Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a order of the Superior Court of San Diego County Nos. SCD200034, SDC201637, Francisco P. Marty, Commissioner.
O'ROURKE, J.
Gerald Dean Keeler appeals an order revoking probation on the grounds the trial court abused its discretion by (1) denying his request for a continuance to obtain private counsel and (2) refusing to strike one or more of his prior strike convictions. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The People filed a complaint in case no. SCD200034, alleging that on approximately July 3, 2006, Keeler possessed cocaine base (Health and Saf. Code, § 11350, subd. (a), count 1); was under the influence of cocaine (§ 11550, subd. (a); count 2); drove under the influence of drugs (Veh. Code, § 23152, subd. (a), count 3); possessed paraphernalia used for narcotics (§ 11364, count 4); drove with a suspended license (Veh. Code, § 14601.1, subd. (a), count 5); and possessed marijuana (§ 11357, subd. (b), count 6). The information alleged Keeler had eight prior convictions, including two felony robbery convictions that qualified as strikes within the meaning of the "Three Strikes" law. (Pen. Code, §§ 211, 667, subd. (b) through (i), 668, and 1170.12.)
All further statutory references are to the Health and Safety Code unless otherwise stated.
A separate information in case no. SCD201637 alleged that on approximately September 17, 2006, Keeler possessed cocaine base (§ 11350, subd. (a), count 1) and alleged as an enhancement that he committed the crime while released on bail. (Pen. Code, § 12022.1, subd. (b).)
On November 14, 2006, in a negotiated disposition of both matters, Keeler pleaded guilty to two counts of possession of cocaine base (§ 11350, subd. (a)), and admitted one prior strike allegation and the Penal Code section 12022.1, subd. (b) enhancement. The court suspended imposition of sentence, placed him on three years' probation, and ordered him to drug treatment under Proposition 36.
On February 15, 2007, the trial court found Keeler violated his probation by testing positive for drugs. The court reinstated probation and stated, "You're ordered to go to probation today to get a referral to [Veterans Village of San Diego] I'm not sure if there's a bed today, I hope so, but there might not be. And you have cocaine in your system, so you'll probably have to wait until tomorrow."
On May 18, 2007, the court found Keeler violated probation for being arrested while he was under the influence, and reinstated probation, stating, "You're ordered to continue the program at the V.A. until we can switch it to the [Veterans Village of San Diego]."
At a probation revocation hearing on July 2, 2007, the court found Keeler violated probation based on his positive drug tests. The deputy public defender counsel told the court, "[Keeler] and I discussed, way back in May, his desire to go into a [Veterans Village of San Diego] program, but as the court can see . . . he's got an ankle bracelet, which is a monitoring device for a Temecula misdemeanor for domestic violence. And he still lives with his wife, with permission of the court. The situation in Temecula is preventing him from qualifying for a residential treatment program." The court granted Keeler's request to continue the probation revocation hearing to July 30, 2007. The court noted, "[e]ven with the ankle bracelet, you're still testing positive. I understand addiction, but I'm concerned basically for you. I don't know what I can do at this time, other than to tell you that if you are in the V.A. program, I really hope you work that program between now and the time I see you in about three to four weeks." The court added, "And one last thing, for the record, so it's clear: I want you to come in with proof of three self-help meetings."
On July 30, 2007, Keeler, represented by a deputy public defender, sought a continuance of the probation revocation hearing for him to hire a private attorney. The trial court denied the request because Keeler, having received timely notice of the deferred hearing date, failed to avail himself of the opportunity to hire private counsel. At the hearing, it was disclosed that on July 23, 2007, Keeler was arrested for possession of drug paraphernalia. The court revoked Keeler's probation.
At a sentencing hearing on September 17, 2007, the trial court denied Keeler's motion to strike a prior strike conviction, rejecting Keeler's argument that the 1993 strike prior was too remote in time. The court explained that in 1993, "Mr. Keeler was given probation and local custody time, and shortly after his arrest on the strike case, but while his sentencing was still pending on that matter, he picked up a new, theft-related case, which was a misdemeanor, and then he subsequently picked up some other matters . . . everything was wrapped together for a six-year prison commit." The court added that in declining to strike the strike, it also took into account "the convictions which Mr. Keeler has suffered since being released from prison and while they all are drug-related, I don't think the court could say, in fairness, that he has not been given an opportunity to do treatment as to those matters." The trial court denied probation and sentenced him to prison for the lower term doubled of 32 months in prison in case SCD200034, and a consecutive term one third the middle term doubled of 16 months in case no. SCD201637. The court followed the probation report and awarded Keeler 26 days of custody credits.
DISCUSSION
I.
We reject the contention the trial court abused its discretion in denying Keeler's requested continuance for him to hire private counsel. A defendant's right to counsel of choice must be considered when the defendant requests a continuance to substitute counsel, and the "courts are required to '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. Courts (1985) 37 Cal.3d 784, 790.) However, a continuance may be denied where "the accused is 'unjustifiably dilatory' in obtaining counsel." (Id. at pp. 790-791.) Reviewing courts have also upheld decisions by trial courts to deny requests for continuances where "participation by a particular private attorney was still quite speculative at the time the motion for continuance was made." (Id. at p. 791, fn. 3.) The denial of a continuance will be affirmed on appeal absent a showing of an abuse of discretion. (Id. at p. 789.)
" 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' " (People v. Crovedi (1966) 65 Cal.2d 199, 207.) When a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) " 'Continuances shall be granted only upon a showing of good cause.' " (People v. Beeler (1995) 9 Cal.4th 953, 1003.) "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.] One factor to consider is whether a continuance would be useful." (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. (People v. Beames (2007) 40 Cal.4th 907, 920.)
Here, on the day set for the hearing, Keeler had not yet retained a private lawyer, although Keeler had advance notice of the hearing. Keeler did not present evidence regarding his attempts to contact private counsel. Under these circumstances, the trial did not abuse its discretion in denying the continuance.
II.
The California Supreme Court has held, "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to [section 1385, subd. (a)], or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The California Supreme Court further explained, "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce [ ] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.] [¶] But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] . . . '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
Here, the trial court did not abuse its discretion in finding that Keeler's 1993 conviction was not too remote in time to be considered in this case. Keeler has not shown he may be deemed outside the spirit of the three strikes scheme. His long criminal record demonstrates he repeatedly reoffended since his 1993 offense, notwithstanding several grants of probation.
III.
We considered with this appeal two writs Keeler filed, and we will deny them by separate order. Keeler contends in writ no. D052626 that under Penal Code section 2900.5, he was entitled to 288 days of custody credits for time spent in an outpatient drug treatment program. Penal Code section 2900.5, subd (a) states: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment." Keeler has not provided documentary evidence to support his claim, and on that basis alone we can reject it. (People v. Duvall (1995) 9 Cal.4th 464, 474 [a writ petition should "include copies of reasonable available documentary evidence supporting the claim"]. At any rate, on the merits, Keeler was not entitled to custody credits under Penal Code section 2900.5 because he received treatment on an outpatient basis. "[I]n order for an inmate to get any custody credits under [Penal Code] section 2900.5 he must actually be in custody." (People v. Richter (2005) 128 Cal.App.4th 575, 579.) We reiterate that the trial court followed the probation report and awarded Keeler 26 days of custody credits.
In writ no. D052627, Keeler contends that, under Proposition 36, he did not receive the required residential drug treatment program after he failed the drug test and his probation was revoked. As explained above, the trial court ordered Keeler placed in a residential program. That was not done, in part, because at one point Keeler was not sober. At another point, the trial court attempted to accommodate Keeler, who was wearing a bracelet and living at home. Keeler was obligated at all times to comply with the terms of his probation. He failed to do so, notwithstanding the court's accommodations and encouragement.
Keeler contends the probation officer did not include sufficient mitigating factors for the court's consideration, and the probation report contained errors and omissions. We reject the contention. The probation report specifically acknowledged as a mitigating factor that, "The defendant voluntarily acknowledged wrongdoing at an early state of the criminal process." Moreover, the court reviewed Keeler's attorney's sentencing memorandum that stated, "The defendant has shown an ability to conduct himself as a law abiding citizen for a long period of time. He remained law abiding from release on parole in 2001 until his current lapse into substance abuse in 2006. During that time he and his wife have bought a home and own a business in Escondido, California."
Separately, Keeler, in a letter the court acknowledged reading, pleaded circumstances in mitigation as follows: "I'm in [and] have gone through stages of dark despair. I'm sure there is something wrong with me mentally. I hate myself for wasting the talents God given [sic] me, all the trouble I'm causing my family and others. Drug addiction is an illness can't [sic] be cured." Keeler pleaded with the court "not to look at the positive test I gave as a punishment tool, but as a level of treatment that I need to travel down a road to recovery." Keeler claims the probation report omitted information regarding a February 2007 traffic accident in which his son was driving; his daughter-in-law died, and his grandchild suffered serious injuries, and Keeler's claim that the stress of the traffic accident caused his drug use relapse. Keeler has not demonstrated he informed the probation department of that traffic accident, or that he was prevented from raising this matter at sentencing or in the letter he sent the court. At any rate, we conclude the trial court was aware of Keeler's battles with addiction, and it was not reasonably probable that the trial court would have ruled differently if the probation report had included information regarding the traffic accident.
We have reviewed all other issues raised in the writ petition, including Keeler's claims he received ineffective assistance of counsel, and conclude they lack merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.