Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA268682. Judith L. Champagne, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Salvador Patrick Melendez (Melendez) entered into a negotiated plea agreement under the terms of which he pleaded guilty to attempted murder (Pen. Code, § 664/187, subd. (a)), committed for the benefit of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)), and during the commission of which he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). In exchange for the entry of his plea, the trial court was to sentence Melendez to a determinate term of 29 years in prison. On the date sentencing was to occur, Melendez made a motion to continue proceedings so that he could retain new counsel to assist him in making a motion to withdraw his plea. After granting a two-week continuance, the trial court denied Melendez’s request for a second two-week continuance and sentenced him to the agreed upon term. Melendez appeals from the judgment entered following the trial court’s order denying his request for a continuance. He asserts the sentence imposed must be vacated and the matter remanded to the trial court with directions to grant a reasonable continuance to enable him to retain new counsel. We affirm the trial court’s order.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
The facts are not in dispute. Suffice it to say that at approximately 2:00 p.m. on July 21, 2004, Melendez and a companion approached the victim, Adam Duran (Duran), at Fresno Park in East Los Angeles. An altercation ensued, during which Melendez pulled out a small, shiny handgun. Duran decided to leave the park and, as he was walking away, he realized Melendez was following him. When Duran heard gunshots, he began to run. As Duran was running down an alley near the park, Melendez shot Duran in the lower left leg.
2. Procedural History.
On November 2, 2004, the People filed a two count information charging Melendez in count one with attempted willful, deliberate, premeditated murder (§§ 664/187, subd. (a)), during the commission of which he personally and intentionally used and discharged a firearm, proximately causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)), and in count two with dissuading a witness by force or threat (§ 136.1, subdivision (c)(1)). It was alleged as to both counts that the offenses had been committed for the benefit of, at the direction of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)). Melendez entered pleas of not guilty to both counts and denied the special allegations.
Pursuant to section 1387.2, on May 5, 2005, all parties agreed the case would be deemed dismissed and refiled under the same case number. Melendez was rearraigned and again pleaded not guilty to the charged offenses and denied the special allegations.
At proceedings held on October 14, 2005, following denial of Melendez’s Pitchess motion, Melendez’s counsel, alternate public defender David Sakata, was relieved and private counsel, Simon Aval (Aval), was substituted as counsel of record.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On January 24, 2006, Melendez entered into a negotiated plea agreement under the terms of which he was to plead guilty to attempted murder, admit discharging a firearm in violation of section 12022.53, subdivision (c) and admit that the attempted murder was committed for the benefit of and in association with a criminal street gang. In exchange, Melendez was to be sentenced to nine years in prison for the conviction of attempted murder and a consecutive twenty years in prison for discharging a firearm during the offense, for a total term of 29 years. The sentence for his admission that the attempted murder was committed for the benefit of a criminal street gang would be run concurrently to the 29-year term. All remaining allegations, including the “willful, deliberate and premeditated” language used to describe the attempted murder and the count alleging he had dissuaded a witness, would be stricken.
Before Melendez entered the plea, the prosecutor indicated the offer had been made over a month before the January 24, 2006, proceedings and, accordingly, Melendez had had a significant amount of time to consider it. The prosecutor continued, stating, “I don’t want the record to reflect that somehow he’s been in a position where he has to take the deal today and he’s only had a short period of time to think about it. . . . [¶] Also, for the record, [Melendez] is looking at, upon a conviction, . . . three life terms in this case. . . The offer is twenty-nine years.”
After determining that Melendez understood the terms of the plea agreement, the trial court indicated it would have the prosecutor advise Melendez of his constitutional rights and take the plea. Sentencing would then be “put . . . over to whatever date counsel select[ed].”
After Melendez entered his plea, his counsel indicated he wished to have sentencing proceedings scheduled for February 28, 2006. When the trial court asked Melendez if he would “agree to put sentencing in [the matter] over to February 28,” Melendez indicated he would agree to the date.
At proceedings held on February 28, 2006, Aval, who was at that time still representing Melendez, informed the court that he had “received a call from [a] Ms. Arfa.” Counsel continued, “She indicated she ha[d] been contacted by the family. She was quite hopeful she is going to be retained. She did indicate [s]he has not yet been retained. She wanted me to ask the court for a 30-day continuance on the sentencing hearing. Apparently [Melendez] intends on filing a motion to withdraw his plea.” Aval indicated he would be happy to cooperate with Arfa should she be retained as counsel, then stated, “As we stand today I am personally ready to proceed with sentencing. Since I got the message yesterday, I pretty much assumed that is what [Melendez] intends on doing. After speaking with him this morning it seems like he does want a continuance of his sentencing to possibly be able to see what he can do with this new attorney.”
The following colloquy then occurred: “The Court: I am not going to put it over that long just to see if she is going to come in. I will put it over briefly to see if she is going to come in. Thirty days would be beyond the time I would be willing to delay it. [¶] Mr. Aval: I have no preference one day or another. Whatever the court thinks is sufficient time. I think it is fair to come back in a few weeks. [¶] The Court: Two. [¶] Mr. Aval: She may not even get retained. [¶] . . . [¶] The Court: . . . Two weeks from today would be the 14th of March. If the defendant waives time I will put the sentencing over to that date. If Ms. Arfa is retained and comes in and can be prepared within a reasonable amount of time, then I will allow the substitution.”
On March 14, 2006, Aval, still acting as Melendez’s counsel, informed the trial court he “had received a phone call from a private attorney named Fay Arfa. She indicated . . . she was in the process of being retained by [Melendez’s] family.” Counsel stated, “At the time when we were here two weeks ago I asked the court for a one month date to come back. [¶] The court indicated it is best we come back in two weeks. The family is present in court. They have shown me some documentation signed by the attorney and [family members] which appears to be a retainer agreement, however, they have not given Ms. Arfa any money. She is wise enough to say she doesn’t want to take any portion of the retainer up front. She wants to be retained first then come on in. [¶] Again, on behalf of the family and the defendant, I am going to make a request from the court to continue this matter for sentencing one last time for another two week date. [¶] In speaking with the family it appears they are making a good faith effort and they are very close to retaining Ms. Arfa. The problem I personally have, I am ready for sentencing. It is just the fact that my client is going to be sentenced to 29 years in prison. I think two weeks, given the fact he has a [29] year sentence awaiting him, is not an unreasonable request.”
The trial court responded, “It is not two weeks. This is an ongoing matter. At this point I have some reluctance to keep postponing a date previously set. No one exerted any type of coercion in this matter. . . .” The court continued, “This case goes back to 2004? . . . I know that I was, at some point[,] after two years of the case lang[u]ishing, anxious to get it to [Department] 100 for trial. Ultimately it reached a disposition.” The prosecutor then interjected, “Your honor, may I add one thing? When we did have the disposition and we took the plea in this case, it was addressed in the plea or during the plea any reluctance that Mr. Melendez might have because his family wasn’t in agreement with him entering into a disposition. . . . Those issues were addressed. . . . Mr. Aval spoke with [Melendez]. I believe he had several weeks. The court gave us time for Mr. Aval to speak to [Melendez] and think about it. . . . [M]y belief is there was at least a two week to a month period before the plea that Mr. Melendez considered the option of entering a plea or going to trial. [¶] The case was aged and the court indicated that the court was not going to put the matter over again. It was going to be a plea or go to trial. [¶] The court gave [Melendez] an opportunity to think about the disposition. When he came back, he decided he wanted to enter a plea. . . . ” After indicating it appeared Melendez had had “several months” to consider the offer of the plea agreement, the trial court stated, “Again, nobody rushed into this. This was a plea that we entered into on January the 24th. We are talking about six weeks ago. It isn’t a matter of, let’s give him two weeks. It has been months and months in the making and then six weeks since he entered his plea. [¶] At this point, counsel, the court is just not inclined to continue it further.” Aval responded, “Defense is ready for sentencing, your honor. Just so we are clear I am not arguing my client’s right to withdraw his plea. That is for the new counsel to do on whatever ground she deems appropriate. We are here for sentencing. I am ready.” The trial court then imposed the agreed upon twenty-nine year sentence and granted the prosecutor’s motion to dismiss the remaining counts and allegations.
On March 20, 2006, Melendez timely filed a notice of appeal from the judgment. Melendez’s request for a certificate of probable cause, based on the fact that “defendant wanted more time to hire an attorney to withdraw his plea [and] [t]he trial court denied his request . . . and sentenced him anyway[,]” was apparently neither granted nor denied.
On November 14, 2006, Melendez filed in this court a petition for writ of mandate in case number B194894, asserting the trial court erred in refusing to issue a certificate of probable cause. This court denied the petition on November 29, 2006. However, Melendez’s petition for review was granted by the California Supreme Court on February 14, 2007. The Supreme Court transferred the matter back to this court with directions to vacate its order denying Melendez’s petition for writ of mandate and to issue an alternative writ. In an order dated July 5, 2007, this court determined that a certificate of probable cause was not needed to appeal the denial of Melendez’s request for a continuance and, accordingly, denied the petition for writ of mandate as moot. The present appeal followed.
CONTENTION
Melendez contends the trial court abused its discretion when it denied his request for a two-week continuance to enable him to retain new counsel.
DISCUSSION
“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.’ [It has] previously [been] held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.” (United States v. Gonzalez-Lopez (2006) 548 U.S. ___ [126 S.Ct. 2557, 2561].) However, “the right to counsel of choice ‘is circumscribed in several important respects.’ ” (Ibid.) It has been recognized that a trial court has wide latitude in “balancing the right to counsel of choice against the needs of fairness, [citation], and against the demands of its calendar [citation].” (Id. at pp. 2565-2566.)
“The burden is on appellant to establish an abuse of judicial discretion in the denial of his request for continuance to secure new counsel. [Citation.] The resolution of the issue depends on the circumstances of each case. [Citations.] The right of a defendant to appear and defend with counsel of his own choice is not absolute but must be carefully weighed against other values of substantial importance such as those seeking ‘the orderly and expeditious functioning of judicial administration.’ [Citation.] A defendant is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory [citation] . . . .” (People v. Rhines (1982) 131 Cal.App.3d 498, 506; see also People v. Blake (1980) 105 Cal.App.3d 619, 623-624.)
In the present case, pursuant to a negotiated agreement, Melendez pleaded guilty to the charged offenses on January 24, 2006. Sentencing proceedings were then scheduled for February 28, 2006, approximately one month from the day the plea had been entered. It was on that date, the date set for sentencing, that defense counsel, Aval, indicated he had been contacted by Arfa, who informed him she had been contacted by Melendez’s family and hoped to be retained to represent Melendez for the purpose of making a motion to withdraw his plea. When Aval then requested a 30-day continuance, the trial court refused. The court did, however, grant a two-week continuance and informed counsel and Melendez that, “[i]f Ms. Arfa [was] retained and c[ame] in and [could] be prepared within a reasonable amount of time, then [the trial court would] allow the substitution.”
Far from engaging in a “myopic insistence upon expeditiousness in the face of a justifiable request for delay [which] can render the right to defend with counsel an empty formality . . .” (Ungar v. Sarafite (1964) 376 U.S. 575, 589), the trial court acted reasonably when, faced with yet another delay, it granted a continuance for what it considered to be a reasonable amount of time within which Melendez and his family could negotiate the retention of new counsel. Melendez had six weeks from the time he entered his plea to make such negotiations and no reason was ever given as to why they could not be accomplished within that time frame.
We note “[t]hese matters are, of course, arguable, and other judges in other courts might well [have] grant[ed] a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional. Given the deference necessarily due a state trial judge in regard to the denial or granting of continuances, we cannot say [this] denial[] denied [Melendez] due process of law.” (Unger v. Sarafite, supra, 376 U.S. at p. 591.)
DISPOSITION
The judgment (order denying a continuance) is affirmed.
We concur: KITCHING, J., ALDRICH, J.