Opinion
C082443
11-21-2017
In re K.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.P., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJCJVDE20160000339)
Appellant, K.P., was the subject of a wardship petition under Welfare and Institutions Code section 602 for hitting his neighbor with a baseball bat during a heated confrontation. (Welf. & Inst. Code, § 602, subd. (a).) Shortly before the jurisdictional hearing, K.P. and his mother requested a continuance in order to hire private counsel and also requested a Marsden hearing to relieve his appointed counsel. The court denied the Marsden motion and the continuance. Following a contested jurisdictional hearing, the court sustained the petition finding K.P. committed an assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The juvenile court adjudged K.P. a ward of the court and committed him to probation with a juvenile hall term of 90 days, with 60 days suspended pending successful completion of the Reconnect Program. Among other terms and conditions, the court ordered K.P. to have no contact with the neighbor he assaulted.
People v. Marsden (1970) 2 Cal.3d 118.
On appeal K.P. contends the juvenile court (1) violated his Sixth Amendment right to counsel by denying his request for a continuance in order to hire private counsel, (2) abused its discretion in denying his Marsden motion because his appointed counsel never gave him a copy of the police report, which he contends substantially impaired his ability to effectively communicate with counsel, and (3) erred in imposing the no contact probation condition because the restriction did not contain an express element of scienter. We conclude the court did not err in denying the continuance or the Marsden motion. We also find that because a knowledge requirement is necessarily implied in the no contact order, an express limitation is unnecessary. We therefore affirm the dispositional order.
FACTS AND PROCEEDINGS
In 2015 Michael Keever and his wife Althea Keever lived in Stockton a few houses down from K.P. and his mother, Ki.S. At the time, Anuit Albahar, the Keevers' niece, lived with them. At the beginning of October 2015, the Keevers kicked Albahar out of the house because she had failed to pay rent, was using drugs, and was engaging in prostitution from the home. When Albahar moved out, she left several personal items behind.
To avoid confusion, Michael and Althea are referred to by their first names.
Two weeks later, on the night of October 14, the Keevers put Albahar's left-behind items on the curb to be picked up with the trash. In the early morning hours of October 15, Michael left his house to go to the store. As he was backing his car down the driveway, he saw several people, including his niece, picking through the trash pile on the curb. Michael got out of his car and confronted Albahar, telling her to leave. Albahar told him she was getting her stuff.
At the time, Albahar had K.P. and his two brothers with her. Michael originally testified that he yelled at Albahar outside his house while K.P. and his brothers carried boxes to their nearby home. He later said he was unsure whether K.P. stayed behind with Albahar while the other two boys took items to their house.
Officer Jorge Andrade, Michael, and Althea all testified that the boys were K.P.'s siblings. Albahar, however, testified that one of the boys was K.P.'s brother and the other was an unidentified friend.
The brothers, according to Michael, eventually returned with baseball bats. All three boys then approached Michael and he felt threatened. Althea, who had come out of the house upon hearing the commotion, testified that she saw the boys advancing on her husband, backing him into a corner. K.P. got into Michael's face, calling him a "nigga" and yelling that he was getting "[his] stuff." K.P. was so close to Michael that he could feel K.P.'s saliva hit his face as K.P. called him derogatory names. The other two boys were also yelling and cussing at Michael.
Michael grabbed a pickax handle from the nearby trash pile to defend himself. K.P. then shoved him and tried to grab the ax handle. When K.P. grabbed the handle, Michael lost his grip and the handle hit K.P. in the forehead. After struggling with K.P. for a couple of minutes, Michael was able to regain control of the ax handle. K.P. then grabbed a baseball bat from his brother and swung it several times at Michael. Michael tried to dodge the bat, but was eventually hit in the ankle. Michael then struck K.P. in the back of the leg with the ax handle.
Ki.S., K.P.'s mother, arrived at the house a short time later and began swinging an aluminum baseball bat while screaming and cussing. Althea grabbed a meat hook and a bed spindle to defend herself.
Ki.S. told the Keevers that they had no right to Albahar's stuff. When Althea told Ki.S. to mind her own business because she did not know what was going on, Ki.S. grabbed Althea by the arms to restrain her. Althea eventually broke free and screamed for someone to call 911. During the commotion, Albahar used her cell phone to record a video of the events.
Several neighbors reported the disturbance at the Keevers' home and Officer Jorge Andrade of the Stockton Police Department responded to the call. Upon arriving at the scene, Officer Andrade ordered the people to drop their weapons, and everyone complied. He was able to interview K.P., Michael, Althea, and Albahar. Although he attempted to speak with Ki.S., she was very uncooperative.
Michael reported that he had grabbed a stick because he was outnumbered and was being surrounded by K.P. and his brothers. He also said that when K.P. had tried to grab the stick from him, it hit K.P. in the head. Michael told Officer Andrade that after K.P. swung a bat at him and struck him in the ankle, he responded by hitting K.P. on the back of the leg with the stick. Officer Andrade observed injuries to Michael's ankle.
Albahar told Officer Andrade that she had no idea K.P. or his mother would return to the Keevers' house with baseball bats. She did not tell him that Althea chased her with a meat hook, or that the Keevers were the aggressors.
After being read his Miranda rights, K.P. told Officer Andrade that he was helping Albahar carry her stuff when Michael came outside upset. Michael grabbed a stick and hit him on the head and on his leg. He went home and told his mother what happened, and then grabbed bats and returned to the Keevers' house. Officer Andrade saw a mark on the back of K.P.'s leg, but did not observe any injury to his forehead.
Miranda v. Arizona (1966) 384 U.S. 436 . --------
Officer Andrade also reviewed a portion of the video on Albahar's cell phone. According to him, the video showed K.P. and his brothers holding sticks in their hands and Michael standing in his driveway. The three boys were exhorting Michael to fight. In Officer Andrade's opinion, K.P. and his brothers appeared to be the aggressors in the video.
Albahar testified on K.P.'s behalf. Her version of the events at trial was different than she had reported to Officer Andrade the night of the incident. She described Michael and Althea as the aggressors during the confrontation. According to her, she had received a phone message stating that her belongings were in the gutter, and that if she did not get them, they would be picked up the next day during the garbage collection. She asked K.P., his younger brother, and their unidentified friend to help her gather her belongings, which she intended to store in K.P.'s mother's garage.
While they were collecting her stuff, Michael drove out of his garage. He got out of the car and yelled at her and the boys. He told her not to touch the stuff on the curb because it was trash. She responded that she was only retrieving her personal belongings like she had been instructed to do. Althea then came outside carrying a meat hook. She claimed Althea chased her down the street with the hook while she called 911.
Albahar testified that Michael and Althea were screaming and taunting them, and that Michael was swinging a stick at them; Michael used the stick to destroy her property. Michael also hit K.P. in the head with the stick. K.P., she said, was not armed with any type of weapon, and she denied that there was a physical altercation between Michael and K.P. According to her, K.P. never pushed, hit, or struck anything. Although she admitted K.P.'s brother and friend had baseball bats, Albahar said K.P. did not have one.
Based on the incident, a juvenile wardship petition was filed on February 3, 2016, alleging K.P. committed a misdemeanor assault with a deadly weapon against Michael. At the first court appearance three weeks later on February 25, Deputy Public Defender Damon Williams was appointed to represent K.P. K.P. and his mother both attended the hearing. At the hearing, the court advised K.P. of his right to hire private counsel. K.P. was not detained, but was instead released to his mother's care.
The next appearance occurred on March 11. Williams represented K.P. Both K.P. and his mother attended the hearing. The court set a contested jurisdictional hearing on April 12, and a confirmation appearance on April 5.
Around March 15, approximately two weeks before the April 5 confirmation hearing, Deputy Public Defender Lisa Smith replaced Williams. At the confirmation hearing, Smith confirmed she would be ready for the April 12 contested jurisdictional hearing. During the proceedings, K.P.'s mother addressed the court stating, "Okay. So I have a question. If I need a little more time so I can get him a private attorney, how can I do that?" The court responded, "It's kind of late to do that." The court reassured her that they were in "good hands" with Smith. After the proceedings, Smith also said it was likely too late for private counsel to take over because the hearing was only one week away.
On April 12, the date set for the jurisdictional hearing, Smith appeared on K.P.'s behalf. At the beginning of the hearing, K.P. informed her that he wanted a Marsden hearing in order to replace her as counsel. The court cleared the courtroom and held an in camera Marsden hearing. During the closed hearing, K.P. explained that he really wanted to hire his own attorney and that he needed "about a week" to do so. He did not disclose any steps he had taken to hire private counsel. He also complained Smith had no witnesses to testify on his behalf and that he had not seen any discovery.
Smith responded that she had reviewed all the discovery and had reviewed portions of it with K.P. She acknowledged that she had not given him the police report, but said she had made a tactical decision not to spend her time redacting the police report so it could be released directly to him and instead spent her time preparing for the hearing. She said she had the discovery ready for K.P. to review at the hearing. Although she described the difficulties in interviewing some of the minor participants, she informed the court that she had a witness, Albahar, ready to testify on his behalf.
Smith also said her investigator had contacted K.P.'s mother since she was present that night and had most of the information, but that she did not provide any information to the investigator nor did she allow the investigator to interview K.P. Smith affirmed that she was ready to proceed with the jurisdictional hearing.
The court found that K.P. had had at least since February 25, the first courtroom appearance, to hire private counsel. The court denied the Marsden motion, finding K.P. had failed to carry his burden and that Smith had done everything in her power to get ready for trial.
When the proceedings resumed in open court, K.P.'s mother again objected that she wanted to get her son different representation because they had asked for but not received any discovery. Ki.S. did acknowledge, however, that Smith had reviewed a portion of the police report with her son. She complained that she had given the public defender the names and numbers of witnesses, but that none of them were subpoenaed for the hearing. The court responded that Ki.S. had had nearly two months to hire private counsel for K.P., and that she had not done so. The court explained that they were ready to proceed with the trial.
The contested jurisdictional hearing proceeded as scheduled, but was recessed and continued for three weeks until May 5. The court explained that during the interim, Ki.S. could locate any additional witnesses she thought would benefit her son. Neither K.P. nor Ki.S. made any further requests to obtain private counsel or to continue the hearing.
After completing the jurisdictional hearing, the court sustained the petition and found beyond a reasonable doubt that K.P. had assaulted Michael with a deadly weapon, the bat. At the dispositional hearing, the court adjudged K.P. a ward of the court and committed him to probation and a juvenile hall term of 90 days with 60 days suspended pending successful completion of the Reconnect Program. Among other terms and conditions of probation, the court ordered K.P. to have no contact with Michael. K.P. timely filed a notice of appeal.
DISCUSSION
I
Denial of Motion for Continuance
Defendant contends the trial court erroneously denied two oral motions to continue, one asserted by his mother a week before the jurisdictional hearing and the other asserted by him the day of the jurisdictional hearing during his Marsden hearing. The purported denial of his right to retain private counsel of his choice, he contends, violated his Sixth Amendment right to counsel. We disagree.
"The Sixth Amendment provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.' " (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 [165 L.Ed.2d 409, 416].) "The right to 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); Gonzalez-Lopez, at p. 144 [recognizing that "an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him"].) This right extends to juvenile delinquency proceedings. (In re Gault (1967) 387 U.S. 1, 41 [18 L.Ed.2d 527, 553-554]; In re Ricky H. (1970) 2 Cal.3d 513, 523.) " 'A necessary corollary [of the right] is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.' " (Courts, supra, at p. 790.)
The right of a defendant to appear and defend with retained counsel of his own choice, however, is not absolute. (People v. Blake (1980) 105 Cal.App.3d 619, 623 (Blake).) "[A] defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial." (Id. at pp. 623-624.) The defendant's right " '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.' " (Id. at p. 624.)
A court's decision to deny a request for a continuance in order to seek private counsel is reviewed for abuse of discretion. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367 (Pigage); Blake, supra, 105 Cal.App.3d at p. 624 ["it is within the sound discretion of the trial court to determine whether a defendant shall be granted a continuance to obtain private counsel"].) "[T]here is no mechanical test for deciding whether a denial of a continuance is so arbitrary as to violate due process but rather each case must be decided on its own facts." (Blake, at p. 624.) Defendant bears the burden of showing an abuse of discretion; in the absence of such a showing, we will not disturb the trial court's ruling on appeal. (Ibid.)
Applying the foregoing principles, the trial court's denial of a continuance on the eve of the jurisdictional hearing to retain private counsel cannot be deemed an abuse of discretion. The record on appeal shows that K.P. and his mother were given a reasonable opportunity to obtain counsel of his own choice prior to the jurisdictional hearing but simply failed to do so.
K.P. was expressly advised at the initial court appearance on February 25 that he had the right to retain his own counsel. Although K.P. was immediately released to his mother's care and had the opportunity to personally hire his own attorney in the nearly two months before the jurisdictional hearing, he did not. In Blake, the court upheld the denial of the defendant's motion for a continuance to hire private counsel because the record showed the defendant was on bail for a period of time prior to commencement of trial and failed to personally hire his own attorney until the second day of trial. (Blake, supra, 105 Cal.App.3d at p. 624.) The circumstances here are similar.
The record, moreover, is entirely devoid of any evidence showing either K.P. or his mother made any effort whatsoever to secure private counsel in the time period before the jurisdictional hearing. The denial of a motion for a continuance is justified where the defendant has taken no steps to hire counsel but instead merely seeks a belated opportunity to retain counsel. In Pigage, supra, 112 Cal.App.4th at page 1368, for example, the trial court properly denied a motion for a continuance where there was no evidence the defendant attempted to retain counsel, or had even taken steps to secure funds to hire private counsel prior to the requested continuance. As in Pigage, there is no evidence here that K.P. or his mother engaged in a good faith, diligent effort to obtain private counsel. (Cf. People v. Butcher (1969) 275 Cal.App.2d 63, 65-66, 68 [court erred in denying a motion for a continuance where the defendant had actually hired a private attorney and requested to substitute the attorney for the public defender]; Courts, supra, 37 Cal.3d at p. 791 [trial court erred in denying motion for continuance where evidence showed two months before trial the defendant had contacted a private attorney to represent him, had attempted to raise the necessary retainer, had informed the court of his efforts nearly a week before trial, and the private attorney was willing to represent the defendant].)
Under the circumstances presented here, we conclude K.P. was unjustifiably dilatory in obtaining private counsel. His arguments to the contrary are not persuasive. Although he contends he requested a continuance to hire private counsel at the first available opportunity—when Deputy Public Defender Smith first appeared on his behalf at the April 5 confirmation hearing—the record shows otherwise. K.P. knew he had the right to hire his own counsel as early as February 25. Smith, moreover, took over the case on or about March 15—nearly three weeks before the trial confirmation hearing. At no time during that period did K.P. request a continuance or take steps to hire private counsel.
Given our conclusion that the court did not abuse its discretion in denying the motions for a continuance to hire private counsel, we need not address the People's additional argument that defendant's motions were procedurally improper under the juvenile court rules because they were not made in writing two days before the jurisdictional hearing. (Cal. Rules of Court, rules 5.774 & 5.776.)
II
Marsden Motion
Defendant contends the trial court abused its discretion in denying his Marsden motion the day of the jurisdictional hearing. In his view, because Deputy Public Defender Smith did not fully review the police report with him prior to the jurisdictional hearing, he never received information necessary to adequately communicate with his attorney. We disagree.
The legal principles governing a Marsden motion are well settled. " ' "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance." ' " (People v. Hart (1999) 20 Cal.4th 546, 603 (Hart).) A defendant " ' "is entitled to 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]." ' " (People v. Lara (2001) 86 Cal.App.4th 139, 150.) " '[W]e review a trial court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard.' " (Pigage, supra, 112 Cal.App.4th at p. 1367.)
No abuse of discretion is apparent here. At the Marsden hearing, the court provided K.P. with an opportunity to set forth his complaints regarding Smith's assistance. K.P. first stated that he would rather have his "own attorney," and that he wanted his attorney to "have more evidence." He objected that he had "no witnesses here from the situation," and noted, by contrast, that the Keevers were prepared to testify for the prosecution. He also complained that he had not seen any discovery.
The trial court invited Smith to comment on K.P.'s concerns. Regarding discovery, Smith explained that she had reviewed some discovery with K.P. and also had determined that other available discovery was not helpful to his defense and thus was unnecessary to review with him. Regarding the availability of witnesses, Smith explained her efforts to obtain witness statements, and the difficulties she experienced with K.P.'s mother. Smith confirmed that she was prepared to proceed with the jurisdictional hearing.
Smith had attempted to review the police report with K.P. on April 5. That same day, she also reviewed with K.P. and his mother the video evidence that Ki.S. had claimed at an earlier hearing exonerated her son. From this, we infer that the relationship between client and counsel was still functioning a week before trial.
While Smith confirmed that she had not provided K.P. with a copy of the police report at that time because it was not yet redacted, she explained that strategically she felt it was a better use of her time to get ready for the jurisdictional hearing, which was scheduled for April 12, rather than take time to redact the report. Counsel's tactical decision not to provide the police report based on her assessment of what was in K.P.'s best interest did not support granting the Marsden motion. (See, e.g., Hart, supra, 20 Cal.4th at pp. 602, 604 [failure to provide the defendant with copies of the police reports based on counsel's concern that another inmate might read them and testify falsely against the defendant was a tactical decision that did not compel the discharge of appointed counsel].)
Although K.P. claims that the absence of the police report hindered his ability to communicate with Smith, we see no reason why K.P. could not effectively convey the events to Smith since he was present the entire time. We also note that Smith had the redacted report available for K.P. to review and discuss at the jurisdictional hearing.
Smith also reasonably determined that several hours of police body camera footage that did not show the actual events would not aide K.P.'s defense. Her tactical decision to not show the footage to K.P., we believe, does not evidence a total breakdown of the attorney-client relationship. (People v. Crandell (1988) 46 Cal.3d 833, 859-860 [a disagreement concerning tactics is "insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship"].)
The defense investigator had made multiple attempts to contact witnesses. In large part, it appears defense counsel's efforts to obtain witness statements were thwarted by K.P.'s own mother who apparently refused to cooperate or give a statement. She also declined to make her son available for an interview, and she did not want to testify on his behalf.
Smith, moreover, did arrange for Albahar to testify on K.P.'s behalf. Albahar was a key witness as she was involved in the altercation with the Keevers and was present during the entire event. And, as the People point out, the universe of witnesses was essentially limited to the Keevers, Albahar, K.P., his brothers, his mother, and Officer Andrade. Michael and Althea Keever both testified as did Albahar and Officer Andrade. As noted above, K.P.'s mother did not want to testify, and she would not make her sons available to be interviewed and was thus unlikely to want them to testify.
Given the above, the court did not abuse its discretion in finding K.P. failed to sustain his burden on the Marsden motion. The evidence showed Smith had adequately prepared for the hearing and that no irreconcilable conflict existed with K.P. The trial court thus properly denied the motion.
III
Probation Condition
In his opening brief K.P. initially requested that we modify the probation condition that prohibits him from contacting Michael, claiming it was unconstitutionally overbroad because it does not contain an express scienter or knowledge element. Given our Supreme Court's recent decision in People v. Hall (2017) 2 Cal.5th 494, 497, which rejected a similar argument because California law already generally presumes that a violation of probation must be willful and that conditions barring association or possession should be construed to require knowledge, K.P. concedes that the condition as written is constitutional. We accept K.P.'s concession.
DISPOSITION
The dispositional order is affirmed.
RAYE, P. J. We concur: HULL, J. MAURO, J.