Opinion
G044674
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. JAIME ANTONIO CARPIO, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Donald W. Ostertag, and Scott Taylor, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CF2081)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Donald W. Ostertag, and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jaime Antonio Carpio robbed an employee of a catering truck while armed with a loaded shotgun. Nine days later he burglarized a JK Food Store. A jury convicted him of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and one count of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)). The trial court sentenced him to 18 years in prison.
Defendant contends the court's failure to ask him any questions about his requests to substitute his court-appointed attorney for a privately-retained one requires reversal. We find no error and affirm.
DISCUSSION
In late September 2010, defendant moved for new counsel under People v. Marsden (1970) 2 Cal.3d 118. Following a hearing, the court denied the motion.
Three weeks later, on the morning of the day set for trial, public defender Christine McDonald "addressed the court informally in chambers" about continuing the trial for "two to three weeks" to allow defendant "to consult a private attorney." That afternoon, with defendant present and after the jury had been selected, sworn, and pre-instructed, she placed the matter on the record. She "recognize[ed] that it's late in the process because we already had the jurors coming into the courtroom, [but she] did want the court to be aware that this is [defendant's] request in order to consult a private attorney . . . to represent him on these charges." The court responded, "I reviewed the file and noted that Ms. McDonald was back on the case in August of 2009. And the case was basically in [the] lower court, I should say pre-prelim until May 4th of 2010. And you know it went to Superior Court . . . May 18th of 2010. So the case has been in the Superior Court for some number of months. [¶] Based upon the readiness of counsel and [the] ordinary process of the court, I had indicated to Ms. McDonald I would not find good cause to continue the case."
Four days later, before opening statements, Ms. McDonald informed the court defendant was "again requesting that the court continue this case for two to three weeks. He says that his family has retained a private attorney for him. He is refusing to continue the trial with me because he has a private lawyer to represent him, and he is just asking for two to three weeks for that lawyer to be able to represent him." The court denied the request stating, "There is no private lawyer here. We have a jury selected and that would interfere with the orderly process of this court . . . ."
Defendant argues the court committed reversible error by not addressing him personally or asking him "a single question regarding his request to retain counsel." He asserts that under People v. Hernandez (2006) 139 Cal.App.4th 101, 108-109 and People v. Munoz (2006) 138 Cal.App.4th 860, 870, "the trial court has a duty to inquire as to the scope and impact of any delay on the proceedings." (Underscoring omitted.) But both cases involved the right of a defendant to discharge retained counsel, not court-appointed counsel, which is governed by People v. Marsden, supra, 2 Cal.3d at p. 123. Hernandez and Munoz are thus inapposite and defendant's failure to cite any authority applicable to appointed counsel forfeits the issue. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
The cases are further distinguishable in that neither involved a request for a continuance to retain new counsel. In Munoz, the defendant sought to have counsel appointed in place of retained counsel well in advance of the scheduled sentencing hearing, which did not take place until over a month after the court denied the motion. Munoz held that was an abuse of discretion because there was no indication in the record that granting the request would have resulted in disruption, given that the sentencing hearing had already been delayed for five weeks. (People v. Munoz, supra, 138 Cal.App.4th at pp. 869-870.)
Hernandez similarly involved a request for appointed counsel in place of retained counsel. Although the request was late, made just before jury selection, Hernandez reversed because the trial court had applied the wrong standard for replacing retained counsel and had failed to inquire into whether the public defender "would be able and willing to defend the case without a material postponement of the trial date, a circumstance that may have justified denial of the request." (People v. Hernandez, supra, 139 Cal.App.4th at p. 109.) Here, in contrast to both, it was unnecessary for the court to inquire about potential delay because disruption was certain in light of defendant's request for a continuance of several weeks.
Defendant maintains his unsuccessful Marden motion and his "refus[al]" to continue with appointed counsel because a private lawyer had been "retained" "demonstrated [his] discontent with his counsel prior to trial" and required the court to "undertake[] a personal inquiry of him. But because the record contains no indication he was making a second Marsden motion, the court had no duty to conduct an inquiry about the reasons for his dissatisfaction with counsel. (See People v. Molina (1977) 74 Cal.App.3d 544, 549 ["duty of trial court inquiry into the reasons why a defendant seeks to discharge counsel applies only when the defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel"].)
Where, as here, a defendant seeks a continuance to substitute retained counsel at the time of trial, courts have "found the lateness of the continuance request to be a significant factor which justified a denial where there were no compelling circumstances to the contrary. [Citation.]" (People v. Courts (1985) 37 Cal.3d 784, 792, fn. 4.) Defendant presented no such reasons. Despite making his unsuccessful Marsden motion three weeks earlier, defendant had not yet contacted an attorney at the time of his first request for a continuance and sought time to allow him to "consult" one. The court did not abuse its discretion in denying that request. (See People v. Pigage (2003) 112 Cal.App.4th 1359, 1367 [affirming denial of continuance to replace alternate defender with private counsel where the defendant waited until eve of trial to voice unhappiness and record contained "no evidence [he] attempted to retain counsel, or had even taken steps to secure funds to hire private counsel, although his problems with appointed counsel apparently began [two weeks earlier].")
Nor was there an abuse of discretion in denying the second continuance request, as trial had already started. (People v. Turner (1992) 7 Cal.App.4th 913, 919, fns. omitted [affirming denial of continuance where "defendant sought to replace his attorney on the day of trial[,] . . . [which] meant that the request could not be granted without causing a significant disruption, i.e., a continuance with the attendant further inconvenience to witnesses and other participants"].) Defendant has not shown the court abused its discretion in denying his continuance requests to seek and retain private counsel.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR:
ARONSON, J.
IKOLA, J.