Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA060767, John A. Torribio, Judge.
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Monica Diaz appeals from the judgment entered upon resentencing following a partial reversal by this court in People v. Diaz (Dec. 22, 2005, B175089) [nonpub. opn.] (Diaz I), which ultimately resulted in her conviction of four counts of first degree murder. Defendant was sentenced to four consecutive terms of 25 years to life and contends that the trial court abused its discretion in failing to order a new probation report, denying her request for a continuance, and imposing consecutive terms; her sentence constitutes cruel and unusual punishment; she is entitled to additional custody credits; and on remand the matter should be assigned to a different trial judge. We conclude that a continuance should have been granted and remand for resentencing without any restriction as to who may preside at that hearing. In all other respects, we affirm.
BACKGROUND
A. Trial Evidence
As set forth in Diaz I, supra, B175089, at pages 2–7: “In July 2000, 16-year-old defendant and her 17-year-old half sister, Laura Renta, lived in Pico Rivera with defendant’s aunt and uncle, Richard and Sylvia Flores, and their four children, 18-year-old Esperanza, 17-year-old Richard Jr., 14-year-old Sylvia Jr., and 10-year-old Matthew. Defendant’s and Laura’s mother had died when defendant was three years old. After a period of living with other relatives, defendant and Laura had come to live with Mr. and Mrs. Flores, where they were considered part of the family. Defendant followed house rules, did her chores, and helped her cousins with their homework.
“Defendant met Michael Naranjo in high school. By March 1999, they were girlfriend and boyfriend, and Naranjo was a frequent guest at the Flores house. In a letter to Naranjo dated March 9, 1999, defendant talked admiringly about murderers. She stated that ‘[t]he best job is to kill people professionally’ and that books about serial killers were her favorites because she could learn from the mistakes of others. In an April 1999 letter, defendant told Naranjo that she thought the Colorado school shootings ‘kicked ass’ and that the ‘Trenchcoat Mafia’ was ‘cool.’ And in another letter written in April, defendant told Naranjo that when there was a minimum school day, the two ‘should do something that day. Not your average day though. Go, kill a few people, break some windows and stuff like that. You get the picture right? Maybe I should add some more details to it. I just have to do something really crazy and really soon. Cause if I don’t, I might hurt the people I care about the most.’
“In the early morning hours of July 21, 2000, the members of the Flores household (except for defendant) were asleep in bed. Mrs. Flores awoke to find an intruder struggling with her husband. She realized that she was bleeding and kicked the intruder, who fell down and fled. Esperanza was awakened by the noise, got up to investigate, and saw someone go out the back door. She went into her parents’ bedroom, where her father told her that he had been stabbed; he fell to the floor. Esperanza called 911.
“Sheriff’s deputies and paramedics who arrived at the scene found Mr. Flores on the floor of the bedroom, dead of multiple stab wounds. Mrs. Flores also had multiple stab wounds, for which she was taken to the hospital. Richard Jr. and Matthew were found dead in the bedroom that they shared. Sylvia Jr. was found dead in the bedroom she shared with defendant. All had died of multiple stab wounds. (Esperanza and Laura, who also shared a bedroom, were not harmed.)
“Witnesses at the scene testified that defendant appeared calm and seemed unaffected in the aftermath of the murders. She kept to herself, playing with a toy bear while others mourned. Investigators found a ‘butterfly’ knife and a throwing knife in one of the bathrooms of the house. A flashlight with a red lens was found in the hallway. Near the gate to the side yard, other knives, an axe, and a roll of duct tape were found. Pieces of duct tape were also found at three locations inside the house and on the air conditioning unit outside.
“Defendant spoke with officers the next afternoon. She said she was in the bathroom during the attack. When shown photographs of the butterfly and throwing knives, defendant said they were not in the bathroom when she was there.
“In the days following the murders, defendant stayed with a relative. Naranjo often came to visit, and he and defendant were affectionate with each other, mainly staying by themselves. At one point defendant visited Mrs. Flores in the hospital. Defendant was dressed ‘inappropriately,’ in violation of family rules, and ‘seemed distant.’
“Forensic examination revealed defendant’s fingerprints or palm prints on the knifes found in the bathroom, the piece of duct tape on the air conditioning unit, and the roll of duct tape. All of the pieces of duct tape found by officers had been part of the same roll. Naranjo’s prints were on one of the knives found in the bathroom and the flashlight.
“Defendant and Naranjo were arrested on July 26, 2000. They were placed in the back seat of a police car by themselves and their conversation was tape-recorded. They professed their love for each other and discussed the possibility of continuing their relationship. Sometime later, Esperanza visited defendant in jail. Defendant told Esperanza that no one was supposed to die and that the plan was to tie up the family members and put duct tape over their mouths. The purpose of this scheme was to bring the family together.
“Naranjo testified for the defense. He stated that defendant told him Mr. and Mrs. Flores had been having problems with each other. In response, Naranjo devised a plan in which he would break into the family home and pretend to commit a robbery. But, explained Naranjo, unknown to defendant he actually planned to kill all the family members once he got inside. Naranjo had no particular reason for wanting to do this, although he had been thinking about killing people from the time he was 13 or 14 years old. (In March or April 1999, Naranjo wrote a letter to defendant in which he said that the one thing he wanted to ‘do before [his] life ends, one thing is to kill a shit-load of people.’) While he was attacking Mr. and Mrs. Flores in their bedroom, Mrs. Flores kicked him. Naranjo then went into the bathroom, where defendant was waiting, and handed some knives to her. She put them down and left the bathroom. Naranjo then fled.
“Naranjo was jointly charged with defendant. He entered a plea and was convicted of four counts of special circumstances murder and one count of attempted premeditated murder.”
“Testifying in her own behalf, defendant asserted that she had written letters to Naranjo about murder because she knew he was interested in the subject and she wanted to get him to like her. She thought Naranjo’s interest in killing people was ‘just talk.’ She knew that Naranjo had a collection of knives, but did not think much of it.
“According to defendant, at one point Mr. and Mrs. Flores started to argue with each other. She thought their marriage was at risk and felt anxious about what would happen to her if they separated. Hearing this, Naranjo proposed a plan by which he would come to the house, bind the family members, gather property and pile it in the living room as if it were going to be stolen, and then leave without taking anything. Naranjo said that doing so would scare the family and make them unite. Defendant initially thought the plan was unworkable, but reconsidered when it was explained that the lights would be off so Naranjo would not be identified.
“Defendant continued that, on the night of the murders, she went outside when Naranjo arrived and helped him to cut the duct tape. She did not see any weapons at that time. The two then entered the house and defendant went into the bathroom. She heard struggling noises from other rooms, and when Naranjo came into the bathroom he had two knives and was covered in blood. At that point, defendant realized that her family members had probably been hurt. She went to see what was happening as Naranjo fled. She did not want to believe what she saw and did not tell the police because she was in denial. She told the police about Naranjo only after she and Naranjo had been arrested.
“Following the testimony of Naranjo and defendant, the defense presented child psychiatrist Dr. Gregory Doane. Dr. Doane testified that for about one and one-half years he had met with defendant for 45 minutes every two weeks in the juvenile facility where she had been detained following the murders. (Defendant also met with a social worker psychotherapist during that time.) Dr. Doane’s initial diagnosis of defendant was dysthymic disorder, a condition of low- to mid-grade depression which persists throughout one’s life. Two weeks later, Dr. Doane revised the diagnosis to include major depression with psychotic features. In September 2000, Dr. Doane again revised the diagnosis, this time to include borderline personality disorder.
“Dr. Doane was of the opinion that at approximately three years of age, defendant ‘apparently must have gone through a lot of abandonment, . . . feelings of no stability, and throughout the rest of her teenage years kind of emotionally relived those chaotic years, and being very afraid of being abandoned.’ Defendant reported that between ages four and six, she invented an imaginary character, a person named ‘Freddy.’ The character had ‘stayed with her’ and ‘took on a psychotic hallucinatory value when she was under stress.’ Dr. Doane explained that ‘[w]hen stressed [defendant] tends to disassociate . . . . She just can’t realize what’s gone on.’ Defendant’s failure to report that Naranjo had committed the murders was consistent with her diagnoses. ‘She idolized [Naranjo], she couldn’t see any wrong in him, and she just couldn’t put two and two together when she saw what happened.’ ‘[U]ntil the very end she considered [Naranjo] to be God, basically.’ It was ‘credible to [Dr. Doane] that [defendant] just basically could not understand what had happened and just refused to think about it.’
“In argument to the jury, the prosecutor asserted that defendant and Naranjo had jointly planned the murders and defendant was therefore guilty of premeditated murders and murder by lying in wait, as well as attempted premeditated murder. The prosecutor further argued that defendant’s testimony constituted a judicial admission of first degree felony murder under the theory that defendant had aided and abetted a burglary in which she intended that her family be falsely imprisoned in order to frighten them.
“In defendant’s argument to the jury, counsel referred to Dr. Doane’s testimony about defendant’s efforts to avoid abandonment and her idolization of Naranjo. Counsel continued that, ‘as crazy as it seems, [defendant] believes that [Naranjo is] going to come and save the day, her knight in shining armor. This plan about a phony break-in to bring the family together, [an] outside threat to cause the family to stay together.’ Thus, counsel urged, Naranjo was solely responsible for the murders. Counsel also acknowledged the existence of the felony-murder theory but did not directly refute it, asserting that the prosecutor was just ‘throwing [it] against the wall and seeing what sticks.’”
Based on the foregoing evidence, defendant was convicted of attempted premeditated murder and four counts of murder with special circumstance findings of multiple murder. She was sentenced to consecutive terms of life without the possibility of parole on the four murder counts and to a life term for attempted premeditated murder.
B. Prior Appeal
In her prior appeal, defendant contended that the trial court erroneously limited consideration of evidence that she thought Naranjo would only frighten her family members and did not know of his plan to kill them. We found merit in defendant’s contention, noting among other things that the jury was erroneously instructed that the psychiatric evidence could be considered only to explain defendant’s conduct after the murders. (Diaz I, supra, B175089, at pp. 9–10.) We also concluded that the error was prejudicial with respect to the element of defendant’s intent, thereby requiring reversal of the special circumstance findings and the attempted murder verdict. (Id. at pp. 11–12.) In addition, we reasoned that defendant’s convictions of four counts of first degree murder could be sustained on the felony-murder theory that defendant aided and abetted Naranjo’s entry into the home with the intent to harm occupants other than defendant. (Id. at p. 13.) Accordingly, we reversed the conviction of attempted murder and the multiple murder special circumstance findings and affirmed the judgment in all other respects. (Id. at p. 14.)
Defendant thereafter filed a petition for review in the California Supreme Court, which was denied on April 12, 2006 (S140631). This court issued a remittitur on April 26, 2006.
C. Proceedings on Remand
The minute order of a hearing in the trial court on January 31, 2007, reflects that the court received the remittitur in May 2006. The prosecutor elected not to retry the attempted murder and special circumstance allegations. The minute order also sets forth a tentative ruling on the matter, indicating that the court would dismiss the attempted murder conviction, strike the special circumstance allegations, and sentence defendant to four consecutive terms of 25 years to life. The court further reappointed defendant’s trial counsel, Richard Everett, and set the matter for argument on February 21, 2007.
A minute order dated February 21, 2007, states that the clerk had previously received a telephone call from Attorney Everett in which Everett stated he would be asking for a continuance. Neither Everett nor the prosecutor appeared at the February 21 hearing, and the court continued argument on its tentative ruling to March 7. On March 7, the matter was continued by stipulation to March 28.
On March 27, 2007, defendant filed a motion for a continuance of the resentencing hearing. In a declaration, Everett stated that he learned of the remittitur just before beginning a special circumstance trial on which a verdict had been returned on March 9. At the time of the declaration (March 26), he was engaged in trial and was scheduled for a preliminary hearing on a three defendant special circumstance case starting April 2. Everett asked that resentencing be continued to April 4 “as a setting date to discuss a continuance” to a future date.
On March 28, 2007, the matter was continued to April 6. On April 6, it was continued to April 12.
On April 12, the matter came on for hearing, with both counsel and defendant present. Everett requested that defendant’s resentencing be continued to April 24, explaining that his trial schedule had not allowed adequate time to prepare a sentencing memorandum and that defendant had asked to waive her presence for any continued hearing. Everett further requested a new probation report coupled with a continuance to a later date if that request were to be granted. Everett urged that in considering whether to impose concurrent or consecutive sentences, the court could consider diminished capacity, cruel and unusual punishment, and other issues. The prosecutor responded that in an off-the-record chambers conference, Everett conceded that a new probation report was not required. The prosecutor further argued that ordering a new report would be “an absolute waste of time.” Everett again argued that he did not have adequate time to prepare for the resentencing hearing given his trial schedule, noting the “dramatic” difference between concurrent and consecutive terms of 25 years to life. Ultimately, defendant’s request for a continuance was denied. The court then requested argument on sentence.
The prosecutor argued that defendant’s crimes were “horrific” and “egregious,” deserving of consecutive sentences. Everett noted that defendant’s convictions were now based only on the felony-murder rule. He further asked the court to consider that defendant was 16 years old at the time of the crimes and stated that “the court is aware of the evidence with regard to her diminished capacity at the time . . . that was not allowable during the trial, but the court can consider it during the re-sentencing.”
The court, stating that it had tried the case and was familiar with the facts and circumstances, sentenced defendant to four consecutive terms of 25 years to life. The attempted murder conviction and the special circumstance findings were then dismissed.
DISCUSSION
“The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. [Citations.]” (People v. Sakarias (2000) 22 Cal.4th 596, 646.) “In determining whether a denial [of a continuance] was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1013.)
Under the circumstances of this case, we must conclude that denial of the continuance for resentencing constituted an abuse of discretion. This is not a situation in which a defendant has sought a continuance of trial in the hope that prosecution witnesses will become unavailable or that the period of release on bail will be extended. “This was a sentencing, not a trial.” (People v. Trapps (1984) 158 Cal.App.3d 265, 271.) In addition, we cannot perceive of the possibility of any personal gain for defendant if the resentencing were to be continued. Indeed, defendant even expressed a desire to waive her presence if the hearing were to be continued.
The appointment of Everett as defendant’s counsel on resentencing was not something that Everett had specifically sought, and it came at a time when his trial calendar was laden with other substantial cases. At resentencing, defendant was facing the dramatic difference between a life sentence that had 100 years rather than 25 years as its determinate term. There was little to be lost in granting a continuance to provide Everett with a full opportunity to develop whatever arguments in favor of concurrent sentences might be available.
Given our conclusion that the trial court abused its discretion in denying defendant’s request for a continuance, we need not discuss defendant’s arguments regarding the necessity of a new probation report, abuse of discretion by imposing consecutive sentences, and cruel and unusual punishment. Nor are we able to identify any expression of bias on the part of the trial judge that would require further proceedings to be held before a different judge on remand. And at resentencing, the court will have the opportunity to recalculate the conduct credits to which defendant is entitled.
See People v. Tatlis (1991) 230 Cal.App.3d 1266.
DISPOSITION
The judgment is affirmed and the matter is remanded for resentencing.
We concur: VOGEL, J., ROTHSCHILD, J.