Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF128379 Elisabeth Sichel and Craig Riemer, Judges.
Judge Sichel denied the motion to set aside the information. Judge Riemer presided over the trial and sentencing and made the remaining contested rulings.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Angela M. Borzachillo, and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
In February 2006, defendant Felipe DeJesus Martinez approached Damon Gabbard at a gas station. Defendant told Gabbard to leave the keys in the ignition of his car and to get out the vehicle or defendant would kill him. Defendant told Gabbard not to call the police and drove off. The police later found defendant driving Gabbard’s car.
Defendant was convicted of carjacking, making criminal threats, and dissuading a witness.
Defendant claims on appeal:
1. His conviction of dissuading a witness must be reversed due to prejudicial juror misconduct.
2. Denial of his Penal Code section 995 motion was erroneous, requiring reversal of his convictions.
3. He was denied his right of self-representation in violation of the Sixth Amendment when the trial court refused to grant him ancillary services to investigate a new trial motion.
I
PROCEDURAL BACKGROUND
A Riverside County Superior Court jury found defendant guilty of carjacking (Pen. Code, § 215, subd. (a)), making criminal threats (§ 422), and dissuading a witness (§ 136.1, subd. (b)). Defendant admitted he had served one prior prison term. (§ 667.5, subd. (b).) Defendant was sentenced to the midterm of five years on the carjacking, a consecutive two years on the dissuading a witness charge, and one year for the prior prison term, for a total of eight years in state prison. Sentence on the criminal threats charge was stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
We note that the abstract of judgment and minute order from sentencing improperly reflect the oral pronouncement of sentence by excluding the sentence on the prison prior. We will order that the abstract of judgment and minute order be corrected.
II
FACTUAL BACKGROUND
On February 3, 2006, about 3:00 a.m., Damon Gabbard was driving from Long Beach to his home in Riverside. Gabbard exited the freeway at Green River Road to get gas. Gabbard first pulled up next to the convenience store to smoke a cigarette. Next to where Gabbard parked, defendant was sitting on a bench using his cellular telephone.
While Gabbard stood outside his car smoking a cigarette, defendant asked him for a ride to La Habra and Corona, but Gabbard told him no. Gabbard got back into his car in order to move to the gas pump.
Defendant approached the driver’s side door. He had his hand on his waist under his clothes holding what Gabbard thought was a gun. Defendant demanded that Gabbard leave the key in the ignition and get out of the car. When Gabbard pleaded with defendant not to take his car, defendant told Gabbard to get out of the vehicle or he would kill him. Gabbard got out the vehicle. Defendant told Gabbard, “‘Do not call the police. If you do, if I go down, you go down.’” Defendant then turned on the car and drove off; he gave Gabbard a “smirky” look as he drove away. Gabbard ran to the pay telephone and called the police.
Gabbard was shown a six-pack photographic lineup, and he identified defendant. Gabbard repeatedly denied he knew defendant or that they had previously used drugs together. He also denied that he allowed defendant to drive his car and was waiting for him to come back to the gas station.
About 7:00 a.m. the following morning, defendant was apprehended in Gabbard’s car in La Habra. Defendant blurted out that he did not steal the car. No guns were found on defendant or in the car.
III
JUROR MISCONDUCT
Defendant contends the jury committed misconduct by considering evidence that was struck from evidence by the trial court prior to deliberations in convicting him of the dissuading a witness charge.
A. Additional Factual Background
During trial, Gabbard testified that he received a voice mail message on his answering machine the day following the carjacking. The message was from a woman named Brenda (Gurrolla), who identified herself as defendant’s sister. Brenda told Gabbard not to identify defendant from a lineup. Brenda also said that he should tell the police that he and defendant were friends and that Gabbard let him borrow his car. Gabbard did not know Brenda. Gabbard called the police.
Defendant filed a motion to exclude the testimony prior to trial, but the trial court admitted the testimony subject to what occurred during trial.
Charene Rumbolz was Gabbard’s roommate. She testified that she heard the message from Brenda on the answering machine.
Detective Edward Fanchin testified that he set up a pretext telephone call to Brenda after speaking with Gabbard. Detective Fanchin had a Spanish speaking officer call Brenda posing as Gabbard. The compact disc of the interview was played for the jury, and the transcript was given to the jury. According to the transcript of the pretext call, Brenda identified herself as defendant’s sister. Brenda stated she was called by defendant and told to call Gabbard and tell him not to identify him to police.
At the close of evidence, defendant brought a motion to set aside the charge of dissuading a witness pursuant to Penal Code section 1118.1. The trial court then indicated that it felt that the People had not presented sufficient evidence for the jury to conclude there had been a conspiracy between Brenda and defendant to admit her statements under Evidence Code section 1223. There was no evidence of any contact between defendant and Brenda. The trial court stated it was going to grant the motion as to the dissuading a witness charge.
At that time, the People argued that evidence of a statement made by defendant to Gabbard at the time of the crime not to call the police supported the crime. Defendant argued that this was not enough to support the charge. The trial court found these statements were enough to support the dissuading a witness charge. The trial court was going to instruct the jury to ignore all of Brenda’s statements.
The trial court instructed the jury as follows: “Before we move to the next step, I do want to tell you that the Court has determined that certain evidence that you have heard is to be stricken. That evidence is all of the evidence from whatever source concerning the statements allegedly made by Brenda Gurrolla.... That includes Exhibit 2, the recording that you heard, and the transcript of that recording.... [¶] So even though you’ve heard evidence concerning Brenda’s statements, you are not to consider Brenda’s statements in deciding this case.” The jury turned in their transcripts.
The jury was generally instructed: “If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.” The People argued in closing that defendant was guilty of dissuading a witness based on the “statement that the defendant made during the carjacking when he tells Mr. Gabbard not to call the police or he would go down with him.”
At 11:56 a.m. on July 7, 2009, the jury started deliberations. At 2:00 p.m. that day, they asked: “Is the testimony regarding the phone calls from the defendant’s sister also to be stricken or just what was in the transcript?” At the same time, they sent a note asking: “Juror No. 9 had a question for Ms. Gurrola[, ] is it too late to ask?” At 2:20 p.m., the trial court responded, with the consent of both parties: “You asked if it was too late to pose a question to Ms. Gurrolla. The answer is yes. The evidence in this trial is closed. [¶] You also asked for clarification regarding the extent to which the evidence concerning Ms. Gurrolla’s alleged statements has been stricken. I struck all evidence concerning the content of any telephone calls allegedly made by Ms. Gurrolla to Mr. Gabbard, Ms. Rumbolz, their answering machine, or Officer Castaneda. That includes, not only the contents of the statements in the recording and the transcript, but also any testimony concerning the contents of any of those statements. Because that evidence has been stricken, you must disregard all that evidence, and you may not consider any of that evidence for any purpose. [¶] I hope that this answers your questions. If not, please restate your inquiries. [¶] If you have any other questions, or if there is anything else that we can do to facilitate your deliberations, address them to me in writing and give them to the bailiff or clerk.”
In the morning on the following day, the jury asked to “[r]eview Mr. Gabbard’s testimony.” The trial court prepared the testimony, and it was given to the jury. At 1:30 p.m., the jurors stated that they were deadlocked.
A hearing was held. The foreperson indicated that two votes had been taken. The first split was 8 to 4; the second was 11 to 1. The jurors were concerned the only evidence to support defendant’s guilt was from Gabbard’s testimony. The trial court reiterated that the People still had the burden of proof to prove the case beyond a reasonable doubt. The foreperson thought this explanation would assist deliberations.
The jurors resumed deliberations at 2:00 p.m. They reached their verdict at 2:26 p.m.
B. Analysis
An accused has a constitutional right to a trial by an impartial jury. (People v. Nesler (1997) 16 Cal.4th 561, 578.) Juror misconduct occurs when there is a direct violation of the juror’s oaths, duties, or admonitions. (In re Hamilton (1999) 20 Cal.4th 273, 294.) “Misconduct by a juror... usually raises a rebuttable ‘presumption’ of prejudice. [Citations.]... [¶]... Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]” (Id. at pp. 295-296.)
Since defendant never raised the issue of juror misconduct in the trial court, there is no information other than the juror’s questions and the admonition by the trial court to support his claim of juror misconduct. Defendant’s claim is based on mere speculation. Here, the jury was presented with testimony regarding Brenda’s statement from various sources. Gabbard testified regarding the statements on the answering machine. Detective Fanchin also testified regarding the statements made by Brenda on the answering machine. The jurors heard a recording of the pretext telephone call and the transcript. The jurors were specifically told to return the transcript and to disregard “all of the evidence from whatever source concerning the statements allegedly made by Brenda Gurrolla, ” including the transcript and recording.
Unlike defendant, we do not view the question whether all of the telephone calls from Brenda were stricken in addition to the transcript as evidence of juror misconduct. This was not a willful failure to follow instructions. Based on the record before us, it does appear the jurors were seeking clarification that in addition to the pretext call made to Brenda, her calls to Gabbard were also excluded. Defendant’s claim that the jury improperly relied on the stricken evidence to convict defendant of dissuading a witness is simply not supported by the evidence, nor does the record support that the jury disregarded the trial court’s instructions. Rather, the questions presented by the jury showed they sought clarification of the excluded evidence. Moreover, their subsequent questions to the trial court give no indication that they had further discussions or confusion as to Brenda’s testimony. Without more, we simply cannot conclude that juror misconduct occurred.
Defendant makes a one-sentence statement in his argument that evidence on which the People did rely for the dissuading a witness charge—the statements made by defendant at the gas station—was insufficient to support the verdict. However, defendant does not support his claim by any argument or further explanation. Defendant has the burden of providing an argument and legal authority to support his contentions. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.) Since defendant has not properly presented the issue to this court, we will not consider it. Moreover, since we find there was no juror misconduct, we need not assess prejudice.
IV
SECTION 995 MOTION
Defendant contends the trial court improperly denied his section 995 motion because he was not allowed to call the victim as a witness at the preliminary hearing.
A. Additional Factual Background
At the preliminary hearing, defendant’s counsel noted that he had subpoenaed Gabbard to testify for an affirmative defense, and Gabbard was on his way to court. The People objected to calling Gabbard. Defendant’s counsel would provide an offer of proof at the end of the People’s evidence.
Corona Police Officer Jason Gardner testified on behalf of the People. He testified that he responded to the gas station at 4:23 a.m. on February 3, 2006, and spoke with Gabbard. Gabbard told Officer Gardner that defendant had approached him and asked for a ride. When Gabbard refused, defendant put his hand inside his jacket. He told Gabbard to leave the keys in the ignition and not to call the police or he would kill him. Gabbard believed that defendant had a gun inside his jacket. He relinquished his car to defendant. Defendant was later found driving the car. Defendant denied to the arresting officer that he stole the car. Gabbard told Officer Gardner that he had not met defendant prior to that night.
Detective Fanchin also testified on behalf of the People. Detective Fanchin showed Gabbard a six-pack photographic lineup and Gabbard identified defendant as the man who took his car. Detective Fanchin also testified to the message left by Brenda on Gabbard’s answering machine. Gabbard told Detective Fanchin that he had never met defendant prior to that night.
At the end of the People’s evidence, defendant made an offer of proof. Defendant’s counsel indicated that Gabbard was in the hallway ready to testify. The affirmative defense went to the force or fear element of the carjacking. Defendant’s counsel offered as follows: “We believe that Mr. Gabbard, or the defense in good faith believes Mr. Gabbard, allowed the defendant to take the car to La Habra for money or for some drugs. And because [defendant] did not come back soon enough, Mr. Gabbard at that point in time called the police. [¶] We believe Mr. Gabbard knows the victim. As a matter of fact, we believe in good faith, that [defendant]... went over to visit Mr. Gabbard at his previous residence... back on November of 2005. This incident occurred in February of 2006.... [¶] And we also believe Mr. Gabbard knows the defendant on another previous occasion, which was October 2005, where Mr. Gabbard met with [defendant], a girl by the name of Lisa, and another individual by the name of Gabriel Mendoza, for the purposes of purchasing contraband.”
The People objected that it had not been advised that Gabbard had made any statements other than that he did not know defendant. Defense counsel stated that he had spoken with Gabbard, who was very “evasive” and “abrasive.” Defense counsel then stated: “The defense believes in good faith if Mr. Gabbard testifies under oath indicating that he knows the defendant, he provided a statement to the police that he never met the defendant, doesn’t know the defendant, and... if the case was different and he does testify that he has met the defendant, his credibility becomes an issue, and I think at that point it becomes relevant, even at a probable cause hearing.”
The People responded that it believed defendant wanted to call Gabbard in order to intimidate him from testifying at trial. The People believed that the evidence presented by the officers’ testimony was sufficient to bind defendant over for trial.
The magistrate ruled, “I’m going to rule in keeping with the district attorney’s argument. I feel that you haven’t made sufficient showing for the victim to testify—and I can’t talk—in any event, that would be my ruling on the matter.” The trial court found there was enough evidence to hold defendant over for trial.
Defendant filed a motion to set aside the information pursuant to section 995. He argued that he only needed to show in his offer of proof as to Gabbard’s testimony that it was “reasonably likely” that such testimony would be provided. Counsel for defendant at the preliminary hearing had a good faith belief that Gabbard would testify that he knew defendant and gave him permission to use his car. This was a complete defense to the carjacking. There was no reason for the defense to be prevented from calling Gabbard, who was in the hallway ready to testify.
In its opposition, the People relied upon People v. Eid (1994) 31 Cal.App.4th 114 (Eid) and section 866, subdivision (a) to support their argument that it was within the magistrate’s broad discretion to exclude the testimony of the victim in this case. The People contended that defendant’s offer of proof as to Gabbard’s testimony was inadequate. Defense counsel never provided specifics about Gabbard’s testimony.
Defendant filed a response that the offer of proof was sufficiently specific to have Gabbard testify.
A hearing was held on the motion. The trial court felt that the offer of proof may have been enough to admit Gabbard’s testimony. The People emphasized it was not a good faith offer of testimony if the proffered testimony did not come from the witness who would testify; defense counsel could not base his good faith offer on statements made by defendant as to what testimony the witness would offer. The matter was taken under submission.
The trial court issued its written ruling as follows: “The standard of review is an ‘abuse of discretion’ standard. This court does not find that the judge abused his discretion in not allowing the defense to call the victim as a witness at the preliminary hearing. [¶] Proposition 115 was passed to protect victims and witnesses. It requires a specific and unambiguous offer of proof from the defense for any witness they intend to call. The offer of proof in this case was not so unambiguous or clear as to lead this court to find that the judge abused his discretion. In fact the lawyer indicated that the victim was being evasive in his responses to the lawyer. Having a good faith belief that a witness will testify to something is not the same as a positive assertion that the lawyer knows that the defendant has said, and will say certain things. [¶] Additionally, and separately, the court pointed out that permissive use is not a complete defense. For example, if the defendant received permission because he was pointing a gun at the victim, then it is not a defense.”
B. Analysis
In People v. Scott (1999) 76 Cal.App.4th 411, the Court of Appeal explained the standard of review for section 995 motions: “‘[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate....’” (Id. at pp. 415-416.)
“Proposition 115 has ‘considerably narrowed’ the purpose of preliminary hearings in this state. [Citation.] It added section 30, subdivision (b), to article I of the state Constitution (section 30(b)) which states: ‘In order to protect victims and witnesses in criminal cases, hearsay evidence shall be admissible at preliminary hearings, as prescribed by the Legislature or by the people through the initiative process.’” (Eid, supra, 31 Cal.App.4th at p. 125, italics omitted.)
Section 866, subdivision (a) provides that “[w]hen the examination of witnesses on the part of the [P]eople is closed, any witness the defendant may produce shall be sworn and examined. [¶] Upon the request of the prosecuting attorney, the magistrate shall require an offer of proof from the defense as to the testimony expected from the witness. The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her sound discretion, that the testimony of that witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.”
This case is nearly identical to Eid. In Eid, three defendants were charged with sexually assaulting a female victim. According to the evidence presented at the preliminary hearing, through the investigating detective, the victim had been walking by a party and entered the party at the behest of one of the defendants. Thereafter, she consumed some beer and took one “hit” of a marijuana cigarette. The victim told the investigating detective that she was then rendered unconscious. She did not recall what happened to her (only some recollection of someone being on top of her and penetrating her vagina). (Eid, supra, 31 Cal.App.4that pp. 119-120.) After that night, she had serious injuries to her vagina, including contracting pelvic inflammatory disease (PID). (Id. at pp. 120-121.) The defendant’s statements to police that the acts were consensual were presented at the preliminary hearing. (Id. at pp. 121-122.)
At the close of the People’s evidence, the defendants sought to call the victim. The victim had refused to speak with defense investigators, but defense counsel “advised the magistrate they expected she would admit the PID had been caused by other sexual contact and that she had not been unconscious at the time of the alleged sexual assaults.” (Eid, supra, 31 Cal.App.4that p. 123.)
The magistrate ruled that the defense had not made an adequate offer of proof under section 866. “The magistrate stated ‘an offer of proof has to be that I have spoken with this witness, and she told me X, Y and Z, and she will take the witness stand and say X, Y, and Z. [¶] Now that’s an offer of proof.’” (Eid, supra, 31 Cal.App.4th at p. 124.) The superior court reversed the ruling. (Id. at p. 125.)
The appellate court first noted that had the victim testified as stated in the offer of proof, it would have been an affirmative defense. (Eid, supra, 31 Cal.App.4that p. 126.) It then recognized: “The substance of evidence in a valid offer of proof must be attributed to the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue. [Citations.]” (Id. at pp. 126-127.) It concluded: “Upon examination, however, the offer of proof was based on nothing more than optimistic expectation [the victim] would admit her statements to [the investigating officer] were false. That offer was insufficient to warrant cross-examination of her at the preliminary hearing under section 866, subdivision (a). [¶]... [¶] Thus, the defendants failed to demonstrate a purpose for [the victim]’s testimony within section 866, subdivision (a), that outweighed the public policy of protecting victims of crime.” (Id. at p. 127, fns. omitted.)
Here, defense counsel’s offer of proof was also inadequate. Defense counsel stated that Gabbard had been “evasive” and “abrasive” when he tried to talk to him. Defense counsel’s offer of proof was based on counsel’s “good faith” belief that Gabbard, under oath, would testify that he knew defendant and let him borrow his car. At no time in the offer of proof was it stated that Gabbard had actually made these statements. As noted by the magistrate in Eid, “‘an offer of proof has to be that I have spoken with this witness, and she told me X, Y and Z, and she will take the witness stand and say X, Y, and Z. [¶] Now that’s an offer of proof.’” (Eid, supra, 31 Cal.App.4th at p. 124.)
There was nothing before the magistrate in this case to support that Gabbard would testify he knew defendant prior to the crime or that Gabbard gave defendant permission to take his car. Even if defense counsel had a “good faith” belief that Gabbard might make those statements, it is clear from the offer of proof that Gabbard had never actually made those statements to defense counsel. The magistrate did not err by refusing to allow defendant to put Gabbard on the stand at the preliminary hearing. There was more than enough evidence to bind defendant over for trial based on the testimony of Detective Fanchin and Officer Gardner. Defendant’s section 995 motion was properly denied.
V
ANCILLARY SERVICES
Defendant contends he was denied his right to self-representation in violation of the Sixth Amendment by the trial court’s refusal to grant him ancillary services to pursue a new trial motion.
A. Additional Factual Background
Verdicts in this case were reached on July 8, 2009. Thereafter, the sentencing was continued until October 23, 2009.
On the day set for sentencing, the trial court acknowledged that it had received defendant’s Faretta request to proceed in propria persona, a separate request for a trial transcript and appointed investigator, and a request for discovery. In his written motion requesting ancillary services, defendant claimed an investigator was necessary to redact confidential information from the records and to interview witnesses that defense counsel did not call at trial. Defendant alluded to a new trial motion based on ineffective assistance of counsel. Further, in defendant’s written request for discovery, he argued that Gabbard’s 911 call and recording were not provided to the defense.
Faretta v. California (1975) 422 U.S. 806 [96 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta).
Defendant claimed at the hearing that he had researched the law since his conviction, and he had “seen a couple of issues, and I’m trying to file a new-trial motion, which is why I’m asking to go pro[.] per.” Defendant claimed he never received any information regarding the 911 call made by Gabbard from the gas station. Defendant was not sure what was said, but it might provide impeachment evidence.
The trial court admonished defendant that if he was granted in propria persona status, there was no guarantee it would grant a motion to continue the sentencing in order for defendant to file a new trial motion. Defendant continued to assert that he wanted to represent himself, and the trial court granted the Faretta motion.
The trial court then addressed defendant’s request for a continuance in order to file a motion for new trial.
The People asserted that the 911 call had been purged in July 2007 and was no longer available. It could not have been given to the defense. Based on this information, defendant’s motion to compel discovery was denied.
Defendant requested that a continuance be granted. He wanted an investigator to see if there was any video surveillance from the gas station and to interview other witnesses. The People opposed the continuance, arguing such evidence could be pursued on appeal. The People also asserted that the surveillance tape had been provided to defense counsel; it was decided by both counsel not to use it. Defendant contended that it would show Gabbard never went inside the convenience store. The trial court ruled: “There certainly is the ability to develop these leads and present them either in terms of a petition for habeas corpus to the Trial Court or petition for habeas corpus in conjunction with your appellate challenges, but the Court, at this time, in the absence of offers of proof beyond what have already been made, ... is not inclined to postpone sentencing.”
Defendant then claimed he had witnesses who would testify that defendant and Gabbard knew each other prior to the carjacking. Defense counsel had told defendant that these witnesses would not make a difference. Defense counsel never had an investigator interview the witnesses.
The trial court did not see a chance for success on the motion. It concluded: “This case has been pending since February of 2006. It was finally tried earlier this year. And the sentencing has now been pending for nearly... three months, since the end of the trial. [¶] The Court does not see justification[, ] given the fact that we not only don’t have a motion for new trial ready, we don’t even have one that’s in the works. We simply have the possibility that, if discovery or investigation were to be done, that that investigation might disclose the grounds for a motion for new trial. [¶] That’s not enough. That mere possibility is not enough to, in the Court’s mind, to justify further delay. This is an already very much delayed case.” The motions for ancillary services and to continue sentencing were denied.
B. Analysis
“The due process right to effective counsel includes the right to ancillary services necessary in the preparation of a defense. [Citations.]” (People v. Faxel (1979) 91 Cal.App.3d 327, 330.) “The right is codified in Penal Code section 987.2 which provides that counsel appointed for an indigent defendant shall not only be compensated by a reasonable fee but also shall be reimbursed for his necessary expenses.” (Ibid.)
The defendant has the burden of demonstrating that the requested ancillary services are reasonably necessary. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320.) On appeal, a trial court’s order on a motion for ancillary services is reviewed for an abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1085, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Defendant requested that ancillary services be granted in order to investigate a motion for new trial on the ground of ineffective assistance of counsel. Although section 1181 does not list under the grounds for a motion for new trial ineffective assistance of counsel, courts have concluded that a new trial motion can be brought on this ground. (People v. Fosselman (1983) 33 Cal.3d 572, 582.) Defendant failed to demonstrate that the investigator’s services were reasonably necessary for the preparation of his new trial motion on the ground of ineffective assistance of counsel.
Defendant has provided no authority, nor have we found any, that supports his claim that he was entitled to ancillary services in order to file a motion for new trial. It is at least arguable that defendant did not have a right to ancillary services in order to file a new trial motion. However, since the People assume that defendant was entitled to the services, and we find that defendant did not show it was “reasonably necessary” that he be granted ancillary services to file a new trial motion, we need not decide the issue.
As stated by the People, the 911 call made by Gabbard had been destroyed. Additionally, both counsel had agreed that the surveillance tape was not helpful for trial. Finally, defendant claimed he wanted the investigator to interview other witnesses, but he did not provide the names or possible statements of the witnesses. Without declarations from witnesses or an offer of proof as to who they were and how they would testify, the trial court was not in a position to render a decision on an ineffective assistance of counsel claim. Under these circumstances, defendant failed to making a showing of the need for ancillary services, as there were no established grounds that would support a new trial motion.
Defendant briefly states that once he was granted propria persona status, he was entitled to a continuance. In general, denying a defendant in propria persona a reasonable continuance to prepare for trial “‘would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.’ [Citations.]” (People v. Hill (1983) 148 Cal.App.3d 744, 756.) In a recent case, a court held that a Faretta motion made a reasonable time prior to commencement of the sentencing hearing is timely. (People v. Miller (2007) 153 Cal.App.4th 1015, 1024.)
Here, although not mentioned by the trial court, the Faretta motion was untimely, as it was brought on the day of sentencing. Prior to granting the Faretta motion, the trial court admonished defendant that it would not necessarily grant a motion to continue the sentencing in order for him to file a new trial motion. The trial court agreed to grant the (untimely) request with the understanding that there would be no guarantee of a continuance. Defendant was clearly advised that if he chose to proceed in propria persona, he might not be granted a continuance. The trial court could have simply denied defendant’s Faretta motion as untimely and proceeded to sentencing.
Moreover, a continuance in a criminal case may only be granted for good cause. (§ 1050, subd. (e).) As set forth, ante, defendant did not provide adequate grounds for a new trial motion. Sentencing had already been continued for three months, and defendant had made no attempt to investigate or proceed with the new trial motion. There was no good cause to grant the continuance.
We see no error in the refusal to grant defendant’s request for a continuance to file a new trial motion or in refusing defendant ancillary services to investigate the motion.
VI
CORRECTION OF ABSTRACT OF JUDGMENT AND MINUTE ORDER
Although not raised by either party, the trial court’s oral pronouncement of the sentence differs from the abstract of judgment and minute order from the date of sentencing. The trial court stated at sentencing, after imposing the seven years on the carjacking and dissuading a witness convictions, “[t]he prior under [section] 667.5, [s]ubdivision (b), adds one more year to that, so that is a total sentence of eight years in State prison.” However, the minute order and abstract of judgment do not reflect the additional one year imposed. The oral pronouncement of judgment controls over the clerk’s minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) We may correct the clerical error on appeal and will so order. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
VII
DISPOSITION
The clerk of the superior court is directed to correct the sentencing minute order and amend the abstract of judgment to reflect that the court imposed a one-year term for the prison prior pursuant to section 667.5, subdivision (b). The trial court is further directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MILLER J., CODRINGTON J.