that there was a lengthy record of two trials for any proposed counsel to review and a large volume of discovery and exhibits. Defendant's trial counsel noted that defendant wanted to assert in part her own ineffectiveness, for which reason she could not prepare the motion herself (as she did not believe she had performed ineffectively).
Defendant then personally asserted his right to present an oral motion for new trial, discussing his various proposed grounds. While the prosecutor had admitted that she did not intend to call any witnesses at the sentencing hearing, the trial court denied the motion for a continuance, premised on the authority it had previously provided to counsel and "weigh[ing] and balanc[ing] everything," in light of the previous grant of a continuance and the fact that proposed counsel had not been contacted until the prior week. Defendant explained that his family had actually retained another attorney, who did not tell them until the prior week that he would not appear without "transcripts and things." This did not persuade the trial court to change its ruling on the continuance request, and it proceeded to sentence defendant.
Defendant does not suggest on appeal that he was entitled to present his own motion for new trial while represented by counsel.
The case would not appear to be pertinent, involving a motion on the day set for trial for a continuance to retain new counsel, where the defendant had not yet taken any steps toward the end of substitution. (People v. Keshishian (2008) 162 Cal.App.4th 425, 429.)
It is not at issue that a defendant has the right to discharge retained counsel at any time and substitute new counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 152.) This right is nonetheless subject to a trial court's discretion to insure the expeditious and orderly administration of justice. (Id. at p. 153; People v. Maciel (2013) 57 Cal.4th 482, 512.) This discretion includes whether to allow a continuance to exercise the right to replace retained counsel. (People v. Courts (1985) 37 Cal.3d 784, 790-791.) It is a defendant's burden to establish an abuse of discretion in denying the request for a continuance. (People v. Brady (1969) 275 Cal.App.2d 984, 992.)
Over a month had elapsed before defendant even asserted through trial counsel an intention to move for new trial on the day before the continued sentencing hearing, without indicating that trial counsel had any role in the delay for this request, or detailing any steps he and his family had taken toward retaining substitute counsel. Defendant thereafter had another six weeks—after the trial court cautioned him that this would be the last continuance—to complete the process of replacing retained counsel. Defendant never detailed any diligence toward initiating the process of preparing the necessary record during this entire 10-week period, or explained when his prior proposed attorney agreed to represent him, or why there was not a motion at that point to substitute the prior proposed attorney and request transcripts.
The trial court was therefore confronted with what in essence would be an open-ended continuance to prepare the lengthy transcripts without any estimate of how much additional time proposed counsel might take to review these for error (along with the exhibits and discovery). This is in contrast with People v. Munoz (2006) 138 Cal.App.4th 860 (Munoz), which found an abuse of discretion in denying a postconviction request to substitute retained counsel with appointed counsel for a new trial motion. (Id. at pp. 864-865.) Munoz emphasized the abbreviated nature of the trial record (a two-day trial with the testimony of the primary witness already transcribed), the absence of any showing that substitute counsel could not review the matter expeditiously, and the fact that the trial court simultaneously granted a continuance of five weeks for purposes of obtaining evidence in mitigation. (Id. at pp. 868, 870.) Munoz noted that ordinarily substantial delay would militate in favor of denial, because most trial records could not be as easily reviewed (id. at p. 868), but the trial court could not simply presume substantial delay given the state of the trial record (id. at pp. 869-870).
It eventually took just shy of four months to prepare the record on appeal, and an additional month to prepare requested augmentation.
We accordingly conclude the trial court did not abuse its discretion in denying the continuance for replacement counsel to evaluate a motion for new trial in light of the apparent substantial impact on the orderly administration of justice. To the extent this may have prevented defendant from developing matters for the motion for new trial that are outside the record, he may always pursue habeas relief in this regard.
7.0 The Conviction for Burglary and Accompanying Enhancement Must be Stayed
7.1 Burglary Conviction
The information charged defendant with both kidnapping and burglary for the purpose of theft or other felony. The trial court accordingly instructed the jury that proof of burglary included the element of an intent to commit theft or kidnapping. In closing argument, the prosecutor asserted that the accomplice entered the home with the intent of kidnapping the victim for the purpose of using her as a pawn to obtain marijuana from the grower without paying for it (also adverting to the theft of cash from the victim's wallet). Although the jury's verdict does not specify the felony underlying its guilty verdict for the burglary conviction, neither party suggests that we need to entertain the possibility that it rests on theft rather than the essentially undisputed evidence of kidnapping, and we limit our analysis accordingly.
In general, when a jury convicts a defendant both of burglary and the underlying felony, "section 654 prohibits punishment for both crimes," and requires us to stay the sentence on one of the counts. (People v. Islas (2012) 210 Cal.App.4th 116, 130.) As the kidnapping count carries the more severe punishment, we will amend the judgment to stay the sentence on the burglary conviction.
7.2 Principal-armed-with-gun Enhancement
There is also the matter of the sentencing enhancement pursuant to Penal Code section 12022, subdivision (d) that was imposed on the burglary conviction. "[F]ailure to stay an enhancement, where the base term to which it is added is stayed, and requiring that time be served only for the enhancement has the effect of elevating the enhancement to the status of an offense. Enhancements are not offenses, they are punishments." (People v. Guilford (1984) 151 Cal.App.3d 406, 412; accord, People v. Smith (1985) 163 Cal.App.3d 908, 914 ["[O]ne cannot be punished for the enhancement separately from the underlying offense."]; People v. Bracamonte (2003) 106 Cal.App.4th 704, 709 ["Where the base term of a sentence is stayed under section 654, the attendant enhancements must also be stayed."], disapproved on another ground in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.) Accordingly, the sentence on the principal-armed-with-a-gun enhancement related to the burglary count must be stayed pursuant to section 654.
7.3 Remand for Resentencing is Necessary
We must remand to the trial court for resentencing. Here, the trial court imposed a one-year four-month sentence (one-third the midterm) for the burglary conviction and one year (one-third the upper term) on the enhancement. For a stayed sentence, the court must impose a full-term sentence and then stay execution thereof. (See People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 530; People v. Relkin (2016) 6 Cal.App.5th 1188, 1197; People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164; People v. Salazar (1987) 194 Cal.App.3d 634, 640.)
DISPOSITION
The judgment is modified to stay execution of sentence on the burglary conviction and the accompanying section 12022, subdivision (d) enhancement pursuant to section 654. The matter is remanded for the trial court to select and impose a full-term sentence on count 2, burglary in the first degree, and the accompanying enhancement, and stay execution of the sentence on that count and enhancement pursuant to section 654. As modified, the judgment is affirmed. Upon resentencing, the trial court shall prepare an amended abstract of judgment reflecting the new sentence and forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
BUTZ, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
ROBIE, J.