Opinion
G051771
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JIMMY RAY DAVIS, JR., Defendant and Appellant.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; CHANGE IN JUDGMENT
The opinion filed on February 15, 2017, is hereby modified as follows:
On page 13, the Disposition paragraph is modified to read as follows:
The judgment is modified (§ 1260) to stay (§ 654) the eight-month consecutive term imposed for carrying a concealed, stolen firearm in a vehicle (§ 25400, subd. (a)(1), (c)(2) [count 2]), the one-year gang enhancement associated with count 2 (§ 186.22, subd. (b)(1)(A)), and the two-year concurrent term for carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1), (c)(3) [count 3]). In all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
Appellant's petition for rehearing is DENIED. This modification does constitute a change in the judgment.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF0919) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed as modified with directions. Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Jimmy Ray Davis, Jr., of residential first degree burglary (Pen. Code, §§ 459, 460, subd. (a) [count 1]; all statutory references are to the Penal Code unless noted), carrying a concealed, stolen firearm in a vehicle (§ 25400, subd. (a)(1), (c)(2) [count 2]), carrying a concealed firearm in a vehicle by an active gang participant (§ 25400, subd. (a)(1), (c)(3) [count 3]), unlawful possession of a concealed firearm in a vehicle (§ 25400, subd. (a)(1), (c)(4) [count 4]), reckless driving while fleeing police (Veh. Code, § 2800.2 [count 5]), and active participation in a criminal street gang (§ 186.22, subd. (a) [count 7].) The jury also found he committed the crimes to benefit a criminal street gang (§ 186.22, subd. (b) [counts 1-4]). Davis contends the trial court abused its discretion and violated his constitutional rights when it denied his request for a continuance to retain counsel. He also contends the trial court violated section 654 by imposing terms for carrying a concealed, stolen firearm in a vehicle (count 2) and carrying a concealed firearm in a vehicle by an active gang member (count 3). We find no basis to reverse the judgment, but agree with Davis's section 654 argument and therefore affirm the judgment as modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of March 14, 2013, Jeffrey Gerhardt locked the doors and windows of his Placentia home and departed. When he returned hours later, he discovered someone had broken into his residence. The door leading into the backyard was open and there was glass on the floor next to the front door. He described the upstairs as "completely destroyed" with drawers pulled out, closets emptied, and "everything . . . scattered." A handgun and loaded ammunition magazine were missing from a nightstand. The thieves took a pillow case, watches, and collectable coins. Gerhardt had noticed a silver-blue Cadillac SUV parked across the street from his driveway when he arrived home and heard its engine start.
Placentia Police Officer Brian Conroy joined in a high-speed pursuit of an SUV matching Gerhardt's description. Conroy drove with lights and sirens activated and observed the Cadillac's driver reach a maximum speed of 120 miles per hour, drive on the shoulder of the road, and commit at least 20 vehicle code violations. The pursuit lasted approximately 30 minutes, and covered almost 40 miles, from Placentia to Los Angeles. During the pursuit, Davis, later identified as the SUV's driver, threw Gerhardt's handgun onto the freeway.
The vehicle pursuit ended in a neighborhood claimed by the Rollin 60's Crips gang. Davis jumped out of the Cadillac and ran from the scene. Conroy apprehended one of Davis's passengers, Jacob Cray, who had $3,000 concealed in his sock. Officers subsequently located Davis hiding in the closet of an apartment connected to the Rollin 60's Crips gang. Gang officers testified Cray and Davis were active participants in the Rollin 60's Crips criminal street gang, which used burglaries to fund the gang.
The SUV had been rented on March 13, 2013, to an "Erica Suarez" at the Ontario airport. Investigators swabbed Gerhardt's doorknobs and the firearm for DNA, but the DNA sample was not suitable for comparison. No fingerprints were found on Gerhardt's firearm.
Following trial in February 2015, the jury convicted Davis as noted above. In April 2015, the court sentenced Davis to an aggregate term of 11 years and four months in prison.
II
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion or Violate Davis's Constitutional Rights in Denying a Further Continuance to Retain Counsel
Davis contends the trial court abused its discretion and violated his constitutional rights when it denied his request for a continuance so he could retain counsel. The trial court did not err. Davis's case had been pending for almost two years and the court previously had granted a continuance to retain counsel. Davis made each continuance request on the day set for trial, and although Davis had been given time to hire an attorney, he failed to show he had retained a lawyer or that he had the financial ability to hire one. Finally, both sides were ready for trial, and an additional continuance would have disrupted the court's calendar and inconvenienced witnesses and other participants.
Background
The Orange County District Attorney filed a complaint against Davis on March 18, 2013. The court conducted a preliminary hearing on November 20, 2013. Appointed counsel represented Davis at the preliminary hearing. On December 4, 2013, the court arraigned Davis.
Davis, who bailed out of custody, received several continuances for discovery issues and defense investigation. On the original date set for trial, January 15, 2015, the trial court granted Davis's motion to continue the case based on the possibility Davis would retain counsel. The court continued the trial date to January 21, 2015.
On January 21, the trial court heard and denied Davis's motion to replace his appointed counsel. After the hearing, the court advised the prosecutor Davis was requesting a continuance to retain counsel. Defense counsel stated Davis told him in November he wanted private counsel and he advised Davis to act quickly. He told Davis to have the new lawyer contact him for copies of the police reports, and then advise the court when new counsel would be prepared to try the matter. Defense counsel attempted to contact Davis almost every week thereafter, but either Davis's phone was not working, or he did not return counsel's calls. Defense counsel acknowledged the prosecutor's prior agreement to continue the matter for one week, although Davis wanted a much longer continuance because his family was waiting for income tax refunds to hire an attorney.
The prosecutor opposed a continuance because Davis had made no efforts to retain counsel during the one-week continuance. The prosecutor related the victim, Gerhardt, had expressed frustration with the delay. The prosecutor also expressed concern the delay would make locating civilian witnesses more difficult.
The trial court trailed the case to the following day so Davis could consider the prosecutor's plea offer, which Davis rejected the next day. The prosecutor and defense counsel agreed to trail the case to Wednesday, January 28, but on Thursday, January 29, the court assigned the case to a different department for trial. Defense counsel requested another continuance, asserting Davis's family had paid $7,000 to retain a "Mark Soprano," but counsel stated he had not conferred with Soprano and agreed it was unlikely Soprano would be ready to start trial the following Monday because Soprano probably did not have any of the police reports.
Davis stated he had spoken with Soprano, who was aware of the court date. Soprano had not agreed to appear because Davis had not given him the money. Davis said he would meet with Soprano after court and Soprano would appear at the next court date.
The trial court denied Davis's continuance motion, explaining the case was almost two years old and Davis had not retained counsel although he had been talking about doing so since November. The court suspected Davis wanted to delay the trial, noting it was the eighth day in the ten-day trailing period.
After a recess, defense counsel advised the court Davis did not want defense counsel to answer ready for trial, although counsel declared he was prepared to try the case. Davis claimed he had retained Soprano and a representative from Soprano's office would appear on Monday. The court advised Davis his retained attorney could represent him on Monday, but the trial would proceed that day.
Later that afternoon, defense counsel advised the court Davis told him he personally spoke to Soprano over the lunch hour, and Soprano told Davis he would personally appear on Monday. The court stated it would discuss the case with Davis's retained attorney if he appeared on Monday.
On Monday, February 2, a new lawyer did not appear. Davis advised the court he planned to hire a private attorney but was waiting on his family to furnish the balance of counsel's fee. He claimed to have spoken with private counsel, who was willing to step in, but Davis needed at least a week or two for this to happen. Davis claimed he had given discovery to the new attorney, and requested another hearing to replace his appointed counsel. After hearing Davis's motion, the court denied his request.
The next morning, defense counsel advised the court Davis was willing to take the seven-year plea offer if still available, but Davis wanted to remain out of custody for another week. The prosecutor stated Davis would have to begin serving his sentence immediately. After speaking with defense counsel, Davis agreed to take the offer. But during review of the Tahl form, he changed his mind and said he wanted to go to trial.
Discussion
A criminal defendant is entitled to assistance of counsel at all critical stages of the proceedings. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) "Underlying this right is the premise that 'chosen representation is the preferred representation. Defendant's confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.'" (People v. Courts (1985) 37 Cal.3d 784, 789-790 (Courts).)
Although "[a]ny limitations on the right to counsel of one's choosing are carefully circumscribed" (Courts, supra, 37 Cal.3d at p. 790), the right is not absolute. (People v. Rhines (1982) 131 Cal.App.3d 498, 506 (Rhines).) "[T]he state should keep to a 'necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources.'" (People v. Ortiz (1990) 51 Cal.3d 975, 982.) The right to retained counsel "'can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' [Citations.] The right to such counsel 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.'" (Courts, at p. 790.)
Courts carefully circumscribe any limitations on the right to continuances when linked to retaining counsel of one's own choosing, and courts therefore have broad discretion to grant a continuance to permit a defendant to retain counsel. (Courts, supra, 37 Cal.3d at p. 790; People v. Jeffers (1987) 188 Cal.App.3d 840, 850 (Jeffers).) But the trial court also is afforded "wide latitude in balancing the right to counsel of choice against the needs of fairness, [citation] and against the demands of its calendar." (United States v. Gonzalez-Lopez (2006 548 U.S. 140, 152.) "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.'" (Courts, at pp. 790-791.) In deciding whether the trial court's denial of a continuance violated a defendant's right to due process, an appellate court "looks to the circumstances of each case, '"particularly in the reasons presented to the trial judge at the time the request [was] denied."'" (Id. at p. 791.)
We review the trial court's ruling for abuse of discretion. It is Davis's burden on appeal to show "'an abuse of judicial discretion in the denial of his request for continuance to secure new counsel.'" (Jeffers, supra, 188 Cal.App.3d at p. 850; accord, Rhines, supra, 131 Cal.App.3d at p. 506.)
In Courts, supra, 37 Cal.3d 784, the Supreme Court concluded the trial court abused its discretion when it denied a continuance to permit the defendant to be represented by an attorney he had retained approximately one week before trial. (Id. at pp. 794-796.) The Supreme Court explained the defendant conscientiously had informed the trial court of his intention to retain private counsel weeks before trial was to begin (id. at pp. 791-792) and had been diligent in his effort to retain counsel, successfully completing the task about a week before trial, rather than at the last minute. (Id. at p. 794.) The Supreme Court emphasized the trial court "was not confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel." (Id. at p. 791.)
Here, in contrast, Davis had not retained counsel when he first requested a continuance on the day set for trial. The court nonetheless granted him a one-week continuance, but a week later Davis was no closer to retaining counsel than he had been a week before. Significantly, Davis provided no evidence an attorney named Mark Soprano existed. Defense counsel had not spoken to Soprano, and Soprano had not contacted the court. Davis also provided no evidence he or his family was likely to raise sufficient funds to retain an attorney. Although Davis stated his family had paid the lawyer $7,000, this story changed a week later. The trial court was thus confronted with substantial uncertainty whether the funds existed, or ever would exist, to enable Davis to retain private counsel.
"The condition of being 'financially able' for the purposes of employing counsel of choice must be limited to exclude those who cannot hire the services of chosen counsel at the time of the proceedings against him. To hold otherwise would be to encourage frivolous and unjustified delay in and misuse of the trial process." (People v. Lefer (1968) 264 Cal.App.2d 48, 50; see United States v. Friedman (D.C. Cir. 1988) 849 F.2d 1488, 1490 ["[o]ne of the express limitations upon the right to choose one's own attorney is that the defendant be 'financially able' to retain his counsel of choice"].) Davis had not demonstrated he was financially able to retain private counsel when he requested a continuance. Due to the speculative nature of the request, the proximity of the trial date, and the readiness of both sides to proceed to trial, the trial court properly balanced the "orderly processes of justice," including the demands of its calendar, with Davis's right to counsel of his choosing and acted within its discretion in denying Davis's request for a continuance. (See People v. Pigage (2003) 112 Cal.App.4th 1359, 1367 [no abuse of discretion or denial of Sixth Amendment rights when defendant offered no evidence he had attempted to retain counsel or had taken steps to secure funds to hire private counsel after several continuances over 15 months.)
Davis had almost two years to secure private counsel before the January 2015 trial date, but Davis failed to show he retained private counsel before the trial date. Putative retained counsel made no effort to contact the trial court before the start of trial. There was no indication Davis would be able to secure counsel if the court granted additional time. Another continuance would have disrupted the court's calendar and inconvenienced witnesses and prospective jurors. (See, e.g., People v. Keshishian (2008) 162 Cal.App.4th 425, 429 [no abuse of discretion when the trial court denied appellant's last-minute attempt to discharge counsel on the day set for trial]; People v. Turner (1992) 7 Cal.App.4th 913 919 ["[D]efendant sought to replace his attorney on the day of trial. This 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"].) The trial court acted within its discretion when it denied Davis's request. B. Section 654
Davis also contends the trial court violated section 654 by imposing terms for carrying a concealed, stolen firearm in a vehicle (count 2) and being an active gang member carrying a concealed firearm in a vehicle (count 3). The Attorney General concedes the issue as to count 3 (possession of a concealed firearm in a vehicle), but not as to count 2 (carrying a concealed firearm in a vehicle). We agree with the Attorney General.
At sentencing, the trial court imposed a prison sentence of 11 years and four months, comprised of the four-year midterm for first degree residential burglary plus a five-year consecutive term for the gang enhancement associated with that conviction (§ 186.22, subd. (b)(1)(B) [person convicted of a serious felony to benefit criminal street gang shall be punished by an additional term of five years]; § 1192.7, subd. (c)(18) [first degree burglary is a serious felony]), an eight-month (one-third midterm) consecutive term for carrying a concealed, stolen firearm in a vehicle (count 2) plus a one-year consecutive term (one-third midterm) for the gang enhancement associated with that conviction (§ 186.22, subd. (b)(1)(A) [person convicted of felony to benefit criminal street gang shall receive consecutive two, three, or four year term]), and an eight-month consecutive term (one-third midterm) for reckless evading (Veh. Code, § 2800.2 [count 5]). The court also imposed a two-year concurrent midterm for carrying a concealed firearm in a vehicle by an active criminal street gang participant (count 3) and an associated gang enhancement (§ 186.22, subd. (b)(1)(A)), and a two-year concurrent term for active participation in a criminal street gang. Finally, the court stayed (§ 654) a concurrent term for unlawfully carrying a concealed firearm in a vehicle (count 4).
Davis argues the trial court erred in failing to stay the concurrent term on count 3 because "[c]ounts 2, 3, and 4 arose from a single act of appellant carrying and concealing the firearm . . . . [T]hese crimes arose from a single act, [and Davis] could suffer only a single punishment."
The Attorney General concedes the issue. We accept the concession. Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one." Here, the trial court imposed multiple punishments for the single act of concealing a firearm in a vehicle. (People v. Jones (2012) 54 Cal.4th 350, 352, 360 [defendant could not be punished separately for the crimes of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public where he was found with a loaded revolver in his car that was not registered to him].) We will modify the judgment to stay the concurrent term on count 3.
Davis also argues the trial court erred by failing to stay (§ 654) the term on count 2 because the residential burglary (count 1) and carrying the firearm stolen in the burglary concealed in the getaway vehicle "arose from a single act with a single intent and objective." We agree.
In addition to prohibiting multiple punishment for a single act, section 654 also precludes multiple punishment where there is a course of criminal conduct comprising indivisible acts. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. If all the offenses are incidental to or are the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. (See People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) But if the "defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.'" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) Whether section 654 applies is a question of fact for the trial court, and we must uphold the court's determination if supported by substantial evidence. (People v. Kurtenback (2012) 204 Cal.App.4th 1264, 1289.)
In People v. Garfield (1979) 92 Cal.App.3d 475 (Garfield), the defendant was convicted of first degree burglary and possession of a firearm by a narcotics addict. The appellate court rejected his argument he could not be punished for both a burglary and his possession of a firearm taken during the burglary. The court noted "here there was a passage of six days between the separate acts of acquisition of the gun and appellant's apprehension while in possession; and more importantly the gun was not 'cached' or stored with the rest of the fruits of the burglary in appellant's residence or elsewhere, but was by his own admission in his personal possession immediately preceding his arrest, having been placed by him in his wife's purse when pursuing deputies turned their red lights on prior to stopping his car. [¶] Under these circumstances we find a clearly distinct offense, severable from the burglary not merely in terms of continuity, but in terms of intention as well. (Garfield, at p.478, second italics added.) Garfield concluded the evidence disclosed the defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other . . . ." (Id. at p. 478) Garfield also noted that "In arriving at this conclusion, we emphasize the circumstances of his possession rather than the mere passage of time as the key element supporting it." (Ibid.)
Here, no substantial evidence supports the notion Davis harbored an independent intent separate from his objective of carrying away the firearm he stole in the burglary. Unlike the defendant in Garfield, Davis's burglary was ongoing when pursued by police officers since he had not reached a place of temporary safety. (See People v. Cavitt (2004) 33 Cal.4th 187, 208.) Indeed, the prosecutor's closing argument noted Davis's flight from pursuing officers was in a vehicle connected to the burglary and the victim's firearm was stolen in that burglary. It therefore follows Davis's possession of the firearm in the getaway vehicle is the fruit of his single objective to steal the victim's property in a burglary of the victim's residence. In other words, Davis's theft of the firearm in the burglary was part of an indivisible transaction.
III
DISPOSITION
The judgment is modified (§ 1260) to stay the concurrent terms imposed for carrying a concealed, stolen firearm in a vehicle (§ 25400, subd. (a)(1), (c)(2) [count 2] and being an active gang member carrying a concealed firearm in a vehicle (§§ 25400, subds. (a)(1), (c)(3) [count 3]). In all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.