Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR022307
CANTIL-SAKAUYE, J.
In this appeal we are called upon to decide whether a trial court abused its discretion by failing to continue or extend a trial to a previously reserved “relief valve day.” We conclude an abuse of discretion has occurred.
A jury convicted defendant James Lester Price III of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession for sale of methamphetamine (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of paraphernalia (Health & Saf. Code, § 11364), possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), damage to personal property (Pen. Code, § 594, subd. (b)(2)), escape from a peace officer after being lawfully arrested (Pen. Code, § 836.6, subd. (b)), and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)).
Defendant admitted prior strike, on bail and prior prison term allegations, and pled guilty to two counts of driving on a suspended license with a prior conviction (Veh. Code, § 14601.2, subd. (a)). The trial court sentenced defendant to 12 years and four months in prison and a consecutive one-year term in the county jail.
On appeal, defendant contends the trial court erred in denying his motion to continue the trial and his subsequent motion to extend trial an additional day. We agree that the trial court’s denial of the defense motion to extend or continue the trial an additional day was an abuse of discretion. We reverse the convictions for possession of methamphetamine, possession of methamphetamine for sale, transportation of methamphetamine, and possession of marijuana, vacate the sentence, and affirm the remaining convictions.
BACKGROUND
June 30, 2005 Incident
After a vehicle stop of a red Toyota pickup truck, Sergeant Ronald Lewis of the Susanville Police Department asked defendant, the driver, if he had any drugs or weapons in his truck. Defendant replied, “No, you can search me and the vehicle.”
Defendant was searched, and Sergeant Lewis found a baggie containing .86 grams of methamphetamine in his front pocket. At the time of the stop and arrest, defendant was wearing a black T-shirt displaying an iron cross with writing inside the cross.
July 9, 2005 Incident
Lassen County Sheriff’s Deputy Michael Carney spotted defendant, who he knew had a suspended license, driving a red Toyota pickup truck. Carney turned his car around to make a traffic stop, but defendant had apparently driven down a dirt road. He followed a trail of dust until he spotted defendant headed east on Cheryl Drive.
When Carney got to Cheryl Drive, defendant’s truck was stopped and both doors were open. Defendant and another male were standing by the truck, while two teenage boys, C.L. and D.C., were close by next to a broken down dune buggy. As Carney pulled up, he noticed defendant was carrying a black duffel bag near his waist.
According to Carney’s testimony, defendant threw the duffel bag into nearby sagebrush while the other man ran towards the highway. Carney drew his pistol and ordered defendant to the ground. The two juveniles ran away when Carney drew his gun.
Carney then handcuffed defendant behind the back, helped him up off the ground, and took him to the patrol car.
After depositing defendant in the patrol car, Carney went to the sagebrush, found the duffel bag, and returned to the patrol car with the bag. Carney searched the bag while defendant looked on from the patrol car. When Carney pulled out a pair of shorts, defendant became very agitated and started to bounce around. Inside one of the shorts’ pockets was a plastic bag with a large amount of a yellowish white substance.
Carney also found in the duffel bag a small plastic bag with a green leafy substance and a black T-shirt with a cross on it with some kind of writing, along with a bottle of alcohol, some CD’s and more clothes of varying sizes. The black T-shirt was identified in court as the same type of shirt as the one worn by defendant during the June incident. The parties stipulated that the first plastic bag contained 80.95 grams of methamphetamine and the second bag had 1.59 grams of marijuana.
Carney put these items in his patrol car and then was approached by Steve Idzinski, who asked if he could retrieve his dune buggy from the scene. After Carney answered Idzinski, he started to interview the juveniles until he saw defendant running through the sagebrush. Carney ran down defendant and subdued him.
As he escorted defendant back to the patrol car, Carney noticed the right rear window had been kicked out. Carney searched inside defendant’s truck and found a sunglass case containing a glass pipe commonly used for smoking methamphetamine, a digital scale, a fanny pack containing eight or nine clear plastic baggies marked with a green shamrock, and a letter addressed to defendant’s brother.
Carney also searched where defendant had been prone, finding a marijuana pipe, a lighter, and a pair of black sunglasses. Defendant was searched at booking; he had cash in various denominations totaling $1,019.16. An expert on narcotics testified that, based on the quantity of methamphetamine seized, the cash found on defendant, the presence of clear baggies and a digital scale, the methamphetamine was possessed for the purpose of sale.
The Defense
Defendant testified, asserting he was the victim of a setup by Deputy Sheriff Carney and was wearing another person’s clothes at the June 2005 arrest. On June 30, defendant had been staying at the home of Jeannie Farr. Among the other people staying at the Farr residence was defendant’s friend Mark McGregor, who was on parole.
Farr asked defendant to drive to the store to get some cigarettes. Defendant took the red Toyota truck, which he shared with another person. Defendant’s clothes were being washed, so Farr provided him with another person’s clothes for the trip. Defendant was stopped by Sergeant Lewis while he was wearing these clothes, and he had no idea there was methamphetamine in the pants he was wearing.
On July 9, 2005, defendant was driving to buy some cigarettes at the store when he picked up McGregor. Defendant wanted to stop after spotting Carney, but McGregor told him to keep driving, so defendant turned down a dirt road towards the house of his friend Vinnie. Defendant then stopped the truck to help two youths by a broken down sand rail. As he went to the back of his truck to get a tow strap, defendant noticed McGregor was running for the sagebrush. Carney, who was coming around the corner, drew his gun and yelled “Prone out” to defendant.
Defendant denied possessing the duffel bag, which he claimed Carney found in the sagebrush. He became very agitated and escaped when Carney found the methamphetamine in the shorts because defendant had nothing to do with the duffel bag or its contents. He admitted to owning the marijuana pipe and the glasses found on the ground, but denied owning any of the items seized from the truck. Defendant was carrying a large amount of cash because there were no banks in Doyle and he needed $800 in cash to secure a new place for him to live with his wife.
The Defense Motion to Continue the Trial Date
The trial was scheduled to run two days, Thursday, June 1 and Friday, June 2, 2006. The trial court expressed doubts that they could conclude within the two days allocated for the trial as the witness list indicated 18 separate witnesses. Defendant agreed with the trial court, and also mentioned that the schedule could keep one of his potential witnesses, who was in Reno on June 2, from testifying, and that another potential witness, who lived out of the county, would be seriously inconvenienced if he had to come back because the trial ran over the allotted time. Defendant moved for a continuance at the trial readiness conference. Defendant’s written motion indicated that he had not yet received the subpoena back from the court for one witness, D.C., who lived more than 150 miles away from the place of the trial, rendering his attendance uncertain without a continuance.
The prosecutor informed the trial court he did not expect his case to last longer than six to six-and-one-half hours. The trial court denied the motion for continuance, noting that the next available trial date was Thursday, June 8, and extending the trial for another six days would inconvenience the jurors. Thus, the court noted that if trial were not completed on June 2, they could conclude it on June 8. The court left June 8 open as a “relief valve day” if the trial ran too long, but it expected counsel “to be quite earnest in keeping to their original two-day estimate for trial.”
Defense counsel informed the court this did not solve the problem of potentially missing or inconvenienced witnesses. The court replied, “Unfortunately that’s just a fact of life, if you will, in the process.”
Defense counsel then told the court that in light of this decision, defendant would be pleading guilty to the counts stemming from the June 30 incident. There was no agreement regarding the other charges, but counsel told the court his client was willing to admit the charges related to June 30.
The prosecutor objected, arguing that removing these charges would seriously hamper his case regarding the July 9 incident. The trial court rejected the prosecution’s argument, but did not accept defendant’s plea to possession of methamphetamine when defendant denied knowing that he possessed methamphetamine.
The Defense Motion to Continue or Extend the Trial to the Third Day
The trial started on June 1, and the prosecution rested by 10:00 a.m. on June 2. At the conclusion of the prosecution’s case, defense counsel requested that the trial be extended to a third day, June 8, 2006, so that he could serve the witness who was an eyewitness to the incident of July 9, 2005. He explained to the trial court that the first subpoena had been unsuccessful in securing D.C., who lived outside the county, because the servers were having trouble locating him. Defendant provided the servers with a physical address for D.C. and the servers phoned the telephone number given for the D.C. residence, but no one returned their messages.
Counsel explained that he got a second subpoena for D.C. to appear on June 8. The subpoena was scheduled to arrive in Fresno at 10:30 a.m. that day (June 2), and the process servers would make a rush service if they could locate the witness. The trial court denied the motion to continue. It thought defendant was “very unlikely” to get D.C. to testify and the court was unwilling to extend the trial “in the hopes of locating” this witness, whom the court felt would just “as soon not be called and come to court.” Counsel made an offer of proof of D.C.’s testimony, which would assert defendant did not possess the duffel bag when Deputy Sheriff Carney appeared.
DISCUSSION
Defendant contends the court’s refusal to grant a continuance deprived him of effective assistance of counsel and denied him the right to a fair trial. We agree that the trial court abused its discretion when it denied the continuance or extension of the trial into the third day reserved for trial. Thus, it is unnecessary for us to address defendant’s similar claim as to the court’s denial of his initial motion to continue.
We review a ruling on a motion for a continuance for an abuse of discretion. (People v. Wilson (2005) 36 Cal.4th 309, 352.) In order to show the court abused its discretion in denying a continuance in the midst of trial, the defendant must demonstrate all of these things: “that he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citation.]” (People v. Howard (1992) 1 Cal.4th 1132, 1171-1172.)
Defendant has met all of these requirements. The trial court concluded defendant had been diligent in attempting to secure the witness. According to the offer of proof, D.C., a disinterested third party to the incident, would corroborate defendant’s testimony that he never had the black duffel bag. The ownership of the duffel bag was critical, as it held the shorts in which the 80.95 grams of methamphetamine were found. This methamphetamine formed the basis of the two most serious counts against defendant--possession for the purpose of sale and transportation of methamphetamine. Without D.C.’s corroborating testimony, the defense to these charges centered on a test of credibility between the defendant and Deputy Sheriff Carney, a law enforcement officer, a challenging prospect for any criminal defendant.
Nor were there other means available for securing corroborating evidence for defendant’s testimony. Of the two other individuals present during the July 9 incident, McGregor could not be located, and the other, C.L., is not mentioned. D.C. was defendant’s last, only hope.
The trial court’s conclusion that defendant was not likely to secure D.C.’s presence, is unsupported by the record. Defendant and the prosecution were both initially unsuccessful in serving D.C. because they had been given an old address. Nothing in the record establishes that the witness was in hiding or otherwise beyond service.
The court’s final reason for denying the continuance, convenience to the jury, is insufficient in light of the reason for the continuance motion. Defendant asked the court to continue the trial to a day the court had already set aside in case the trial ran over two days. Extending the trial to this already reserved day simply cannot be considered a substantial inconvenience to the court or jury. “[T]he trial court’s duty to conduct judicial business efficiently cannot trump defendant’s right to present his defense in a manner he desires, particularly where accommodating him . . . would have had only a slight impact on efficiency.” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
Although we conclude the denial of the continuance motion was an abuse of the trial court’s discretion, reversal of all of his convictions is not warranted. The duffel bag contained 80.95 grams of methamphetamine, the marijuana, and a black T-shirt similar to the one worn by defendant during the June 30 incident. D.C.’s testimony, which allegedly would have supported defendant’s claim that he did not own the bag, was clearly material to the possession of methamphetamine for sale, transportation of methamphetamine, and possession of marijuana charges; we therefore reverse defendant’s convictions on those charges.
D.C.’s testimony about possession and/or ownership of the duffel bag is also relevant to the drug charge stemming from the June 30 incident. The defense to this charge was defendant was wearing borrowed clothes that night. Since the duffel bag contained a distinctive black T-shirt very similar to the one worn by defendant on June 30, D.C.’s testimony would aid the defense on the drug charge stemming from the June 30 traffic stop. We therefore also reverse defendant’s conviction for possession of methamphetamine on June 30. However, as D.C.’s testimony would not be relevant to the other charges, we affirm the remaining convictions.
Since we are reversing the principal term, we shall also vacate the sentence.
DISPOSITION
Defendant’s convictions and sentences for possession of methamphetamine, possession of methamphetamine for sale, transportation of methamphetamine, and possession of marijuana are reversed and the sentence is vacated. If, within 30 days after this court issues its remittitur, the People have not filed and served an election to retry the possession of methamphetamine, possession of methamphetamine for sale, transportation of methamphetamine, and possession of marijuana counts, the trial court shall resentence defendant accordingly. If the People file an election to retry these counts, the trial court shall resentence defendant on all counts after the retrial. (See People v. Beck (2005) 126 Cal.App.4th 518, 526; see also Pen. Code, § 1382, subd. (a)(2).) In all other respects, the defendant’s convictions are affirmed.
We concur: SCOTLAND , P.J., DAVIS , J.