Opinion
B232187
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO LAGUNAS, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA076975)
APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
Antonio Lagunas appeals the judgment entered following his plea of no contest to carjacking committed for the benefit of a criminal street gang in which he personally used a firearm. (Pen. Code, § 215, subd. (a)), 186.22, subd (b)(1)(B), 12022.53, subd (b).)
Subsequent unspecified statutory references are to the Penal Code.
Lagunas contends the trial court erroneously denied a pre-trial request to substitute one retained attorney for another. We reject this contention and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The underlying offense.
The evidence presented at the preliminary hearing and the report of the probation officer indicate that, on December 26, 2009, Analu Cabral and another female posing as a prostitute, lured Angel Valenzuela to a location where Lagunas approached Valenzuela's car, put a handgun to the back of Valenzuela's head and demanded money. Cabral removed the keys from the ignition and took money from Valenzuela's pockets. Lagunas removed Valenzuela from the car and the assailants drove off in Valenzuela's car.
2. The charges.
An information filed August 9, 2010, charged Lagunas with carjacking and robbery in which Lagunas personally used a firearm. (§§ 215, subd. (a), 211, 12022.53, subd (b).) The information alleged the carjacking had been committed for the benefit of a criminal street gang and that Lagunas had two prior felony convictions within the meaning of the Three Strikes Law.
3. Proceedings related to Lagunas's attempts to represent himself or substitute counsel.
After numerous continuances, on January 31, 2011, the trial court set the matter for a readiness hearing on February 18, 2011, and for trial on February 28, 2011. On February 18, 2011, the matter was continued to February 25, 2011, and all other dates were vacated. On February 25, 2011, the matter was continued for pretrial conference to February 28, 2011.
On February 28, 2011, Lagunas's retained attorney, William McKinney, and the prosecutor requested a trial date of March 8, 2011, as day 0 of 10. Lagunas then indicated he wished to represent himself. Lagunas said: "We've been doing this forever, man. You guys already want me to go to trial. I need the most time." During the trial court's ensuing conversation with Lagunas, the bailiff stated Lagunas had problems in custody for "violent acts toward deputies." Thus, Lagunas would likely have to be chained to his chair during trial and would have limited time in the law library. Lagunas indicated he preferred to proceed without an attorney and would "do [his] best" to be ready for trial on March 8, 2011. Cabral's attorney indicated Cabral would object if Lagunas represented himself, stating: "Just his looks and his actions prejudice my client." Lagunas said McKinney had not been effective and had not done anything on the case.
The trial court noted the Marsden standard (People v. Marsden (1970) 2 Cal.3d 118) did not apply to retained counsel. After questioning Lagunas about McKinney's representation in a closed hearing, the trial court noted Lagunas's behavior in court was disruptive and his language was profane. Further, the case involved a codefendant who might be prejudiced by Lagunas's conduct. When Lagunas asserted he had a right to fire McKinney, the trial court indicated that right was not absolute. The trial court denied Lagunas's request to proceed in propria persona but advised Lagunas he could hire another lawyer to replace McKinney if that lawyer could "be ready on time."
On March 8, 2011, Cabral's attorney and the prosecutor announced ready for trial. Lagunas was represented by McKinney, who was present. The parties set the case for trial on March 16, 2011, and agreed jurors would be ordered for March 17, 2011.
On March 16, 2011, Attorney Mike Zimbert appeared on behalf of Lagunas. McKinney was not present. Zimbert said he had "picked up the discovery" from McKinney and asked to substitute into the case. Zimbert indicated he had spoken to the prosecutor "about a six-week time. I'm going to try to resolve this before then, but the file is thick, and I just need some time to look at it, obviously. He is looking at life."
The trial court noted the case had been pending since "August of last year" and McKinney had represented Lagunas from the outset. Zimbert responded he could "get ready within six weeks, anyway. And with a People's reasonable continuance, obviously, I was thinking [of] making a six-week date as zero of 30, if that's agreeable." The trial court noted 65 jurors already had been ordered for the next morning, the case previously had been the subject of a "long discussion" regarding Lagunas representing himself and the trial court had denied that request because Lagunas required a continuance. At the time of that ruling, the trial court advised Lagunas it would permit substitution of counsel if the new attorney were prepared to start trial. The trial court indicated the case "has been continued numerous times."
The trial court denied the request to substitute counsel "[b]ecause it would require a continuance," the case had been pending for a substantial amount of time, the matter thoroughly had been discussed previously, and "McKinney is still counsel of record and he said that he is ready to start."
At that point, the prosecutor offered that the People would not object to a continuance to avoid any appellate issues that might arise after a jury trial. The trial court responded, "We've been through this with respect to Mr. McKinney and there's nothing that would indicate to the court that Mr. McKinney should be taken off the case." The trial court again denied Lagunas's request to substitute counsel and noted the case was trailing as day 8 of 10.
The next day, March 17, 2011, McKinney appeared in court, declared a conflict and was relieved. Attorney Lori Ann Jones, who had previously appeared with Lagunas, was present in court and indicated she could be ready the following week. The trial court set the case for trial on March 23, 2011, as day 8 of 10, and ordered a panel of prospective jurors.
The prosecutor asked the trial court to ascertain whether Lagunas agreed with the declaration of a conflict and appointment of Jones. Lagunas indicated Zimbert no longer "want[ed] to be appointed," and Jones was more familiar with the case than any other attorney. Jones indicated Lagunas was "indigent at this point" and Lagunas confirmed that representation.
The trial court stated again for the record why Lagunas's request to represent himself had been denied and asked Lagunas if he agreed to the replacement of McKinney with Jones. Lagunas responded, "Yes sir."
4. Lagunas pleads no contest and thereafter appeals.
On March 21, 2011, the trial court indicated the parties had agreed on a resolution of the case that avoided a life term. Lagunas thereafter plead no contest as indicated above and admitted two prior conviction allegations. The court struck one of the prior convictions and sentenced Lagunas to a determinate term of 25 years in state prison.
Lagunas appealed and obtained a certificate of probable cause. (§ 1237.5.)
DISCUSSION
1. Lagunas's arguments.
Lagunas contends the trial court unreasonably interfered with his Sixth Amendment right to retained counsel of his choice by refusing to allow the substitution of Zimbert for McKinney. (See United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 .) The erroneous denial of this right is reversible per se (id. at p. 150; People v. Ortiz (1990) 51 Cal.3d 975, 988) and survives a guilty plea (People v. Turner (1985) 171 Cal.App.3d 116, 127).
Lagunas argues the People did not object to a continuance and the trial court essentially invited Lagunas to hire new counsel when it denied the motion for self-representation. Thus, the request to relieve McKinney was not unexpected and was not a delay tactic. However, when Lagunas appeared with newly retained counsel 16 days later, the trial court denied the request, even though Zimbert hoped to resolve the matter, because Zimbert requested a six-week continuance. The next day, the trial court relieved McKinney and appointed a lawyer who said she could be ready the following week.
The next time Lagunas appeared in court with appointed counsel, Lagunas plead no contest and received a prison sentence of 25 years. Thus, the expeditious resolution sought by the trial court came at the expense of Lagunas's right to counsel of his choosing. (See People v. Crovedi (1966) 65 Cal.2d 199, 207 ["myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality"].)
Lagunas also claims the trial court's statement it saw no reason to relieve McKinney indicates the trial court mistakenly believed Lagunas needed to show good cause to fire retained counsel. (See People v. Hernandez (2006) 139 Cal.App.4th 101, 107-108 [defendant may discharge retained counsel without cause].)
Lagunas concludes the trial court should have allowed the uncontested substitution and granted a six-week continuance. He asks this Court to reverse his conviction and remand the matter to permit him an opportunity to withdraw his plea.
2. The trial court properly exercised its discretion in denying Lagunas's request for substitution of counsel.
A non-indigent criminal defendant has a due process right to discharge retained counsel at any time, with or without cause. (People v. Ortiz, supra, 51 Cal.3d at p. 983.) However, a trial court may deny the request where it would significantly prejudice the defendant or if it is untimely and would result in an unreasonable " 'disruption of the orderly processes of justice . . . .' " (Ibid.)
Here, the trial court did not abuse its discretion in denying Lagunas's request. The trial court reasonably found the request untimely, having been made at the time set for trial. (See People v. Keshishian (2008) 162 Cal.App.4th 425, 429 [request to discharge retained counsel made on day set for trial properly ruled untimely]; People v. Hernandez, supra, 139 Cal.App.4th at p. 109; People v. Turner (1992) 7 Cal.App.4th 913, 919; People v. Lau (1986) 177 Cal.App.3d 473, 479.)
The case had been pending in the trial court for an extended period of time, the prosecutor and Cabral's attorney were ready to proceed on March 8, 2011, and the trial court previously advised Lagunas that a request to substitute counsel would be granted only if new counsel were prepared to proceed to trial. The trial court reasonably could conclude six weeks of additional delay before the case even began to trail for trial amounted to an unacceptable disruption of the proceedings. (People v. Ortiz, supra, 51 Cal.3d at p. 983.)
In light of the disruption and substantial delay that would flow from the substitution, and the timing of Lagunas's request on the day of trial, the trial court acted within its discretion in denying the request for substitution of retained counsel. The prosecutor's indication the People would not oppose the request for a continuance does not alter the result.
Finally, the record does not support Lagunas's claim the trial court mistakenly believed Lagunas had to show good cause in order to discharge retained counsel. Before inquiring of Lagunas in the closed hearing of February 28, 2011, the trial court specifically observed the Marsden standard (People v. Marsden, supra, 2 Cal.3d 118) for court appointed counsel did not apply to retained counsel. Thus, the trial court's statement regarding McKinney's performance was not offered as a basis for the denial of the request but only as an indication that, in addition to the untimeliness of the request and the disruption the request would cause in terms of necessitating a continuance, there was no indication McKinney was providing ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
CROSKEY, J.
KITCHING, J.