Opinion
2d Crim. No. B228305 Super. Ct. No. 1330570
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. ADALBERTO JIMENEZ LAZCANO, Defendant and Appellant.
David A. Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Idan Ivri, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Santa Barbara County
Adalberto Jimenez Lazcano appeals the judgment following a plea of no contest to six counts of committing lewd acts upon a child. (Pen. Code, § 288, subd. (a).) He was sentenced to 18 years in state prison, consisting of the eight-year upper term on the first count and five consecutive two-year terms (one-third of the middle term) for the other counts. In addition to the above offenses, Lazcano had been charged with four counts of sexual acts upon a child under 10 years of age by a person 18 years of age or older, and faced two 25 years to life and two 15 years to life prison terms if convicted of those offenses. (§ 288.7, subds. (a) & (b).) Those charges were dismissed as part of his plea agreement.
All statutory references are to the Penal Code.
On the day set for sentencing, Lazcano appeared with his appointed counsel and, for the first time, two attorneys he had retained to represent him at sentencing. The trial court granted their motion for substitution but denied their request for a continuance.
Lazcano obtained a certificate of probable cause and filed a timely notice of appeal. He contends that the trial court's refusal to grant a continuance violated his right to be represented by counsel of his choice and resulted in ineffective assistance of counsel. We conclude that, there was no abuse of discretion in denying a continuance because the plea bargain provided for a substantially shorter sentence than the maximum, and there is no claim of any deficiency in appointed counsel's performance to suggest any reason to delay sentencing. We affirm.
FACTS
Lazcano was romantically involved with the mother of a nine-year-old boy. Between May and September 2008, he committed multiple sexual acts upon the minor. The abuse occurred at a YMCA and the minor's home and consisted of oral copulation, sodomy and other sexual touching.
The facts are derived from the plea agreement and the probation department's presentence report.
In February 2010, Lazcano was charged with three counts of lewd acts upon a child. In April 2010, three additional counts of lewd acts upon a child were added, as well as four counts of sexual acts upon a child under 10 years of age. The information also included special allegations of substantial sexual conduct with a victim under the age of 14 as to five of the six counts of lewd acts upon a child. (§ 1203.066, subd (a)(8).)
Attorney Sam Eaton was appointed to represent Lazcano in February 2010 and continued such representation up to the August 2010 sentencing hearing. On July 9, 2010, Lazcano entered into a plea agreement pursuant to which he pleaded no contest to the six counts of lewd acts upon a child in return for a dismissal of the other charges and allegations. The plea agreement included an express representation that he would be sentenced to imprisonment for 18 years.
A sentencing hearing was set and conducted on August 20, 2010. At the sentencing hearing, Lazcano appeared with his counsel Sam Eaton and attorneys Alan Karow and Charter Hughes. Karow informed the court that he and Hughes wished to substitute in as counsel for Lazcano, and requested a continuance to "review the record and file in this matter" in order to "address appropriate issues." Eaton then stated that Lazcano requested a "small amount of time at least to talk to new counsel" and "see if there is any avenue that he might address at this point that [Eaton] might have overlooked or failed to address." The trial court responded by stating that it could not think of "an avenue [new counsel] can address" which could not be pursued after sentencing. The court stated that Eaton had represented Lazcano for approximately six months, and that Karow and Hughes had failed to state any basis to delay sentencing or identify any "issues you hope to explore." The court allowed the substitution of new counsel but denied the request for a continuance. The trial court then heard a statement from the victim's mother, and sentenced Lazcano to 18 years as set forth in the plea agreement.
DISCUSSION
Lazcano contends the trial court erred in denying his request for a continuance of his hearing. He argues that the denial of a continuance violated his right to counsel of his choice and to effective assistance of counsel. We disagree.
A criminal defendant who does not require appointed counsel has the constitutional right to counsel of his or her choice. (U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 144; People v. Courts (1985) 37 Cal.3d 784, 789.) A "criminal defendant cannot be deprived of the opportunity to retain counsel of his choice except when bestowal of that benefit would prejudice him or unreasonably disrupt the orderly administration of justice." (People v. Haskett (1982) 30 Cal.3d 841, 852.) Accordingly, the right of a defendant to appear and defend with retained counsel of his own choice is not absolute. (Gonzalez-Lopez, at pp. 150-151.) A trial court has wide latitude to balance the right to counsel of choice against the needs of fairness and expeditious judicial administration. (Id. at p. 152; Courts, at pp. 790-791.)
Similarly, the right to a continuance to facilitate choice of counsel is not absolute. A continuance may be denied if the defendant had a prior opportunity to find and prepare new counsel but was "unjustifiably dilatory" in doing so, or "arbitrarily chooses to substitute counsel at the time of trial." (People v. Courts, supra, 37 Cal.3d at pp. 790-791; see also Ungar v. Sarafite (1964) 376 U.S. 575, 590.) We review the denial of motions for a continuance for an abuse of discretion, considering the circumstances of each case including the reasons presented to the trial court at the time of the motion. (Courts, at p. 790.)
Here, there was no abuse of discretion. Lazcano was represented by counsel at the time he entered into a plea bargain, never expressed any dissatisfaction with counsel or the plea agreement, and gave no indication of any desire or reason to change counsel until the day of sentencing approximately six weeks later. Lazcano also offers no reasons on appeal for a change in counsel.
The trial court in the exercise of its discretion could have granted Lazcano's request for a continuance. Arguably, a brief continuance would not have materially impaired the efficient operation of the court. All that remained was for the court to pronounce a sentence to which all parties had agreed at the time of entry of the plea. No issue was raised regarding the propriety of either the plea agreement or sentence, however, and there is no showing of any deficiency on the part of counsel or any indication that a better result could have been obtained for Lazcano. On this record, the trial court was justified in concluding that Lazcano was properly represented and that his request for a continuance was an attempt to forestall sentencing for no apparent purpose.
Lazcano also argues that the denial of his continuance request rendered his legal representation ineffective. We agree that the right to counsel includes the right to effective counsel, but for the reasons stated above, the record includes no suggestion of ineffective assistance of counsel at any time during the pendency of the case. (See People v. Beeler (1995) 9 Cal.4th 953, 1003.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
_______________
PERREN, J.
We concur:
_______________
GILBERT, P.J.
_______________
YEGAN, J.
Rick Brown, Judge
(Retired judge of the Santa Barbara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
--------
Superior Court County of Santa Barbara
David A. Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.