Opinion
E067442
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER BELTRAN NUNEZ, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1402324) OPINION APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Alexander Beltran Nunez pled guilty to robbery (Pen. Code, § 211), being an active participant in a criminal street gang and carrying a loaded firearm (§ 25850, subd. (c)(3)), and active participation in a criminal street gang (§ 186.22, subd. (a)). He also admitted specified firearm and gang enhancements. (§§ 12022.53, subd. (b), 186.22, subd. (b)(1)(C).) A trial court immediately sentenced defendant to a total of 22 years in state prison, in accordance with the agreement. The court set another hearing for two weeks to resolve a credit calculation issue. At the next hearing, defendant requested that his retained counsel be substituted in for his appointed counsel. The court allowed the substitution, although it saw no need for new counsel, since it only intended to award credits. New counsel immediately asked for a continuance until five days later, which the court denied.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
On appeal, defendant argues that the court abused its discretion in denying his request for a continuance. In the alternative, he claims the court should have granted a motion to vacate the judgment, or granted a continuance for new counsel to see if there were grounds for a motion to vacate. We affirm.
PROCEDURAL BACKGROUND
The court held a hearing on the plea on October 26, 2016. At the hearing, the court asked defendant if he filled out the plea form, along with his attorney, if he went over the consequences of his guilty plea, and if he understood the rights he was waiving by pleading guilty. The court also asked if he had enough time to talk to his attorney, and if he initialed and signed the plea form. Defendant responded in the affirmative to everything. After defendant entered his guilty plea, the court found that defendant knowingly and voluntarily entered the plea. Defendant waived arraignment for judgment and indicated there was no legal cause why judgment could not be pronounced. Pursuant to the negotiated agreement, the court sentenced defendant to 22 years in state prison. The court then stated that it would address credits at another hearing in two weeks, since there were issues with the credits that needed to be resolved. The court asked if anything else needed to be addressed. Defense counsel said no and requested for defendant to return to court to address the credit issues. The court set a hearing for November 10, 2016, and ordered defendant back to court that day "for the credit issue only."
On November 10, 2016, defendant's appointed counsel appeared, along with retained counsel. The prosecutor had waived her presence because of a conflict. Retained counsel requested that appointed counsel be relieved, so that he could be substituted in. The court stated that they were just there for the court to receive a credit memorandum, that defendant had already been sentenced, and that it only intended to award credits. Retained counsel suggested that there may be some issues with the time of entry of judgment. The court said they needed the prosecutor present, so the clerk agreed to contact someone. The court proceeded to hear other matters and then returned to the current case and requested the credit memorandum. The court asked retained counsel if he wanted to substitute in, and he confirmed that defendant wanted the court to relieve his appointed counsel and substitute him in. Appointed counsel had no grounds to object, so the court said it would permit the substitution. However, the court made clear that it intended to simply award credits and remand defendant into custody. Retained counsel said he still wanted to be substituted in, so the court relieved appointed counsel and substituted in retained counsel. Before relieving appointed counsel, the court asked for the credit calculation (a total of 1,117 days), and the probation officer agreed to the credits.
Immediately after appointed counsel was relieved, retained counsel asked that the two-day notice requirement to give written notice of a motion for a continuance be waived. He then gave oral notice that he wanted to "continue the matter till Tuesday the 15th with paper to follow later this afternoon establishing good cause." The court asked why a continuance would be needed, given that the only issue before the court was the calculation of credits. Retained counsel replied that he had just been substituted in, he did not yet have the file, and he did not know whether they actually were there just for the calculation of credits. The court reiterated that sentenced had been pronounced, and the matter was continued for calculation of credits only. Retained counsel stated his position that entry of judgment had not yet occurred, so he could still file a motion to set aside the guilty plea. In the alternative, he stated that, if judgment had been entered, there was still jurisdiction to hear a motion to vacate. Counsel asserted: "And so for that purpose, I'm requesting to continue the matter till the 15th, expecting to file written notice and good cause this afternoon." He added that he would retrieve the file from appointed counsel and then review it "to determine whether or not a motion to set aside the guilty plea lies or whether or not a motion to vacate lies."
The court stated that it did not intend to grant a motion to continue, but would award credits in the amount of 1,777 days. The court then remanded defendant to custody. Retained counsel asked for the record to reflect that he made an oral motion to continue the case, and that it was not denied for being untimely. The court confirmed that the minutes would reflect that the motion to continue was denied, not because it was untimely, but because there was no good cause.
ANALYSIS
The Court Did Not Abuse its Discretion in Denying Defendant's
Motion for a Continuance
Defendant contends that judgment had not been entered as of the November 10, 2016 hearing, and the court's "treatment of the proceedings on that date as if [he] had been fully sentenced and judgment had already been entered was incorrect." He then argues that the court should have granted the continuance "so as to give him an opportunity to show good cause, if such cause existed, for continuing the matter further to a hearing on any proposed motion to withdraw the guilty plea." We see no abuse of discretion.
A. Relevant Law
Section 1050 provides that "[t]o continue any hearing in a criminal proceeding . . . a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary." (§ 1050, subd. (b).) "Continuances shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) The granting or denial of a continuance is committed to the discretion of the trial court. (People v. Parker (1965) 235 Cal.App.2d 100, 103.)
B. There Was No Abuse of Discretion
Section 1018 provides that "[o]n application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." Defendant spends a good portion of his opening brief claiming that judgment was not complete on October 26, 2016, because it did not include custody credits. In other words, he claims that judgment had not actually been entered when retained counsel was substituted in on November 10, 2016; therefore, he still had time to file a motion to withdraw his plea. To the extent this issue is relevant to defendant's motion for a continuance, we simply state the following: "In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.] A judgment in a criminal case may consist of a fine, a term of imprisonment, or both [citation]." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Here, the record demonstrates that the court pronounced judgment on October 26, 2016, immediately after defendant pled guilty. It then set another hearing for November 10, 2016, only to resolve the credit issue. We note that appellate counsel admits to not being able to find any direct authority to support his claim that custody credits must be awarded before a judgment is complete.
Assuming arguendo that judgment had not been entered by the time of the November 10, 2016 hearing, and defendant could still have made a timely motion to withdraw his guilty plea, the issue is whether the court abused its discretion in denying his motion for a continuance. We conclude that it did not.
We initially note respondent's argument that neither appointed counsel nor retained counsel filed written notice of the motion for a continuance two days before the hearing, as required by section 1050, subdivision (b). In response, defendant argues that retained counsel could not have done so, since he had just been substituted in as counsel of record and, thus, could not have complied. Defendant further points out that there was no hearing on whether there was good cause for the failure to comply with the written notice requirement. (§ 1050, subd. (d).) The issue of compliance with written notice is immaterial at this point. Retained counsel gave oral notice of his request for a continuance, and the court proceeded to consider the motion to continue.
In any event, retained counsel stated that he was requesting to continue the matter for five days, "expecting to file written notice and good cause this afternoon." This request was confusing, at best. Defendant explains that the court should have granted the request for a continuance "to give him an opportunity to show good cause, if such cause existed, for continuing the matter further to a hearing on any proposed motion to withdraw the guilty plea." (Italics added.) He apparently was asking for a continuance so his new counsel could examine the record to see if good cause existed to ask for another continuance for a possible motion to withdraw the plea. We cannot say that the court abused its discretion in denying the request. The asserted need for the continuance was caused by defendant's own decision to substitute in new counsel after he had already been sentenced, and at a hearing the court was holding simply to issue custody credits. To the extent the continuance was sought to permit new counsel to evaluate the record to see if there was good cause to file a motion to withdraw, the court was within its discretion in refusing to grant it, where defendant could not demonstrate that a continuance would even produce a motion. In addition, we note that the record shows the court questioned defendant before he entered his plea and found that he knowingly and voluntarily entered it.
Defendant claims that not granting the continuance denied him the effective assistance of counsel, since his new counsel "was deprived of knowledge of crucial evidence that he would need to be aware of," and he would need time to prepare. He claims that his situation was analogous to People v. Courts (1985) 37 Cal.3d 784. We disagree. In Courts, the Supreme Court concluded that the trial court abused its discretion in refusing to grant the defendant a continuance to permit him to be represented by an attorney he retained approximately one week before trial. The defendant explained to the trial court that he did not wish to delay the proceedings, but wanted " 'to obtain confident and experienced trial counsel to represent [him] on very serious felony charges.' "(Id. at p. 789.) Since it was the public defender's first trial, the defendant did not feel he had the experience to properly represent him. Moreover, the defendant was unable to obtain sufficient funding to retain private counsel until the week before trial. (Ibid.) The Supreme Court found that the defendant had engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date. (Id. at p. 791.) The Court also noted that the defendant attempted to raise the necessary funds and conscientiously informed the court of his efforts over a week before trial and made a motion for continuance then. (Ibid.)
In contrast, defendant here made a motion to substitute counsel after he had already been sentenced pursuant to a plea. Sentencing was held two weeks prior, and the court clearly stated that it was setting the hearing on November 10, 2016, "for the credit issue only." There was no indication why defendant waited until the hearing on the credits to substitute counsel. Moreover, the defendant in Courts stated that he did not feel confident in the public defender's representation since it was his first trial, and he wanted someone with experience. Here, defendant did not describe why he needed new counsel, especially at the end of the proceedings.
In the alternative, defendant claims that a motion to vacate the judgment "could have and should have been considered and granted by the trial court." However, he then contends that a continuance "should have been granted to permit new counsel to determine whether there were grounds for a motion to vacate the judgment." (Italics added.) For the reasons explained ante, defendant failed to show good cause for granting a continuance.
We conclude that the court properly exercised its discretion in denying defendant's motion for a continuance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.