Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF3266, Richard W. Stanford, Jr., Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Ferin Lee Kidd of second degree robbery and found true allegations he was armed with a firearm and had suffered two prior strike convictions. The trial court struck one of the prior convictions and sentenced defendant to 11 years in state prison, consisting of double the upper term of five years for robbery, plus a consecutive one-year term for the firearm enhancement. Defendant appeals, contending the court erred in denying his request for a continuance to retain private counsel, admitting prior statements his mother made to the police, instructing the jury, and using his prior juvenile strike to double his sentence. We find no error and affirm.
Given the issues raised, we need not recite the facts that led up to defendant’s arrest and conviction and shall include the facts relevant to each of his contentions in our discussion of the issues.
DISCUSSION
1. Right to Counsel
On the first day of trial, defendant requested a continuance to obtain private counsel. His request was denied. Defendant argues the denial violated his right to choice of counsel under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. We disagree.
Trial courts must ‘“make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his [or her] own choosing can be represented by that attorney.’ [Citation.]” (People v. Courts (1985) 37 Cal.3d 784, 790.) But the right to a continuance to retain such counsel may be denied if the defendant has been “‘unjustifiably dilatory’” or has arbitrarily waited until the time of trial to make the request. (Id. at pp. 790-791.) We review a trial court’s denial of a continuance to retain new counsel for abuse of discretion. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) Defendant has the burden of demonstrating the denial of such a motion was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Conflict attorney Christian Jensen was appointed to represent defendant in mid-September 2006 when the district attorney filed the felony complaint. With defendant present, Jensen represented defendant at the preliminary hearing 11 days later and at the arraignment early the next month. In January 2007, defendant appeared in court again with Jensen representing him; at that time a jury trial was set for February 5.
On the date set for trial, with defendant and Jensen present, defendant waived statutory time for jury trial and then again on the continued date. On March 26, defendant was in court when Jensen and the prosecution answered ready for trial. But the trial was trailed to early April because the assigned department was engaged in another trial.
Trial commenced on April 2, with the parties conferring in chambers off the record in the morning and arguing pretrial motions that afternoon. During the latter, before prospective jurors arrived, defendant asked if he could “waive time” because there was a witness Jensen had not yet had the opportunity to investigate. Jensen said his investigator spoke to the man who had identified defendant in a photograph last week and that the prosecution had been unable to find another man who had picked defendant out of a six-pack, which Jensen believed benefitted defendant. The court told defendant he did not have the right to waive the time because “[t]oday is the day for trial. The case has been trailing around for a week. Today is day seven of the ten days that the prosecutor has to bring your matter to trial. They’re ready. We have an available court . . . .”
Defendant then indicated he believed Jensen was ineffective for advising him to testify in his defense because Jensen would not have sufficient time to prepare him for cross-examination. He requested a waiver of time to seek further legal representation and allow that attorney the opportunity to prepare for trial. When asked “What other legal representation are you going to be getting,” defendant responded, “My mother has an attorney who she would like to consult prior to any further motion.” But he was “not exactly sure where the attorney [was] located . . .” and had “absolutely no idea [what his name was].” The trial judge stated, “Well, I can’t continue the case. I mean, it would be one thing if you had a lawyer standing here right now that said he was willing to come in on the case but I can’t continue the case on the theory that maybe somebody in your family might hire a different lawyer. [¶] This is day seven of ten. It’s been trailing for trial readiness and this is the first I have heard of it so I can’t do anything about it . . . and nothing that you have told me convinces me that counsel that is representing you is not adequately representing you . . . .”
The trial court did not abuse its discretion in denying defendant’s request. The record shows he had been represented by appointed counsel for over six months before he asked for the continuance. The request came on the first day of trial and defendant presented no reasons for the late request. Nor did he make any showing he was financially able to retain private counsel.
On appeal, he argues he was not “‘unjustifiably dilatory’” waiting until the day of trial because he acted “at the earliest possible time after realizing that his appointed attorney was not adequately prepared for trial.” But he has not shown that was “the earliest possible time” or that Jensen was not prepared. Although he was present when Jensen answered ready for trial on March 26, 2007, defendant mentioned nothing about wanting to hire private counsel. The case then trailed for a week. On the date set for trial, April 2, Jensen said he was ready for trial, had investigated one witness defendant was concerned about, and that the prosecution could not locate another witness, which benefitted defendant. As for advising defendant to take the stand, defendant has not explained how that demonstrates Jensen was unprepared or otherwise unable to adequately represent him. Under these circumstances, there appears to be no justification for defendant’s delay until the start of trial to make his motion.
The cases cited by defendant are inapposite. Defendant acknowledges that in Chandler v. Fretag (1954) 348 U.S. 3, 4-10 [75 S.Ct. 1, 99 L.Ed 4] and People v. Byoune (1966) 65 Cal.2d 345, 346, new and more serious charges were added shortly before the trial began. That did not happen here. And unlike in People v. Crovedi (1966) 65 Cal.2d 199 and People v. Gzikowski (1982) 32 Cal.3d 580, Jensen neither had a heart attack nor withdrew from representation, defendant was not forced to proceed to trial with less experienced counsel, and it was speculative when or if his counsel of choice would be retained.
2. Admissibility of Mother’s Statements
Defendant contends the court erred in admitting prior statements his mother, Julie Kidd, made to the police. We reject the contention because the record provides a reasonable basis to conclude Kidd was being evasive.
Kidd testified that in August 2006 police officers showed her a surveillance videotape of a robbery on June 9, 2006. She remembered certain things, such as being shocked at seeing the video, telling the officers she recognized the walk of the person in dark clothes, that the person had on a Bob Marley t-shirt, and that all of her children had Bob Marley t-shirts. But she could not recall pointing to the person in the dark clothes and saying, “That son of a bitch, that’s Ferin[,]” telling the officers the person’s walk was one defendant did by pointing his toes out and doing a little dip, or stating that defendant had a ponytail like the person in dark clothes.
With regard to a surveillance videotape from July 17, 2006, Kidd testified she did not recognize the person in the video or recall telling the officers she did. She remembered being asked if she recognized the shoes and saying, “Yeah, they’re Wallabee[]s. That’s what I wore in junior high.” She also recalled saying the person had a similar build to her son and thinking she could not believe that that was her son. But she did not remember telling the officers she recognized the person because of his walk, mannerisms, and shoes, or exclaiming, “O[h] my fucking God, that’s Ferin.” On cross-examination, she also denied saying the shoes were defendant’s or recognizing the person in the video.
Defense counsel sought to prevent the officers from testifying about their interview with Kidd, contending Kidd did not make any statements that were inconsistent and that her lack of memory was an honest inability to recollect, not an attempt to avoid answering questions. The trial court held Kidd’s prior statements were admissible because “based on her mannerisms and the way in which she answered the questions,” it believed she had “feigned loss of memory.”
Police officer Patrick Hornak testified he showed Kidd a videotape of the June 9 robbery. When the man in the dark clothes entered the store, Kidd exclaimed loudly, “That son of a bitch, that’s Ferin.” Hornak asked if she was sure and Kidd replied, “Absolutely,” because she recognized the way he walked, pointing his toes outward and dipping his shoulders. Kidd also said defendant had a Bob Marley t-shirt, which might be back at her apartment, similar to the one worn by the person in the videotape and that defendant had worn his hair in a ponytail at one time but had cut it short by the time she last saw him on June 23.
According to police officer Eric Grisotti, when the dark clothed person came through the front door of the store on the July 17 videotape, Kidd said, “Oh, my fucking god, that’s Ferin.” She told Grissoti she recognized his stride, his mannerisms, the way he squatted, the way he stood with his feet pointed slightly outward, and the Wallabee shoes he was wearing.
Although a witness’s testimony that she does not recall something is not inconsistent with her prior statement describing it, “‘[w]hen a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s “I don’t remember” statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 711.) Such is the case here.
In August 2006, Kidd made statements to the police emphatically identifying her son in the videotapes of the June 9 and July 17 robberies. Less than a year later at trial, she could not remember doing so, despite the fact she is defendant’s mother. She remembered being shocked and recognizing the walk of the person in the June 9 videotape as being “very similar” but not who the walk was similar to or why she was shocked. She also recalled saying the person in the July 17 videotape had a similar build to her son and thinking she could not believe that was her son but not that she recognized the person because of his walk, mannerisms, and shoes. The fact she is defendant’s mother also gave her a strong motive to deny her prior identification so he would not be convicted. The trial court, which had the benefit of observing Kidd’s demeanor, could find it improbable she did not recollect expressing her surprise at recognizing her son on the videotapes and specifically identifying him by his mannerisms, walk, and shoes.
The record provides a reasonable basis for finding Kidd’s statements were evasive. (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.) People v. Levesque (1995) 35 Cal.App.4th 530, 544, upon which defendant relies, is distinguishable because the court there found the witness was not being evasive.
We reject defendant’s related contention that admission of Kidd’s prior inconsistent statements violated his federal due process rights because her inability to recall identifying defendant from the surveillance videotapes prevented him from conducting an effective cross-examination. A defendant is not denied federal due process by the admission of a witness’s prior inconsistent statement if the witness testifies at trial and is available for cross-examination “unless the witness shows such ‘apparent lapse of memory,’ at the trial, as to affect the defendant’s cross-examination opportunities to the point that his Sixth Amendment right of confrontation is violated by admission of the prior inconsistent statement. [Citations.]” (People v. Petersen (1972) 23 Cal.App.3d 883, 891-892.) Here, Kidd was examined and cross-examined without limitation regarding her prior extrajudicial statements, and the jury was able to evaluate her demeanor as a witness. She remembered making most statements while professing a memory lapse only as to her identification of defendant. Further questioning might have jogged her memory and the fact the defense chose not to interrogate her further does not show she was unavailable for cross-examination.
Moreover, the Supreme Court in People v. Zapien (1993) 4 Cal.4th 929 rejected a similar argument, stating a witness’s denial of the prior statement “‘is more favorable to the cross-examiner than could be produced by eliciting an admission that the statement was made and an explanation of change of position . . . .’ [Citation.]” (Id. at 954.) “‘[D]efendant retains the opportunity to question the declarant as to the circumstances surrounding the prior statements and to elicit from the declarant an explanation for the inconsistencies in his prior statement and his on-the-stand testimony.’ [Citation]” (Id. at p. 955.) As the Attorney General notes, “if Kidd had truthfully testified she had so emphatically and unequivocally identified [defendant] as the perpetrator, then that testimony, coming from [defendant’s] own mother, would have carried more weight with the jury than the officers’ testimony in establishing [defendant’s] guilt.” We conclude admission of Kidd’s prior statements did not deny defendant’s of his due process rights.
3. Instructional Error
Defendant claims instructional error in the giving of Judicial Council of California Jury Instructions (2006-2007) CALCRIM Nos. 220 and 226, and the failure to give CALCRIM No. 333. We address each in turn.
a. CALCRIM Nos. 220 and 226
Defendant argues that instructing the jury with CALCRIM No. 220 violated his federal due process right to have his guilt determined beyond a reasonable doubt. Specifically, he asserts CALCRIM No. 220’s definition of reasonable doubt prevents the jury from considering whether a lack of evidence gave rise to a reasonable doubt. This argument has been repeatedly rejected on the ground that CALCRIM No. 220 makes it clear to the jury that absence of evidence may lead to reasonable doubt. (See, e.g., People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.) We agree with these cases.
As to CALCRIM No. 226, defendant contends it invites the jury to consider matters outside the record in violation of his constitutional rights to due process, a fair trial, and confrontation. According to him, the language “use your common sense and experience” is subjective and may cause the jury to “rely on extra-judicial evidence” and “employ a standard less than proof beyond a reasonable doubt since ‘common sense’ can be used as a substitute for objective (and substantial) evidence of guilt.” The court in People v. Campos, supra, 156 Cal.App.4th at pp. 1239-1240, rejected this argument as well. We adopt its reasoning.
b. CALCRIM No. 333
Defendant’s final claim of instructional error is that the court should have given CALCRIM No. 333, on lay opinion testimony, based on Kidd’s and another witness’s identification of him from the surveillance videotapes. We agree with the Attorney General that CALCRIM No. 333 was unnecessary because the jury was adequately instructed with CALCRIM No. 226.
CALCRIM No. 226 instructs the jury that it is the sole judge of the believability of the witness and the weight to be given the testimony. The instruction also informs the jury it “may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony,” including the witness’s abilities to recall and describe the events as well as “to see, hear, or otherwise perceive the things about which the witness testified,” the witness’s behavior and attitude along with any possible bias, plus the reasonableness of the testimony and whether it was proved or disproved by other evidence.
Similarly, CALCRIM No. 333 informs jurors that they “may but are not required to accept [the opinion by a lay witness] as true or correct . . . [and] may give the opinion[s] whatever weight [they] think appropriate.” In making this determination, the jury is to “[c]onsider the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion.” This portion of CALCRIM No. 333 is repetitive of CALCRIM No. 226 in that both refer to the believability of the witness and the extent of the witness’s opportunity to perceive the event testified to.
Defendant maintains CALCRIM No. 333’s last two sentences contain admonitions not found in CALCRIM No. 226, namely that jurors must decide “whether information on which the witness relied was true and accurate” and “may disregard all or any part of an opinion that [they] find unbelievable, unreasonable, or unsupported by the evidence.” (CALCRIM No. 333.) On the contrary, that is just another way of restating the jury’s obligation to determine the weight to be given to a witness’s testimony based on “anything that reasonably tends to prove or disprove the truth or accuracy of that testimony,” including the ability “to see, hear, or otherwise perceive the things about which the witness testified.” (CALCRIM No. 226.) If the jury did not believe Kidd or the other witness, CALCRIM No. 226 provided it with sufficient guidance to disregard or give little weight to their testimony. For that reason, even if CALCRIM No. 333 should have been given, there was no prejudice to defendant.
4. Use of Defendant’s Prior Juvenile Strike
Defendant contends the use of his juvenile prior to double his sentence violated his due process and jury rights under the Fifth, Sixth, and Fourteenth Amendments. He forfeited this claim because he failed to raise it when he was sentenced. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103, disapproved on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) Even if defendant had not forfeited his claim, it fails on the merits.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435], the Supreme Court held, “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Ninth Circuit has since limited the Apprendi prior conviction exception to exclude juvenile adjudications that “do not afford the right to a jury trial and a beyond-a-reasonable doubt burden of proof . . . .” (U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194.) California courts have rejected Tighe and held there is no impediment to using juvenile adjudications to increase a defendant’s sentence following an adult conviction. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830; People v. Lee (2003) 111 Cal.App.4th 1310, 1315-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Bowden (2002) 102 Cal.App.4th 387, 391.)
Allowing a juvenile adjudication to be treated as a strike does not violate any fundamental principle of justice. Although a juvenile is not entitled to a jury trial, procedural safeguards render a juvenile adjudication reliable, including the right to notice, the right to counsel, the right to confront and cross-examine witnesses, the privilege against self-incrimination and, importantly, a standard of proof beyond a reasonable doubt. (See Welf. & Inst. Code, §§ 658, 679, 702.5; In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) The Three Strikes law gave defendant both fair warning his juvenile adjudication could be treated as a strike and the rights to jury trial and proof beyond a reasonable doubt on proof of the strike allegation. We conclude the court properly enhanced defendant’s conviction by using his prior juvenile adjudication.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.