Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Imperial County, No. JCF20885, Matias R. Contreras, Judge. (Retired judge of the Imperial Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)
HUFFMAN, J.
A jury convicted Alden Devers Cachora of 10 separate counts of sexual crimes against five different minor children. Cachora appeals, contending the court erred by denying his motion for a continuance of his trial. He asserts that the error violated his right to a fair trial and the effective assistance of counsel. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Cachora's unsuccessful request for a continuance came after the court granted two previous continuances sought by the public defender. The trial was originally set for February 13, 2008 and assigned to Eric Baker, an attorney in the public defender's office. The trial was continued to the end of April to provide Baker more time to prepare. Baker terminated his employment with the public defender's office on April 7, 2008 and the case was reassigned to another public defender, Jim Johnson. As newly appointed counsel, Johnson stated that he would need more time to prepare for trial. The People urged the court to schedule the trial in July, before the beginning of the school year, to accommodate the five minor victim/witnesses. Despite numerous disagreements as to the new trial date, the case was continued to September 9, 2008, when Johnson assured the court he would be diligently prepared for trial. At the pretrial hearing on July 14, 2008, the People learned that Mr. Johnson was no longer employed by the public defender's office and the proceedings were continued to July 18, 2008, when Deputy Public Defender Benjamin Salorio stated he was newly appointed counsel and requested a continuance of the September 9 trial. In his declaration, Salorio noted he was not assigned to this case until July 14, 2008.
Salorio said he would not be ready to proceed to trial until November 10, 2008 because he had not reviewed the discovery or interviewed the multiple child victims. Additionally, his office did not have copies of the video tapes depicting sexual contact between Cachora and several of the victims. Salorio also stated that he had another trial in a complex case scheduled for the same trial date. He argued that Cachora's right to effective assistance of counsel under the federal and California Constitutions would be violated if he were denied additional time to prepare for trial.
The People opposed any continuance because the defense would have 58 days to prepare for trial and Salorio failed to show good cause under Penal Code section 1050. The public defender's office had represented Cachora since the case was filed in October 2007 and trial dates had been continued numerous times in order to accommodate defense counsel. Salorio failed to show what reasonable efforts or due diligence had been made by the public defender's office to prepare the case for trial, and he did not articulate specifically why he needed the additional time to prepare for trial. The People also relied on Penal Code section 1048, subdivision (b)(3), which mandates that child molestation cases be given priority over other criminal cases.
The court denied the motion, finding that Salorio failed to specifically articulate good cause for the continuance and there was no showing of reasonable efforts or due diligence as to trial preparation by the public defender's office in the previous six months. The court further found Salorio did not articulate specifically why he needed extra time to prepare Cachora's defense. The court noted that Cachora was entitled to renew a motion to continue trial at some appropriate point if he deemed it necessary.
Cachora never renewed a request to continue the trial. More than 50 days after the motion for continuance was denied, Salorio indicated he was ready to proceed with trial. The jury convicted Cachora on all counts and made true findings on all charged allegations. The court sentenced Cachora to prison for an indeterminate term of 75 years to life plus four years.
DISCUSSION
Cachora contends the trial court abused its discretion and violated his rights to fair trial and the effective assistance of counsel when it denied his motion for a continuance.
The decision whether to grant a continuance of trial rests within the sound discretion of the trial court. (People v. Beames (2007) 40 Cal.4th 907, 920.) The court's decision to deny a continuance will not be disturbed on appeal in the absence of a clear abuse of discretion. Discretion is abused only when the court exceeds all bounds of reason, based on all the circumstances of the case. (Ibid.) On appeal, we consider the circumstances of each case and the reasons presented for the request to continue trial to determine whether the court's denial of a continuance was so arbitrary as to deny the defendant due process. (People v. Doolin (2009) 45 Cal.4th 390, 450-451.) The appellant has the burden of establishing an abuse of discretion. (Beames, supra, at p. 920.)
Penal Code section 1050 permits continuances of trial only upon a showing of good cause. (Pen. Code, § 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The court must balance the " ' "benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (Ibid.) A defendant must diligently prepare for trial and is not entitled to a continuance if he or she is unjustifiably dilatory. (People v. Strozier (1993) 20 Cal.App.4th 55, 61.)
There is ample support in the record for the trial court's decision to deny the requested continuance. The public defender's office had more than six months to prepare for trial. Although Salorio was newly appointed as trial counsel for Cachora, he had 58 days to prepare for trial. The trial court was "mindful of the staffing issues in the Public Defender's Office," but it also had to consider the burden on and prejudice to the People to subpoena victims and witnesses and the impact of continuing trial on their personal and professional schedules. Although Salorio indicated that he had another trial scheduled for the same time period, the legislature has mandated that child molestation cases be given priority over other criminal matters. (Pen. Code, § 1048, subd. (b)(3).)
Despite the denial of a continuance, Salorio declared he was ready to proceed with trial at the readiness conference on September 1, 2008. Ultimately, the continuance was unnecessary for Salorio to be ready for trial because Cachora never renewed the motion for continuance. Because counsel was ready to proceed with trial at the scheduled time, there was no prejudice to Cachora by the denial of the continuance. Therefore, it is not reasonably probable that the outcome of trial would have been more favorable to Cachora had the continuance been granted.
We conclude that the trial court's finding of no good cause and denial of Cachora's motion for continuance was neither an abuse of discretion nor a violation of Cachora's constitutional rights. Because defense counsel was ready to proceed on the date set for trial, Cachora cannot show he was prejudiced by the court's denial of his continuance.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.