Opinion
2d Crim. No. B194983
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. LAURIE ANN PHILLIPS, Defendant and Appellant.
Jean Matulis, 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, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Laurie Ann Phillips appeals from the judgment entered following her conviction by a jury on two counts of making criminal threats (Pen. Code, § 422) and one count of exhibiting a deadly weapon. (§ 417, subd. (a)(1).) The jury found true allegations that, in the commission of the criminal threat offenses, appellant had personally used a firearm. (§ 12022.5, subd. (a)(1).) The trial court suspended the imposition of sentence and ordered that appellant be placed on probation. One of the conditions of probation was that she serve 365 days in the county jail.
All statutory references are to the Penal Code.
Appellant contends that the trial court erroneously (1) denied her motion to continue the trial because problems with her back warranted a continuance; (2) proceeded with the trial despite her protestation midway through the trial that she was in severe pain; and (3) denied her request to discharge privately retained counsel. We affirm.
Because the evidence presented at the trial has no bearing on the issues in this appeal, we omit the customary statement of facts.
Denial of Continuance
Trial was scheduled to begin on July 7, 2006. Two days before the trial date, appellant filed a motion to continue the trial to August 1, 2006. Appellant alleged that, on June 21, 2006, she had undergone "lumbar surgery." "As a result of the surgery, [she] is not able to sit for more than one hour until August 1, 2006." Therefore, appellant argued, "her physical condition does not allow her to sit through the trial at this time." Attached to the motion was a note from appellants doctor stating that she would be able to return to work on August 1, 2006. Until that date, she would be "unable to sit for more than one hour."
Respondent opposed the motion to continue the trial. The prosecutor informed the court: "The witnesses . . . are coming from a distance, everybody has been subpoenaed, the People are ready to go."
The court denied the motion because it believed that it could accommodate appellants disability by taking frequent breaks during the trial. The court said that it would take a break every hour. In addition, the court told appellant: "[W]henever you feel like you need to take a break, communicate this to [your counsel] and well take a break. So even if its only been half an hour and youre feeling uncomfortable, or you feel you need to walk to relieve pain or stress[,] well take a break."
"[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶]. . . [D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]" (People v. Beames (2007) 40 Cal.4th 907, 920-921.)
Appellant has failed to carry her burden of establishing that the trial court exceeded the bounds of reason in denying her motion for a continuance. The note from appellants doctor did not say that she was unable to endure the stress of a trial. It said that she was unable to sit for more than one hour at a time. The trial court reasonably concluded that it could accommodate her disability by taking frequent breaks so that she would not sit for more than one hour at a time.
Refusal to Suspend Trial Proceedings
On the morning of the third day of trial, appellants counsel told the court that she had spoken to Dr. Connor, appellants doctor. Dr. Connor said that appellant needed a 15-minute break every hour so that she could "stand and walk around." The court responded: "Well do that. So, just bring it to the clerks attention, or my attention, make eye contact, and well take a break."
On the fourth day of trial, appellant failed to appear. Appellants counsel said that at 2:00 a.m. her client had been admitted to a hospital emergency room in severe pain. She had "been discharged with orders to follow-up with her doctor."
The next day, appellant appeared in court. Her counsel said that, the preceding day, she had been "unable to move" and had stayed in bed all day. Counsel asserted that appellant is "in extreme pain right now" and "doesnt feel that she can sit through the proceedings . . . ." Counsel argued that, because of appellants condition, "shes not able to sit in court and . . . not able to fully follow the proceedings in court and that that would result in violation of her constitutional rights to due process of law . . . ." Appellant complained that "the pain was making [her] sick" and that she "shouldnt even be in a courtroom." However, appellant said that she was "no longer taking pain medications . . . ."
The trial court responded, "[T]he only information I have from a physician is that she can sit but for no longer than an hour and then she needs to stand. If any time she needs to stand during the course of this trial Im going to permit her to stand, and Ill simply explain to the jury shes got a back issue that requires her to stand more frequently." The court told appellants counsel to let it know whenever her client needed to take a break. "[I]f it takes a little longer to try the case because we need to take more frequent breaks we will do that . . . ." The trial then resumed.
Appellant contends that, by proceeding with the trial despite appellants protestation that she was in severe pain, the trial court denied her the constitutional right "to be both mentally and physically present at trial." "`[T]he accused person must be both physically and mentally present. Mere physical presence without mental realization of what was going on would obviously be of no value to the accused. A defendant in such condition would be unable to confer with or assist counsel, unable to testify, and without ability to understand the nature of the accusation or the mechanics or consequences of the trial. [Citations.] Therefore, a trial court does not possess discretion to proceed with trial while the accused is not mentally, as well as physically, present. [Citation.]" (People v. Avila (2004) 117 Cal.App.4th 771, 777.) "Cases in which the accused was determined to be `mentally absent from trial are rare and involve extreme situations." ( Id., at p. 779.)
We reject appellants claim of constitutional error. The trial court did not abuse its discretion in impliedly determining that appellant was mentally present. Nothing in the record suggests that appellant "was irrational or incoherent or that [she] was in such a general state of collapse that [she] suffered periods of unconsciousness or semiconsciousness. . . . No documentary or testimonial evidence was produced supporting [appellants] statements concerning [her] physical, mental or emotional condition." (People v. Avila, supra, 117 Cal.App.4th at pp. 779-780, fn. omitted.) Nor was any evidence presented that a medical professional "deemed [her to be] in urgent need of immediate medical treatment or . . . unfit to continue trial." ( Id., at p. 780.) The only medical professional to voice an opinion was Dr. Cooper, and he merely said that she needed a 15-minute break every hour. "That [appellant] may have been somewhat distracted by pain and other symptoms of physical distress does not establish incompetence or mental absence. [Citation.]" ( Ibid .)
Moreover, appellant told the court that she was "no longer taking pain medications." No evidence was presented that appellant was unable to take pain medications or that such medications would not have alleviated her pain. A defendant should not be entitled to a suspension of trial proceedings because of pain without any showing that she is unable to take pain medications or that such medications would be ineffective.
Since the trial court did not abuse its discretion, we need not consider respondents contention that appellant waived the mental presence issue by failing to formally move for a mistrial.
Denial of Request to Discharge Counsel
Appellant was represented by privately retained counsel. On the third day of trial, appellant expressed dissatisfaction with counsel. She requested a "two-month continuance" to enable her to retain new counsel. Appellant said that she had found an attorney who was willing to take her case, but "he needs a month to prepare." The trial court denied appellants request for a continuance, which it construed to be a motion for a mistrial. The court stated: "Weve impanelled 14 jurors, weve taken testimony already, this is the first Ive heard of your interest in having another attorney represent you . . . ." Appellant contends that the trial court deprived her of the constitutional right to counsel of choice."
`The right to counsel of choice is one of the constitutional rights most basic to a fair trial. " (People v. Ramirez (2006) 39 Cal.4th 398, 423.) "A nonindigent defendants right to discharge his retained counsel, however, is not absolute. The trial court, in its discretion, may deny such a motion if . . . it is not timely, i.e., if it will result in `disruption of the orderly processes of justice. [Citations.]" (People v. Ortiz (1990) 51 Cal.3d 975, 983.)
The trial court did not abuse its discretion in denying appellants request for a two-month continuance so that she could retain new counsel. Witnesses had been subpoenaed, a jury had been empaneled, and testimony had been heard. The court could have reasonably concluded that, in these circumstances, the requested continuance would result in "`disruption of the orderly processes of justice. " (People v. Ortiz, supra, 51 Cal.3d at p. 983.) Moreover, in view of the earlier denial of appellants motion for a continuance because of her back problems, the court could also have reasonably concluded that her expressed desire to retain new counsel was a subterfuge employed to delay the trial.
Disposition
The judgment is affirmed.
We concur:
GILBERT, P.J.
PERREN, J.