Opinion
F084311
06-28-2023
THE PEOPLE, Plaintiff and Respondent, v. CONRAD CASTILLO, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 20CR-04459. Steven K. Slocum, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Appellant Conrad Castillo was convicted by jury of two counts of committing a lewd act upon A.E., a child under the age of 14 (Pen. Code, § 288, subd. (a), counts 1 &2), committing a lewd act upon B.E., a child 10 years old or younger (§ 288, subd. (a), count 5), and two counts of committing oral copulation or sexual penetration upon B.E. (§ 288.7, subd. (b), counts 3 &4). In addition, the jury found true allegations that the charged offenses were committed against multiple victims (§ 667.61, subds. (b) &(e)), both of whom were under the age of 14 at the time of the offenses (§ 667.61, subds. (j)(2) &(e)).
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
On appeal, Castillo claims that the trial court erred by denying his motion to discharge his retained counsel and to continue his sentencing hearing so that he could secure a new attorney. According to Castillo, the trial court applied the wrong legal standard in considering his motion. Castillo further contends the trial court abused its discretion by finding that his motion was untimely in that it would be disruptive of the orderly process ofjustice. We affirm.
PROCEDURAL HISTORY
Castillo was originally charged by criminal complaint on July 24, 2020. He retained trial counsel, Scott Furstman, in September 2020.
On March 5, 2021, the Merced County District Attorney's Office filed an information charging Castillo with two counts of committing a lewd act upon A.E., a child under the age of 14 (§ 288, subd. (a), counts 1 &2), committing a lewd act upon B.E., a child 10 years old or younger (§ 288, subd. (a), count 5), and two counts of committing oral copulation or sexual penetration with B.E. (§ 288.7, subd. (b), counts 3 &4). The information further alleged as to counts 1, 2, and 5, that there were multiple victims pursuant to section 667.61, subdivisions (b) and (e), that the victims were under the age of 14 at the time of the charged offenses within the meaning of section 667.61, subdivisions (j)(2) and (e).
On December 7, 2021, the parties gave their opening statements at Castillo's jury trial.
On December 9, 2021, an hour and a half after the jury began deliberating, it found Castillo guilty as charged.
On March 15, 2022, following two prior continuances, the trial court sentenced Castillo to an aggregate prison term of 70 years to life. The sentence consisted of a term of 25 years to life on count 2, a matching concurrent term on count 1, and consecutive terms of 15 years to life each on the remaining three counts.
The court granted trial counsel's motion pursuant to section 1118.1 "nunc pro tunc" to dismiss a section 667.61, subdivision (j) enhancement attached to count 5, rendering the applicable sentence 15 years to life versus 25 years to life. The abuse alleged in count 5 occurred sometime between October 20, 2007, and October 19, 2013. The jury did not make a finding as to the specific date of the incident. Under section 667.61, subdivision (j)(2), a defendant convicted of a specified offense against a child under the age of 14, where there is more than one victim, is subject to a mandatory prison term of 25 years to life. However, according to the trial court, this penalty did not exist until 2010.
Castillo filed a timely notice of appeal.
STATEMENT OF FACTS
Although the seriousness of Castillo's crimes cannot be overstated, we do not recite the facts underlying his convictions as they are not pertinent to the issues he raises on appeal. Castillo's convictions are based upon multiple acts of sexual abuse perpetrated against two victims, to whom he was related. Both of the victims, A.E. and B.E., were under the age of 14 at the time of the offenses.
Castillo's Motion to Discharge His Retained Attorney
On January 13, 2022, over a month after his trial ended, Castillo was scheduled to be sentenced. Trial counsel and the prosecutor appeared for the hearing remotely by Zoom video. Trial counsel waived Castillo's appearance. The hearing was postponed following a request for a continuance by trial counsel.
On February 15, 2022, Castillo personally appeared for his sentencing hearing. Trial counsel appeared via Zoom video. The court granted another request by trial counsel to continue the hearing.
On March 15, 2022, the day scheduled for sentencing, Castillo sought to discharge his retained attorney and to continue his hearing so that he could secure a new attorney. Trial counsel represented that Castillo and his family were making arrangements for the retention of new counsel.
The trial court asked whether there was any legal cause as to why judgment should not be pronounced. Trial counsel asserted that considering Castillo's maximum prison exposure and given the difficulty counsel had communicating with Castillo, there was good cause to continue the sentencing hearing. He added that Castillo was entitled to have a new attorney determine whether there were any postconviction matters that should be addressed. The trial court expressed doubt that good cause supported Castillo's implied request for a continuance.
Trial counsel proposed that Castillo discuss his concerns with the court directly, but represented that the problem was the communication between he and Castillo. He asserted that Castillo should have "ample opportunity . . . to understand the ramifications and the consequences of the sentencing proceeding. And that simply has not been done."
The trial court acknowledged that trial counsel had been experiencing health issues which impaired counsel's ability to meet with Castillo, but inquired whether counsel had the ability to communicate with Castillo by telephone. Counsel responded, that since the trial, he had "not heard from Mr. Castillo via telephone." According to trial counsel, he had communicated with Castillo in person numerous times throughout Castillo's trial, but he saw Castillo only once since the trial. He had not seen or spoken to Castillo since the day after the jury returned its verdict. Trial counsel's medical issues had made it difficult for him to travel, and their communications had always been in person.
The court invited Castillo to express his concerns. Castillo stated that he had received "insufficient counsel," and that he wanted "new counsel for sentencing." He asserted that trial counsel was "no longer [his] attorney," and that he had made that clear to counsel on the day prior to the sentencing hearing. Castillo further claimed that his family had also sent trial counsel an email, but the content of the email and the date it was dispatched are unknown from the record.
The prosecutor opposed Castillo's oral motion, stating it was untimely. She observed that Castillo had been sentenced in December 2021, and that sentencing had been continued in January, and again, in February. The prosecutor added that if there were any issues with trial counsel's representation, those issues could be raised on appeal.
The trial court initiated an in-camera proceeding so that it could further explore Castillo's request. The court explained that the hearing would basically be "a Marsden motion." The court acknowledged that trial counsel had not been appointed, but it believed Castillo had the right to have a hearing since he was requesting new counsel postconviction.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
During the in-camera hearing, Castillo repeated that he "did not have sufficient counsel," but that he wanted to speak to another attorney before he would elaborate. He stated, "it's been very difficult communicating with [trial counsel]," and added that his trial had been rushed and "wasn't anything like what [he had] expected." Castillo concluded, "that's it. Just the insufficient counsel."
Trial counsel joined Castillo's request. He explained that if Castillo subjectively felt like there had not been adequate communication to prepare him for trial and sentencing, that should be dispositive of the issue. Trial counsel stated that there would be no harm in allowing Castillo to communicate with another attorney of his choosing, particularly in light of the substantial sentence Castillo was facing.
The trial court concluded that Castillo had not set forth sufficient grounds for ineffective assistance of counsel. The court observed that Castillo's complaint of insufficient counsel was "very generic" and was probably shared by defendants who had also been found guilty. With respect to Castillo's concern about the trial being "rushed," the court stated that the trial dates had been continued and that throughout the trial, counsel had been prepared. And, as to Castillo's concern pertaining to trial not being what he had expected, the court surmised, "that may be the case for any individual."
The trial court asked counsel whether there were any grounds for a motion for new trial. According to trial counsel, there were no issues that would support a motion for new trial, except for the speed in which the jury returned a guilty verdict against Castillo.
When asked by the trial court whether there was anything he wanted to add, Castillo vaguely replied, "there's a lot of different reasons and things . . . but, no, at this point, that's it." The trial court denied Castillo's motion, finding a lack of "good cause."
Castillo interjected, "I do not have an attorney right now." The court replied, "to come to court on the day of sentencing and declare that you're retained attorney is no longer your attorney, that's not a decision you can make." Castillo explained, "We've been trying to contact [trial counsel]. It's been like pulling teeth. Every time we were going to have court, he would come to see me the day before the court when for a whole month we've been ... making phone call[] after phone call[] trying to get in contact with him. . . . I never felt that I had a chance to convey to him what needed to be done in the court."
Castillo repeated that he had "insufficient counsel." He added that trial counsel did not use character witnesses that Castillo felt should have been used and things were not brought up during trial that he had wanted brought up. Castillo stated that he wanted a different attorney for sentencing.
Trial counsel explained that he had visited Castillo on "numerous occasions," but admitted he had only one phone call with Castillo, and that call "wasn't even this month." With respect to Castillo's complaints about counsel's performance during trial, trial counsel explained that decisions had to be made about providing Castillo with a plausible defense, and that often times, those decisions would not make the defendant happy. However, counsel had interviewed witnesses and for strategic reasons, he had declined to call those witnesses to testify. Counsel had also vigorously cross-examined the victims. The case was difficult given the pretextual phone calls and evidence of flight by Castillo, but those issues had been handled during motions in limine. The trial court found that Castillo had failed to make a colorable claim of ineffective assistance of counsel.
When the parties reconvened following the in-camera hearing, the trial court concluded that Castillo's motion was untimely. The court explained, "it would result in the disruption of the orderly process ofjustice in that the victims also have the right to have resolution in the case. They've been waiting now for some time since the date of the verdict. And for all the other reasons I stated on the record, the request to retain a new attorney was denied."
The Sentence
Neither of the parties filed sentencing briefs in advance of the hearing. Nor did Castillo address the court concerning any factors which could potentially mitigate his sentence. The victims also declined to give statements at sentencing.
The probation officer's report identified several potential mitigating factors, including: the fact that Castillo had never denied the allegations during the investigation, he had expressed remorse for his actions, and he had no prior criminal history.
Conversely, Castillo had taken advantage of a position of trust to continuously sexually abuse two young children. And, although not cited as a factor in aggravation of Castillo's sentence, the report observed that the victims had experienced anxiety, depression, and nightmares since the incidents. One of the victims stated that Castillo needed to face the consequences of his actions.
The probation officer's report did not recommend imposition of any particular prison term, but observed that Castillo was statutorily ineligible for a grant of probation. The report noted that the prison term for a violation of section 288.7, subdivision (b), for which Castillo was convicted of two counts, carried a prison sentence of 15 years to life.
At the sentencing hearing, trial counsel acknowledged the court had limited sentencing discretion because of application of the one strike law sentencing scheme (see § 667.61). Trial counsel asked the court to impose all counts concurrently as opposed to consecutively.
Castillo was sentenced as follows: on count 2, the trial court imposed a prison term of 25 years to life. The court imposed the same term on count 1, which was imposed concurrent to count 2. With respect to counts 3 through 5, which applied to B.E., the court imposed a term of 15 years to life on each count, to run consecutive to all other counts. The total prison sentence imposed was an aggregate term of 70 years to life.
Subdivision (i) of 667.61 provides: "For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6." (Emphasis added.) Count 3 and 4 involved convictions for oral copulation in violation of section 288.7, subdivision (b), which is not one of the offenses specified in section 667.67 that mandates imposition of full consecutive sentences. (See generally, People v. Booth (2018) 25 Cal.App.5th 450 [trial court had discretion to run sentences for violations of section 288.7 concurrently].)
The court explained that it was imposing concurrent terms on counts 1 and 2 in consideration of the fact that Castillo had no prior criminal record. The court further found that this sentence would be proportional to the conduct associated with those counts. Specifically, that the harm to B.E., as charged in counts 3 and 5, was comparatively more serious and warranted a more severe sentence, than the acts charged in counts 1 and 2.
As to counts 3 through 5, the trial court acknowledged that while it had discretion to impose concurrent terms, it was imposing consecutive terms. The court explained that the crimes had occurred over the course of several years, they involved a high degree of cruelty or callousness, Castillo had taken advantage of a position of trust to commit these offenses, and he lacked insight into the trauma he had inflicted upon the victims. Castillo's lack of insight into the harm his actions caused increased the risk of danger he posed to the community if he were ever to be released.
ANALYSIS
I. The Trial Court Applied the Correct Legal Standard in Denying Castillo's Motion to Discharge His Retained Counsel
Castillo contends that the trial court erroneously required him to demonstrate that he had received constitutionally inadequate counsel before it would permit him to discharge his retained attorney. Although the record contains some ambiguity, we conclude that the trial court ultimately applied the correct legal standard in denying Castillo's motion.
It is well-settled that a criminal defendant has the right to timely request substitution of appointed counsel based upon a showing of inadequate representation or an irreconcilable conflict. (Marsden, supra, 2 Cal.3d at pp. 123-125.) However, the question of competence of counsel is not a factor in resolving a defendant's request to discharge retained counsel. "In contrast to situations involving appointed counsel, a defendant may discharge his retained counsel of choice at any time with or without cause." (People v. Lara (2001) 86 Cal.App.4th 139, 152, citing People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz); People v. Verdugo (2010) 50 Cal.4th 263, 310-311.) The right to discharge a retained attorney with or without cause also applies after conviction. (People v. Munoz (2006) 138 Cal.App.4th 860, 869 (Munoz).)
However, a defendant's right to discharge their retained counsel is not absolute. As our Supreme Court explained in Ortiz, supra, 51 Cal.3d 975: "The trial court, in its discretion, may deny such a motion if discharge will result in 'significant prejudice' to the defendant [citation], or if it is not timely, i.e., if it will result in 'disruption of the orderly processes ofjustice' [citations]." (Id. at p. 983.) 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]." (U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 152.)
Here, relying upon People v. Bolin (1998) 18 Cal.4th 297 (Bolin), the trial court held an in-camera hearing following Castillo's claims of insufficient counsel. Acknowledging that trial counsel had not been appointed to represent Castillo, the court reasoned Castillo was nonetheless entitled to such a hearing because he was requesting new counsel postconviction.
In Bolin, the court applied Marsden to a defendant's request to relieve his appointed counsel and to have another attorney appointed for purposes of pursuing a motion for new trial based upon the incompetence of trial counsel. (See Bolin, supra, 18 Cal.4th at pp. 346-347; Ortiz, supra, 51 Cal.3d at p. 984 [aMarsden motion seeks to have appointed counsel relieved and replaced with new appointed counsel due to inadequate representation or an irreconcilable conflict].) Marsden does not apply where the defendant's attorney is retained, and consequently, neither does Bolin.
"Because the right to discharge retained counsel is broader than the right to discharge appointed counsel, a Marsden-type hearing at which the court determines whether counsel is providing adequate representation or is tangled in irreconcilable differences with the defendant is' "[an] inappropriate vehicle in which to consider [the defendant's] complaints against his retained counsel." '" (People v. Keshishian (2008) 162 Cal.App.4th 425, 429.) When a defendant seeks to relieve his retained attorney to have new counsel appointed to represent him in the filing of a new trial motion and to represent him at sentencing, the motion is more aptly referred to as a Munoz motion. (See Munoz, supra, 138 Cal.App.4th 860.) In considering the defendant's request, the court" 'balance[s] the defendant's interest in new counsel against the disruption, if any, flowing from the substitution.'" (People v. Keshishian, at p. 429.)
It is unclear to what extent the trial court considered Castillo's complaints pertaining to his retained attorney in denying his oral motion. On one hand, the trial court began the in-camera hearing with the following comments: "Mr. Castillo . . . you're free to state whatever grounds you believe are present for the Court to allow you to retain new counsel to represent you." And, at the conclusion of the hearing, the court denied Castillo's motion, finding that it was unsupported by "good cause." Although Castillo needed good cause to support his request for a continuance, he did not need good cause to discharge his retained attorney. (See Ortiz, supra, 51 Cal.3d at p. 983.)
On the other hand, the trial court also denied Castillo's motion under Ortiz. Following the conclusion of the in-camera hearing, the trial found that Castillo's motion was "untimely, and it would result in the disruption of the orderly process ofjustice." This was the correct legal standard. (See Ortiz, supra, 51 Cal.3d at pp. 982-987 [a "defendant's right to discharge his retained counsel ... is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in 'significant prejudice' to the defendant [citation], or if it is not timely, i.e., if it will result in 'disruption of the orderly processes ofjustice' "].)
On balance, although the record supports the conclusion that Castillo's concerns about trial counsel's representation did factor into the trial court's decision to deny Castillo's motion, we are unable to conclude that this constitutes a basis for reversible error. Although Castillo did not need good cause to dismiss his attorney, he did need good cause for a continuance to seek new counsel. By concluding that Castillo had failed to show "good cause," the court was referring to Castillo's implied request for a continuance.
Further, it is not reversible error for the trial court to consider a defendant's complaints about his retained attorney's inadequate representation in a Marsden-type hearing. As our Supreme Court has explained, "while 'a defendant seeking to discharge his retained attorney is not required to demonstrate inadequate representation or an irreconcilable conflict, this does not mean that the trial court cannot properly consider the absence of such circumstances in deciding whether discharging counsel would result in disruption of the orderly processes ofjustice.'" (People v. O Malley (2016) 62 Cal.4th 944, 1006; see also People v. Maciel (2013) 57 Cal.4th 482, 513-514.) Insofar as a defendant can show inadequate representation or an irreconcilable conflict, that would weigh strongly in favor of granting a request to replace counsel, despite the disruption that such a request would entail.
Here, the record supports the conclusion that the trial court conducted a Marsden -type hearing to give Castillo the opportunity to support his untimely request to seek a new attorney, despite the disruption that his last-minute request would inevitably cause. The record does not show that the trial court applied an incorrect standard in denying Castillo's motion. We reject his claim to the contrary.
II. The Trial Court Did Not Abuse its Discretion in Denying Castillo's Motion
Castillo further contends that the trial court abused its discretion in denying his motion to relieve his retained attorney. Although Castillo did not seek to replace his attorney until the day of his sentencing hearing, which was held several months after his trial, he submits the appropriate remedy is reversal of his convictions and not simply remand for a new sentencing hearing. We conclude that his claim is without merit. We therefore do not address his proposed remedy.
On appeal, Castillo bears the burden of showing that the court abused its discretion in denying his motion to discharge his retained attorney and to continue the sentencing hearing. (See People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) Applying this deferential standard, we are persuaded that Castillo has failed to carry his burden of showing the trial court's decision "exceeds the bounds of reason." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) Several reasons support our conclusion.
First, Castillo's delayed effort to replace his trial counsel was not reasonable under the circumstances. "A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.'" (People v. Courts (1985) 37 Cal.3d 784, 790-791.)
Castillo retained trial counsel in September 2020. His frustrations with counsel arose, at the latest, during his criminal trial in December 2021. Castillo claimed that he had repeatedly attempted to contact trial counsel by telephone, only for counsel to visit him the day before scheduled court appearances.
Between December 10, 2021, the day after the jury's verdict when trial counsel met with Castillo, and the March 15, 2022 sentencing hearing, trial counsel did not contact Castillo. However, Castillo did not attempt to telephone trial counsel either. Yet, despite Castillo's impending sentencing hearing and his mounting frustrations with counsel, the record shows that he did not make concrete efforts to replace his attorney until the night before his sentencing hearing, when he "fired" counsel.
Castillo was facing a substantial prison sentence. Imposition of even the minimum prison term of 15 years to life, although an unlikely prospect, should have prompted him to seek new counsel immediately. However, Castillo did not raise any issues concerning counsel's absence or his perceived lack of adequate communication until the March 15, 2022 sentencing hearing.
Castillo could have sent a letter to the court communicating his concerns (see Munoz, supra, 138 Cal.App.4th at p. 864), or he could have addressed the court at his February 2022 hearing, for which he was personally present. At a minimum, he could have tried telephoning his attorney or having his family email his attorney. Instead, the record shows that Castillo made no effort to contact his attorney at all until he attempted to fire him. If Castillo harbored genuine concerns about his attorney's communication, or lack thereof, it is unclear why he did not make a diligent effort to replace trial counsel sooner.
Even a request to replace retained counsel made on the first day of a trial is not "necessarily untimely." (See, e.g., People v. Lara, supra, 86 Cal.App.4th at p. 163 [trial court abused its discretion in denying defendant's unopposed motion to discharge retained counsel on date set for trial where defendant was dissatisfied with representation, the case was two years old, and it was not clear that the trial would proceed].) However, Castillo made his request at the last possible opportunity, suggesting that he was attempting to delay proceedings rather than expressing a genuine concern about his attorney's performance.
Second, the trial court considered Castillo's interests and reasonably found that his request was untimely in that it would have resulted in "disruption of the orderly process of justice." The trial court specified, "the victims also have the right to have resolution in the case. They've been waiting for some time now since the date of the verdict."
A crime victim's right to "expeditious enforcement" of the law and "a prompt and final conclusion of the case" is so important, it is guaranteed by our State Constitution. (See Cal. Const., art. I, § 28, subd. (a)(2), (b)(9).) In the abstract, a period of several months between a verdict and sentencing is not a substantial duration of time. While it is tempting to conclude that a brief continuance would have been reasonable under the circumstances, it is unlikely that only a brief delay would have resulted.
Although Castillo claimed he had spoken to other attorneys and trial counsel represented that Castillo's family was making arrangements for the retention of new counsel, the record lacks any indication that Castillo had actually retained or even identified a new attorney he desired to retain. Not only would Castillo need time to secure a new attorney, replacement counsel would need time to review the transcripts from Castillo's criminal trial, which had not yet been prepared, to determine whether there were grounds for a motion for new trial. And, if such grounds even potentially existed, the motion would have to be litigated to completion. Castillo's trial was not long nor was it complex, but realistically, it would take more than a brief continuance to accommodate Castillo's request.
To the extent that the appellate record may not contain all relevant facts, Castillo could have filed a petition for writ of habeas corpus with a declaration summarizing the steps he had taken to secure a new attorney. (See generally, People v. Courts, supra, 37 Cal.3d. at pp. 787-788.) No such petition has been filed with this court.
We also consider the prospect of an indefinite delay against the backdrop of the age and nature of the case. Castillo's case was initially charged in July 2020. It was already a year and a half old by the time he was sentenced, and it was more than a decade since some of the crimes had occurred. The prospect of a greater delay would likely be significant to the victims, who had been traumatized by the sexual abuse they had suffered as children. In light of these facts, the trial court's conclusion that the victim's had "been waiting now for some time since the date of the verdict," and that Castillo's motion would cause disruption of the orderly process ofjustice, was reasonable.
We acknowledge that some factors weigh in favor of the conclusion that Castillo's motion should have been granted. Although there was little discretion available to the trial court in sentencing Castillo, his maximum prison exposure was substantial. Moreover, trial counsel's ability to communicate with Castillo was impaired by trial counsel's health issues, which had worsened since Castillo's trial. However, we are not persuaded that reversal is compelled on these grounds.
In joining Castillo's motion, trial counsel stated that Castillo should have been given "ample opportunity . . . to understand the ramifications and the consequences of the sentencing proceeding. And that simply has not been able to be done." However, counsel's vague statement does not show that he failed to discuss Castillo's possible prison sentence with him or that counsel was unprepared for the sentencing hearing. Rather, the issue, as counsel explained, was that communication between counsel and Castillo was not adequate in Castillo's subjective view.
During the hearing, trial counsel explained, "I'm not going to use this opportunity to state the number of times that I visited [Castillo] …what is critical is … whether or not there had been adequate communication in [Castillo's] opinion and in his mind to prepare him during the trial proceeding and for the sentencing proceeding." He added, "unless the client feels that there's been adequate communication, I think there's still that issue of whether or not the communication was effective." As we read the transcript, it appears that trial counsel made a concerted effort to fall upon the sword for his client so that Castillo could seek new counsel.
One issue not addressed by Castillo is whether trial counsel adequately investigated and assembled mitigating evidence for the court's consideration at sentencing. Sentencing briefs were not filed by either of the parties and the record does not show that letters of support were submitted upon Castillo's behalf by his family and friends. Castillo did not make a request for leniency at his sentencing hearing, so the only mitigating evidence available came from the probation officer's report. Upon this record, we can only speculate as to whether other evidence existed and was simply not presented for the trial court's consideration.
Castillo submits that his case is similar to Munoz, where the defendant made repeated post-verdict requests for replacement counsel. There, the appellate court reversed the judgment, finding the trial court had erred by denying Munoz's requests. (Munoz, supra, 138 Cal.App.4th at p. 870.) We find several significant points of distinction between the instant case and Munoz that persuades us that such a remedy is not ultimately warranted here.
In Munoz, the defendant wrote a letter to the court requesting that a public defender be appointed to represent him based upon his newfound status as an indigent person. Munoz alleged that his attorney, who was retained, had inadequately represented him at trial. (Munoz, supra, 138 Cal.App.4th at p. 864.) Munoz made his request 40 days after he was found guilty and nine days before he was sentenced, and the record contains no indication that his request was opposed by the prosecutor. (Ibid.) When Munoz's retained attorney addressed the court, he stated that he had planned on investigating grounds for a new trial but questioned whether he had the stamina to do so based upon his health issues. (Ibid.) Munoz's attorney did not subsequently file a motion for new trial. He died less than a year later, while Munoz's case was pending on appeal. (Id. at p. 864, fn. 1.)
At one point, the trial court told Munoz he was not automatically entitled to a new attorney, and that he would have to demonstrate a conflict of interest or ineffective assistance of counsel. (Munoz, supra, 138 Cal.App.4th at p. 864.) The court postponed proceedings to give Munoz time to review the probation officer's report and to submit another letter articulating his concerns about trial counsel's representation. (Id. at pp. 864-865.) When proceedings resumed, the trial court declined Munoz's request and postponed sentencing for a month. (Id. at p. 865.)
Munoz is distinguishable from the instant case in several key respects. First, the prospect of a significant delay in Munoz was unlikely because in addition to the fact that the trial had only been two days, the key witness's testimony had already been transcribed. (Munoz, supra, 138 Cal.App.4th at p. 870.) Accordingly, it would not have taken appointed counsel "an inordinate amount of time" to review the record to ascertain whether there were grounds for a new trial. (Ibid.)
Here, Castillo's request was made on the day of his sentencing hearing, which had already been continued twice. The prosecutor, who was ready to proceed, objected to the motion as untimely.
Although Castillo's trial had only lasted several days and was not particularly complex, no portion of the proceedings had been transcribed. Nor had Castillo identified a specific attorney that he had desired to retain to replace trial counsel. Despite trial counsel's assertion that Castillo and his family were "making arrangements for the retention of new counsel," Castillo represented only that he had "spoken to other attorneys." Because a new attorney had not yet been retained or even identified, and transcripts had not yet been prepared, the prospect of a significant delay was far more likely here than in Munoz.
Second, the sentencing hearing in Munoz was continued five weeks after the substitution request had initially been made. (Munoz, supra, 138 Cal.App.4th at p. 870.) Thus, in hindsight, it was unlikely that appointing counsel for Munoz "would have led to 'an unreasonable disruption of the orderly processes ofjustice.'" (Ibid., citing Ortiz, supra, 51 Cal.3d at p. 979.) In contrast, there were no subsequent proceedings here. The prosecutor opposed Castillo's request, indicating she was ready to proceed. This further suggests that accommodating Castillo's request would have resulted in an unreasonable disruption.
Finally, in Munoz, the trial court applied the wrong legal standard by requiring Munoz to demonstrate a conflict of interest or ineffective assistance of counsel before it would replace his retained attorney with appointed counsel. (Munoz, supra, 138 Cal.App.4th at p. 864.) The court had mistakenly assumed that a different legal standard applied when a defendant sought to replace his or her retained attorney post-verdict. (Id. at p. 865.) Critically, the trial court never made a finding that Munoz's motion was untimely, i.e., that it would unduly disrupt the orderly administration of justice. (Id. at p. 870.)
Here, the trial court applied the correct legal standard in denying Castillo's motion. Applying the Ortiz factors, the court found that Castillo's request would "result in the disruption of the orderly process of justice."
For these reasons, we are unable to conclude that Munoz compels us to vacate Castillo's sentence. Although we may have decided Castillo's motion differently, "[a]n appellate tribunal is not authorized to substitute is judgment for that of the trial judge." (People v. Stewart, supra, 171 Cal.App.3d at p. 65.) "[Discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.) Upon this record, Castillo has failed to show that the trial court's decision denying his belated motion "exceeds the bounds of reason." (Ibid.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P. J. SNAUFFER, J.