Opinion
D071051
08-10-2017
THE PEOPLE, Plaintiff and Respondent, v. KYLE HENELY, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN359210) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General for Plaintiff and Respondent.
A jury found defendant Kyle Henely guilty of 10 offenses arising from his use of altered stolen checks, and he was sentenced to five years in prison. Henely, who was represented at trial by appointed counsel, contends the trial court erred by (1) denying his request for a trial continuance to "try to gather money to retain an attorney," and (2) failing to treat the request as one for a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). He also contends the trial court erred by failing to conduct a postconviction Marsden hearing after receiving a copy of a letter Henely sent to his counsel requesting that new counsel be assigned to file a motion for new trial based in part on alleged "[m]isconduct and ineffective counsel." We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Using two altered stolen checks, Henely purchased merchandise at Costco stores and later returned many of the items for cash. He was charged with two counts each (one for each check) of the following: using the personal identifying information of another (Pen. Code, § 530.5, subd. (a)); burglary (§ 459); forgery of a check (§ 476); grand theft (§ 487, subd. (a)); and misdemeanor receipt of stolen property (§ 496, subd. (a)). It was further alleged Henely had suffered a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12) and a prison prior (§§ 667.5, subd. (b), 668).
Undesignated statutory references are to the Penal Code.
A. Prosecution Case
On March 18, 2016, the bookkeeper for GMJ Woodworking ("GMJ") placed in the mail eight checks made out to various GMJ vendors. GMJ's owner, Christopher Laughton, soon learned the vendors did not receive the checks, so the bookkeeper tried to stop payment on them. However, two of the checks had already been used at different Costco locations and had cleared GMJ's bank account.
Viewing GMJ's online banking records, Laughton could see that the two checks made out to Costco had been altered in several ways, including by (1) changing the payee to Costco; (2) adding "Kyle Henly" and "dba" before "GMJ Woodworking"; (3) changing the account-holder's address to one with which Laughton was not familiar; and (4) changing the signature. Laughton had not given anyone permission to alter the checks.
Several Costco employees (an assistant general manager and two loss-prevention employees) testified about the purchases and returns associated with the two altered GMJ checks. On April 10, 2016, Henely used one of the checks to purchase $1,223.11 worth of items at the Costco located in Santee. The next day (April 11), he returned $843.81 worth of those items for cash at the Costco on Moreno Blvd. (the Moreno Costco).
Also on April 11, Henely used the other GMJ check to purchase $1,443.84 worth of items from the Moreno Costco. About 10 minutes after making this purchase, Henely returned $639.99 worth of items for cash at the same store.
On April 12, Henely returned $435.99 worth of Costco items for cash at the Santee Costco.
On April 13, Henely attempted to return Costco merchandise for cash at the store located in San Marcos. However, a "block" had been placed on his account, and the assistant general manager informed Henely he would have to wait until the check used to purchase the merchandise had cleared the bank before the merchandise could be returned for cash.
The assistant general manager of the San Marcos store identified Henely at trial, and testified that Henely had tattoos on the underside of one arm. Henely's Costco account records placed him at the various Costco stores at the times the purchases and returns were made or attempted. And security camera footage from the Costco stores in Santee and San Marcos appeared to depict Henely at those stores when the questioned transactions occurred.
A detective with the San Diego County Sheriff's Department testified that the altered name on the check ("Henly") differed from Henely's name by only one letter. Similarly, the altered account-holder address on the check differed from Henely's home address by only one letter in the street name. The detective believed the photographs on Henely's Costco membership card and California identification card, and the Costco surveillance footage all depicted the same person.
B. Defense Case
Henely's defense theory was that "[t]his is a . . . single-issue case: Identification." Defense counsel's cross-examination of the prosecution witnesses focused on whether the person depicted in the Costco surveillance footage had a different hairline than Henely. The defense also elicited on cross-examination that GMJ had been informed by Moneytree that a person purportedly named "Tracey Crumb" had tried to cash one of GMJ's missing checks. Henely's only defense witness testified to authenticate photographs of Henely's tattoos.
C. Verdict and Sentence
After deliberating for about an hour, the jury returned a guilty verdict on all 10 counts. In a bifurcated bench trial, the court found true the strike prior and prison prior allegations. The court sentenced Henely to five years in prison, and ordered him to pay restitution, fines, and fees.
II. DISCUSSION
A. Henely's Continuance Request
Henely contends the trial court violated his constitutional rights to a fair trial, due process, and the effective assistance of counsel by (1) denying his request for a trial continuance to retain counsel of his choice, and (2) failing to treat the request as one for a Marsden hearing. We disagree.
1. Background
a. August 8, 2016
Trial was set to begin on August 8, 2016 (a Monday). However, due to witness unavailability, the prosecutor requested a two-day continuance. Defense counsel stated he did not oppose the request, but advised the court that "Mr. Henely desires to speak with the judge this morning." The court (Hon. Carlos O. Armour) granted the continuance, then asked Henely, "is this the type of conversation that you think would require me to clear the courtroom?" Henely responded, "As a Marsden hearing probably, yes." The court cleared the courtroom and conducted a Marsden hearing.
Henely told the court he and his appointed attorney, Brian Dooley, had "not seen eye to eye on anything" since "day one." According to Henely, Dooley had been pushing him to accept a plea bargain. Henely also complained that Dooley would not "heed[] any of the information" provided by Jannette V., a friend of Henely's who "did a lot of paralegal work in her past." Henely also stated Dooley had not provided him with all available discovery, including the Costco surveillance footage. Finally, Henely complained that Dooley had not complied with Henely's request that he be produced at the previous court hearing (on July 18, 2016) to request a Marsden hearing.
Dooley responded that he had spent nearly 14 hours working on this case. He explained he had recommended a plea bargain based on the fact Henely was facing 10 counts, some of which would not be barred under section 654, and that Henely had strike and prison priors. Dooley explained he would not communicate with Jannette V. about the case because he was unwilling to waive Henely's attorney-client privilege, but added that an investigator in his office had spoken with her. As for discovery, Dooley said he had provided Henely with redacted discovery in June, and had offered by e-mail a week before the hearing to show Henely the surveillance footage. Henely had responded that he wanted to see the footage, but Dooley had not yet had an opportunity to show it to him.
The court explained to Henely that the plea bargain Dooley was encouraging him to accept (32 months) was for about half the prison time he might get if he lost at trial.
The court denied Henely's Marsden motion, stating: "I'm going to deny your request because I don't see a complete breakdown in communication here. I want you to look at that tape, discuss it with Mr. Dooley afterwards and see what you think you want to do. But I think you should at least look at that tape and see whether you can have a meeting of the minds as to what you should do on the case."
Henely then asked the court, "Your Honor, if I did decide to get private counsel, how does that work?" The court responded, "Well, you have to make the arrangements to do that, and then you'll have to tell the Court. I continued your case until Wednesday, so you better hurry up. But if you come in on Wednesday and say [']I talked with this person and we're making arrangements for the money,['] I'll consider allowing you to have your own attorney. [¶] . . . [¶] Otherwise, I'll probably have to let this case go on."
Henely responded that due to lockdowns at the jail, two days may not give him enough time to view the surveillance footage and hear Dooley's plan for handling the case. Dooley assured the court he would be able to show Henely the footage within that timeframe. Dooley "ma[de] very clear" he was willing to continue communicating with Henely; it was Henely's choice whether to do so.
b. August 10, 2016
On August 10 (a Wednesday), the case was assigned to the Honorable Richard M. Monroy for trial. The court heard argument and ruled on the parties' eight motions in limine. Then, because the court was dark on Fridays, the court and counsel agreed to select the jury the following week. Neither Henely nor Dooley advised the court about Judge Armour's handling of the previous Marsden hearing or Henely's inquiry regarding the process for retaining private counsel.
c. August 16, 2016
On August 16 (a Tuesday), before jury selection began, Dooley informed the court that Henely was requesting a continuance to retain counsel:
"Mr. Henely has informed me last night and this morning that he would like a continuance so that he could try to gather money to retain an attorney. That's his rationale for asking for a continuance.
"And I certainly support Mr. Henely's [c]onstitutional right to counsel of his choosing. And I have made very clear to Mr. Henely from my very first day of representation that he is free to retain any attorney that he so desires, and if he's unable to retain an attorney, then I am happy to represent him.
"And so for those reasons, as we're getting ready to bring a jury up, Mr. Henely is asking for a continuance."
The court confirmed with Dooley and the prosecutor that they were ready to proceed with trial. The court then noted that the case had been sent to his department the prior week and that motions in limine had already been ruled on. The court denied the continuance request, explaining: "So your client's request to continue this to secure counsel of his choosing at this very late time is denied. We are going forward with this trial. [¶] The jury, I'm sure, has been called for, and they're on their way up." The court clerk clarified that the prospective jurors were not actually on their way to the courtroom, but were ready to be sent whenever the court was ready for them.
2. Denial of Request for Continuance
"The right to the effective assistance of counsel 'encompasses the right to retain counsel of one's own choosing.' " (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) Trial courts must "make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney." (People v. Crovedi (1966) 65 Cal.2d 199, 207.) However, a criminal defendant's right to counsel of his or her choosing "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." (People v. Byoune (1966) 65 Cal.2d 345, 346.) We review for an abuse of discretion the trial court's denial of a request for a continuance. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
The trial court did not abuse its discretion in denying Henely's request for a continuance. Judge Armour warned Henely on August 8 that if he had not identified and begun to retain new counsel by August 10, the court would "probably have to let this case go on." Henely made no mention of any such arrangements on August 10. Indeed, as of August 16, Henely requested a continuance so he could "try to gather money to retain an attorney." (Italics added.) The trial court was not required to grant a continuance on such a speculative basis. (See People v. Lefer (1968) 264 Cal.App.2d 48, 50 [no abuse of discretion to deny request for continuance "to afford [the defendant] time to earn enough money on his job to be able to hire and pay a lawyer of his choice"]; Courts, supra, 37 Cal.3d at p. 791 [where "a lawyer-client relationship had been established" with private counsel, "the court was not confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel"].)
The trial court's ruling should have come as no surprise to Henely. In an opinion filed four years earlier in a separate case involving Henely, our court affirmed the trial court's denial of his request for a trial continuance where he based the request on his "need [for] a little bit of time to put money together for a retainer fee." (People v. Henely (June 5, 2012, D059627) [nonpub. opn.] (Henely I).) The trial court found the request too speculative, and we found no abuse of discretion. (Ibid.)
On our own motion, we take judicial notice of our prior nonpublished opinion in Henely I. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171, 1173 [court may take judicial notice of prior nonpublished opinions in related appeals on its own motion].)
The trial court in Henely I explained its denial of the continuance request as follows: " 'I can't give you any time past this to do a retainer. If you had an attorney come in and tell me he was retained on this case and needed a continuance, that would be a different issue. I can't bet . . . that you are going to come up with a retainer or might have an attorney get ready for this case. . . . [¶] . . . The request to continue this case for the potential of getting someone to represent you is denied. [¶] Like I said, if you contacted an attorney and an attorney comes in and says, "Judge, I'm handling Mr. Henely's case from this [day] forward," that's a different set of facts.' " (Henely I, supra, D059627, at p. *4.)
As in Henely I, Henely's reliance here on United States v. Lillie (9th Cir. 1993) 989 F.2d 1054 is misplaced. As our court explained in Henely I: "Lillie is entirely distinguishable from the present case. In Lillie the defendant had retained counsel who it was represented was familiar with the case and could proceed to trial without delay. The trial court denied the requested substitution because it was late. There the Ninth Circuit recognized the authority of trial courts to deny such requests where they would unduly delay the proceedings, but found error where no such delay was likely. (Lillie, supra, at p. 1056.) In this case no counsel had been identified, the fact of ability to retain counsel was speculative and the length of any delay was wholly unknown at that point." (Henely I, supra, D059627 at pp. *7-*8.) The same holds true here.
Henely faults the court (Judge Monroy) for not inquiring of him about the context of his request for a continuance, including the recent proceedings conducted by Judge Armour. However, Henely was present during all the relevant proceedings, yet never explained (or directed Dooley to explain) to Judge Monroy the supposed significance of the earlier proceedings. Henely also focuses on the limited time that transpired between his August 8 inquiry regarding the process for substituting retained counsel and his August 16 request for a continuance, but this ignores the fact attorney Dooley had "made very clear to Mr. Henely from [the] very first day of representation that he is free to retain any attorney that he so desires . . . ." (Italics added.)
In light of the speculative nature of the basis for Henely's continuance request—"to try to gather money to retain an attorney"—we find no abuse of discretion in the trial court's denial of the request.
3. Failure to Sua Sponte Conduct a Marsden Hearing
Under Marsden, supra, 2 Cal.3d 118, "the constitutional right of criminal defendants to the assistance of court-appointed counsel if they cannot afford private counsel encompasses the right to have their court-appointed counsel discharged and replaced by another one when the ' " ' "failure to do so would substantially impair or deny the right" ' " ' to assistance of counsel." (People v. Armijo (2017) 10 Cal.App.5th 1171, 1178 (Armijo), quoting Marsden, supra, 2 Cal.3d at p. 123.) " ' "A defendant is entitled to [this] relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.]' " (Ibid., quoting People v. Fierro (1991) 1 Cal.4th 173, 204.)
"[T]he trial court is not required to conduct a Marsden hearing on its own motion." (People v. Martinez (2009) 47 Cal.4th 399, 421.) However, "once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request." (Armijo, supra, 10 Cal.App.5th at p. 1178.) " '[A] proper and formal' Marsden motion is not required—the defendant need only clearly indicate to the trial court 'in some manner' that he or she is requesting the discharge and replacement of the appointed counsel." (Armijo, at p. 1179, quoting People v. Lucky (1988) 45 Cal.3d 259, 281 & fn. 8.)
Although a defendant's request for a continuance to obtain new counsel "necessarily indicates some dissatisfaction with the attorney who has been representing him," a request to replace appointed counsel with retained counsel (as opposed to other appointed counsel) triggers a Marsden hearing "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." (People v. Molina (1977) 74 Cal.App.3d 544, 548-549 (Molina); see Courts, supra, 37 Cal.3d at p. 795, fn. 9 ["reliance on Marsden, a case which involved the substitution of appointed counsel for another appointed counsel, was inapposite. The standards for evaluating such requests are quite different than those used in the retained counsel context"], italics added; People v. Ortiz (1990) 51 Cal.3d 975, 986 [unlike with retained counsel, "it is ordinarily appropriate to require the defendant who is seeking to substitute one appointed counsel for another to show cause, because he is requesting duplicative representation and repetitive investigation at taxpayer expense"]; see also People v. Bradford (1997) 15 Cal.4th 1229, 1372-1373 [a request for self-representation does not trigger a duty to conduct a Marsden hearing].)
Applying these principles, we conclude the trial court did not err in not construing Henely's request for a continuance to retain private counsel as a request for a Marsden hearing. Nothing specific to Henely's request asserted directly or by implication that the request was motivated by Henely's belief that his counsel was constitutionally inadequate or that the attorney-client relationship suffered from an irreconcilable conflict that would render Henely's representation ineffective. Thus, Henely's request, standing alone, was insufficient to trigger a duty to conduct a Marsden hearing.
We are satisfied that if Henely had intended for the court to construe his request as one for a Marsden hearing, he would have made that clear. First, during the August 8 proceedings, Henely requested a Marsden hearing by name and was the first person to reference the case name. Second, in Henely I, Henely requested a Marsden hearing after the court denied his request for a continuance to retain private counsel, which suggests both that Henely knew how to request a Marsden hearing and understood the distinction between appointed and retained counsel. (Henely I, supra, D059627 at pp. *4-*5.) Finally, during the August 8 Marsden hearing, Henely expressed interest in retaining private counsel even before he and Dooley attempted to resolve the concerns that prompted Henely's Marsden motion, which indicates Henely was interested in retaining private counsel regardless of the outcome of the Marsden proceedings.
Henely faults Judge Monroy for being unfamiliar with the substance of the Marsden proceedings that occurred over a week earlier before Judge Armour. Yet, Henely was aware that different judges presided over the different proceedings, but he did nothing to directly or implicitly inform Judge Monroy whether the request to retain private counsel was based on Marsden-related concerns regarding his appointed counsel. Further, nothing in the record as of the time of Henely's request indicates Judge Monroy would have been aware of the substance of the earlier Marsden hearing or that Henely's pending request to retain private counsel was related to it.
The clerk's transcript shows only that a Marsden hearing was conducted on August 8 and that the motion was denied. The reporter's transcript of the August 8 proceedings had not yet been prepared. Even if the reporter's transcript had been prepared, it would have shown Judge Monroy that Henely was interested in retaining private counsel regardless of the outcome of the Marsden proceedings.
In sum, the totality of circumstances surrounding Henely's request for a continuance to retain private counsel was insufficient to trigger a duty to conduct a Marsden hearing.
B. Postconviction Proceedings
Henely contends the court violated his rights to effective assistance of counsel and due process by failing to conduct a postconviction Marsden hearing after receiving Henely's "pro per motion for 're-trial,' " which complained of ineffective assistance of counsel and conflicts with Dooley. (Capitalization omitted.) This contention lacks merit because it is based on a mischaracterization of the record—Henely's "pro per motion" was really a letter addressed to his counsel, not the court.
After the verdict but before sentencing, Henely wrote a letter addressed only "[t]o Brian Dooley, Public Defender," requesting that "a Motion for Re-Trial . . . be filed on [Henely's] behalf." (Italics added.) Among other grounds, the letter requested that the motion be based on "[m]isconduct and ineffective counsel." Henely also stated in the letter, "I expect a different attorney will be [re]presenting me from this point forward due to substantial [c]onflicts that now preside between the two of us."
We granted Henely's request to augment the record to include the letter. --------
Although the letter was addressed only to Henely's counsel, a proof of service (signed by Jannette V.) in the clerk's transcript indicates a copy of the letter was served on both Henely's counsel and the prosecutor. Moreover, in a declaration filed by appellate counsel in support of Henely's request to augment the record to include the letter, counsel represents that she and the superior court clerk searched the trial court's files "and located the court's file-stamped copy of the pro per letter stored in the case file in an envelope labeled as confidential."
A defendant's rights under Marsden apply "at all stages of a criminal proceeding" and can be invoked informally by way of a letter from the defendant to the court. (Armijo, supra, 10 Cal.App.5th at pp. 1178-1179.) But that is what not what happened here. The addressee line and first sentence of the letter clearly indicate it was a communication from Henely to his counsel. Henely cites no authority to support the proposition that the trial court was obligated to continue reading (and to take sua sponte action based on) what was obviously an attorney-client communication. Nor does Henely cite any evidence in the record indicating he took any further action to bring the letter to the court's attention or to otherwise obtain the relief requested in the letter. Under the circumstances, we find no error in the trial court's taking no action in response to receiving a copy of an attorney-client communication (other than filing it in an envelope labeled confidential).
III. DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: BENKE, Acting P.J. AARON, J.