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People v. Lammers

California Court of Appeals, Sixth District
Sep 9, 2008
No. H032277 (Cal. Ct. App. Sep. 9, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ROBIN RINALDO LAMMERS, Defendant and Appellant. H032277 California Court of Appeal, Sixth District September 9, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. 132803

Premo, J.

A jury convicted defendant Robin Rinaldo Lammers of multiple counts of grand theft and related criminal violations of the Civil Code stemming from the marketing and sale of automobile-engine distributorships. The trial court sentenced defendant to seven years in prison. After an appeal and remand for resentencing, the trial court sentenced defendant to five years in prison, which involved the trial court’s reliance on aggravating facts so as to impose a three-year upper term and three consecutive eight-month sentences. On appeal, defendant contended that the trial court’s imposition of the upper term violated his state and federal constitutional rights to have his sentence based only on facts found by a jury. (Blakely v. Washington (2004) 542 U.S. 296.) In an opinion filed on January 11, 2007, we affirmed the judgment based upon the then controlling authority, People v. Black (2005) 35 Cal.4th 1238. We thereafter granted defendant’s petition for rehearing to consider the effect of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] [2007 U.S. LEXIS 1324]. We then reversed the judgment and remanded for resentencing. (People v. Lammers (April 3, 2007) H030091 [nonpub. opn.].) The trial court thereafter sentenced defendant to five years in prison, which involved the trial court’s reliance on aggravating facts so as to impose a three-year upper term and three consecutive eight-month sentences. On appeal, defendant contends that the trial court erred by (1) denying his motion to continue the resentencing hearing, and (2) failing to order a supplemental probation report, which together resulted in his receiving ineffective assistance of counsel. We affirm the judgment.

background

In our last opinion, we noted that the trial court had relied on several factors to impose the upper term--only one of which was a valid factor under Blakely and Cunningham (defendant’s recidivism)--and there were unspecified mitigating factors. We reversed because the record did not show how much weight the trial court gave to the valid factor and mitigating factors.

Before the resentencing hearing, defendant’s appellate attorney submitted a letter to the trial court informing that defendant had served his original seven-year sentence. The letter added that the successful appeal resulting in the five-year sentence had advanced defendant’s parole-release date from 2008 to 2006. It emphasized that defendant was already released from parole after having served more time than could lawfully be imposed at resentencing. It offered that defendant would stipulate to a two-year middle term resulting in a four-year sentence.

At the resentencing hearing, the trial court summarized the proceedings to that point as follows: “This is a case that was tried in 1990 and [defendant] was found guilty of the offenses charged in the information. He failed to appear for sentencing on November First, 1990, at which time . . . the Court issued a bench warrant for his arrest. He was arrested in 2002 and brought back to court in 2003, at which time he was sentenced. The case was appealed, and the Court of Appeal, as well as the Supreme Court, touched upon the matter several times. It had had issues to do with the lack of a court reporter’s transcript, also had issues to do with the Cunningham case, Black case, several other cases, and finally it was returned to this court the last time by the Sixth District Court of Appeals and it was set for hearing on June 29[, 2007]. [¶] As I recall, [defendant] was back east, in Chicago or some place working on something, and had asked that the matter be continued. It was continued to August 31. [Defendant] did not appear, but we received information through his appellate attorney that he was in Panama, that the immigration and naturalization service was not allowing his wife to come into the country. He asked for a continuance to this date. We continued it. As [defense counsel] has represented, he apparently is still in Panama, has also waived his presence. [¶] In view of that fact, the Court is ready to go forward with the sentencing and will do so at this time.”

The trial court indicated that it had considered the original probation report and was inclined to impose a five-year term as before.

Defense counsel then objected by informing that he was anticipating a two-year middle term rather than a three-year upper term. He stated: “I was obviously not here in 1990, I don’t have the original probation report, I don’t have much of anything of a file. I’m not familiar with the background of the case enough to make an argument as to whether or not this warrants an upper term or--upper term commitment as opposed to midterm. My request would be to put the matter over so that we can obtain that information. I understand the practical fact that [defendant] has served the upper term and is no longer in custody for that, but I’m just not in a position to make those arguments this morning and would request a continuance. I do think that gives me legal cause to be nonready at that point.” He added: “It’s my belief based on the representation made to me that was something discussed with [the prosecutor], in essence, what was to happen. Given that the Court is indicating other than that--as I said, I’m not in a position to address whether or not sufficient mitigators exist. The Court indicated it wants aggravated terms as it has additional reasons now for that. I lack information as to whether or not we would be in a position to agree or disagree with the Court, and we are requesting time to do that. [¶] This is a 1990 case. The Court can see I have no probation report, I have no police report, no transcripts. I basically have the opinion and that’s it, so I’m not in a position to make those arguments. I am requesting the Court [to] continue sentencing and allow us to get additional information or at least further research the issue, whether or not we’re in a position to oppose or argue to the contrary on the Court’s tentative ruling.”

The trial court denied defense counsel’s request as follows: “[Defense counsel] has asked for a further continuance of this matter. The Court is very familiar with the case, the Court tried this case back in 1990 and has followed the case ever since. I’m satisfied that a continuance would not be in the interests of justice in this case and that it would be appropriate to go forward with sentencing under the circumstances. [¶] The Court is also aware that [defendant] was previously convicted of two felonies prior to this case and he served a term in federal prison. He also had served misdemeanor convictions, and that would be the basis upon which the Court would impose the aggregate term.” In specifically sentencing defendant to the upper term, it reiterated: “[T]he Court is mindful that the defendant has prior convictions as an adult, as I mentioned earlier. He also served a prior prison term, which I mentioned earlier, in federal prison. Therefore, I’m going to find that the aggravating--there are no mitigating factors the Court has been able to determine; therefore, I will determine the aggravating factors outweigh the mitigating factors, and as to each count I’m going to impose the upper term of imprisonment.” And it repeated: “[T]he Court has again selected the upper term as the sentence, and the reason for the selection of the upper term is the defendant’s recidivism.”

discussion

Defendant contends that the trial court transgressed his rights to due process and effective assistance of counsel by denying his motion for a continuance in the face of defense counsel’s assertion that he was unprepared to argue against the upper term of imprisonment.

Penal Code section 1050 outlines the procedures governing continuances in criminal cases. Subdivision (a) of the statute includes general statements of principle, noting that excessive continuances have caused court congestion and created substantial hardships for victims, witnesses, and defendants. To minimize these problems, the Legislature determined that criminal cases “shall be set for trial and heard and determined at the earliest possible time.” (Pen. Code, § 1050, subd. (a).) The Legislature also recognized that “the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice.” (Ibid.) To this end, subdivision (e) of the statute states that “Continuances shall be granted only upon a showing of good cause.”

“The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” (People v. Sakarias (2000) 22 Cal.4th 596, 646.) “Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel.” (Morris v. Slappy (1983) 461 U.S. 1, 11.) Similarly, “it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. [Citation.] Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” (Ungar v. Sarafite (1964) 376 U.S. 575, 589.) “In determining whether a denial 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.” (People v. Frye (1998) 18 Cal.4th 894, 1013.) An important factor for the trial court to consider is whether a continuance would be useful. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) The court considers “ ‘ “not only the benefit which the moving party anticipates but also the likelihood that such benefit will result.” ’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) It is proper to grant a continuance to permit a defendant to investigate exculpatory evidence. (People v. Gatlin (1989) 209 Cal.App.3d 31, 40-41.) Conversely, the speculative nature of what is to be gained by a continuance justifies its denial. (Id. at pp. 41-42.)

Since the trial court’s call is a discretionary one (Morris v. Slappy, supra, 461 U.S. at p. 11; Ungar v. Sarafite, supra, 376 U.S. at p. 589; People v. Frye, supra, 18 Cal.4th at pp. 1012-1013), we apply a deferential standard of review and “ask[] in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 162; see People v. Giminez (1975) 14 Cal.3d 68, 72.) In this regard, “ ‘[t]he burden is on [the defendant] to establish an abuse of judicial discretion . . . .’ [Citation.] ‘[A]n order of denial is seldom successfully attacked.’ ” (People v. Beeler, supra, 9 Cal.4th at p. 1003.)

In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his motion for a continuance does not require reversal of a conviction. (People v. Samayoa (1997) 15 Cal.4th 795, 840.)

Here, it is not beyond reason to conclude that a continuance would not have been useful. First, the trial court had already twice continued the resentencing hearing. Second, the trial court was intimately familiar with the record having sentenced defendant twice. Third, our latest opinion simply directed the trial court to demonstrate how much weight it gave defendant’s recidivism and whether it predominated over any mitigating factors. Given that the trial court placed total reliance on defendant’s recidivism and declined to find or give weight to any mitigating factors, a continuance to allow defense counsel to investigate mitigating factors would necessarily have been a futile or, at best, speculative exercise. (See People v. Fontana (1982) 139 Cal.App.3d 326, 335 [“nothing in this opinion should be read as intimating that a mere representation of unpreparedness is sufficient to require the trial court to postpone probation revocations proceedings--or any other hearings or trials”].)

The analysis remains the same under the rubric of defendant’s related claim that the trial court erred by failing to order a supplemental probation report, albeit we frame the analysis as a lack of prejudice from supposed error.

Both Penal Code section 1203.2, subdivision (b), and California Rules of Court, rule 4.411(c), require ordering an updated probation report for sentencing proceedings that “ ‘occur a significant period of time after the original report was prepared.’ ” (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins).) The Dobbins court added: “The Advisory Committee Comment to the rule suggests that a period of more than six months may constitute a significant period of time, even if the defendant remains incarcerated and under the watchful eyes of correctional authorities.” (Id. at p. 181.) The Advisory Committee Comment to the rule also states that a new report is unnecessary only “if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances.” (Advisory Com. com., West’s Cal. Rules of Court (2006 ed.) foll. rule 4.411, p. 236.) The critical inquiry under the governing rule is whether there has been a change of circumstances necessitating a supplemental report; the amount of time since the last report is only significant to the extent it bears on that inquiry. (See, e.g., People v. Grimble (1987) 196 Cal.App.3d 1058, 1064 [although “six years had passed since the imposition of the original sentence . . . nothing that occurred during appellant’s interim prison incarceration was remotely likely to provide a mitigating circumstance such as to reduce appellant’s sentence below the maximum statutory amount”].)

Here, the resentencing hearing occurred in 2007 and the last probation report is from 2003. But, as we mention, there is no indication of changed circumstances of which the trial court was unaware. Thus, the trial court’s failure to consider a supplemental probation report may or may not have been error.

In Dobbins, the initial probation report was dated July 2003, shortly before the first sentencing hearing. The defendant had pleaded no contest after negotiating a 16-month lower term. The trial court suspended the sentence and granted probation. The defendant committed new offenses and, at a hearing in March 2004, the trial court ordered him to serve the 16-month sentence. The court concluded that the trial court had erred in not ordering a new probation report when the initial report was eight months old. Nevertheless, it found such error to be harmless in that “there is no doubt the result would have been the same if a supplemental probation report had been prepared.” (Dobbins, supra, 127 Cal.App.4th at p. 183.)

We reach the same conclusion here. The trial court was familiar with the record. It had tried the case and sentenced defendant twice. Nothing in the record indicates to us that a supplemental report would have contained any new, mitigating information. Defendant argues that a supplemental report would have revealed that he had served and successfully completed an excess prison term, served and successfully completed parole, and gone four years since the 2003 report without criminal activity. But these facts were known to the trial court. Defendant concedes as much. Stated another way, nothing in the record raises a reasonable probability that a supplemental probation report would have dissuaded the trial court from its conclusion that defendant’s recidivism justified the upper term. Even if couched under ineffective assistance of counsel, defendant’s claim fails for lack of prejudice. (People v. Avena (1996) 13 Cal.4th 394, 418.)

We realize that we can only speculate as to the contents of a supplemental report, but defendant’s burden is to establish prejudice, and nothing he has presented suggests the report would have included beneficial information that was unknown to the trial court. (See People v. McClellan (1993) 6 Cal.4th 367, 378.)

disposition

The judgment is affirmed.

WE CONCUR: Rushing, P.J., Bamattre-Manoukian, J.


Summaries of

People v. Lammers

California Court of Appeals, Sixth District
Sep 9, 2008
No. H032277 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Lammers

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBIN RINALDO LAMMERS, Defendant…

Court:California Court of Appeals, Sixth District

Date published: Sep 9, 2008

Citations

No. H032277 (Cal. Ct. App. Sep. 9, 2008)