Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 05SF0628 Gary S. Paer, Judge. Reversed and remanded.
Law offices of Jack M. Earley, and Jack M. Earley for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley A. Weinreb, Sabrina Y. Lane-Erwin, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
At oral argument, the Attorney General’s Office was ably represented by Alisa Admiral, a certified law student supervised by Deputy Attorney General Scott C. Taylor.
OPINION
SILLS, P. J.
INTRODUCTION
Kevin Frank Rasher appeals from the judgment sending him to prison for two years after a jury found him guilty of feloniously driving under the influence of alcohol, after which he admitted he had three prior convictions for the same offense as a misdemeanor. On appeal, he contends the trial court erroneously denied his request to substitute newly retained counsel after the date on which the trial was set to commence but long before the court and the parties actually began the trial. Because we agree this was error in violation of Rasher’s fundamental right to have retained counsel of his own choosing, we need not address his two other issues: that the court failed to instruct the jury on the defense of necessity sua sponte and that trial counsel ineffectively represented him by failing to ask for the necessity instruction. We reverse the judgment and remand for retrial.
I
FACTS
As we have determined a remand for retrial is necessary due to the court’s refusal to substitute retained counsel, we need not reiterate the facts of the case presented in the first trial. However, we review the facts pertinent to the issue of the substitution.
The felony complaint involving these charges was filed on June 9, 2005, and the court arraigned Rasher—who appeared with retained counsel—on the complaint on June 20, 2005. After several continuances on motion of the defendant and once by stipulation, the preliminary hearing was held on December 5, 2005. Rasher was arraigned on the information on December 19, 2005 and continued to be represented by retained counsel, Robert J. Wilson. A jury trial date was agreed upon for March 6, 2006. However, on February 3, 2006, Wilson declared a conflict and was relieved; the trial court appointed the Orange County Public Defender’s Office (public defender) to represent Rasher. The jury trial date of March 6 remained as set until March 3, when Rasher failed to appear on time, and a warrant was ordered but then recalled when he appeared later in the day. On March 6, the trial was continued to April 3, 2006 upon motion of the defense. On March 24, the jury trial date was again rescheduled for May 22, 2006 by stipulation. On May 22, the case was called, and the prosecution answered ready, although the defense, through a special appearance by a member of the Alternate Defender’s Office, announced the defense was not ready. The matter was trailed for two days.
Wilson was not present, but Stephen Steponovich specially appeared for him.
On May 24, the prosecution brought a motion to amend the information, adding the language that the three listed prior convictions occurred within 10 years of the present offense, thus satisfying the provisions of Vehicle Code section 23550. Rasher was immediately arraigned on the amended information, pleaded not guilty with counsel from the public defender, and the trial was reset for May 30, 2006. On May 30, both parties answered ready for trial, which was trailed to the next day. The following morning, Rasher appeared with his appointed attorney and a private attorney, Jack M. Earley. Rasher explained to the court that he wanted to retain Earley’s services. The case was trailed two more days by the court. On June 2, 2006, Rasher appeared and informed the court he would be retaining the services of Earley, and the arrangements were to be concluded that morning. On June 5, 2006, Earley appeared with Rasher, informing the court he had been retained and requesting substitution of counsel. The court informed him that the case was already a year old and must proceed to trial within 30 days. Earley responded that he could not meet that timetable and that the case required 45-to-60 days for investigation which had not been done as yet by the public defender. The court denied the motion to substitute, stating it was convinced that the case would not get to trial for another six months if the substitution was permitted, although Earley reiterated his earlier assessment that approximately 45 days were all that was needed for investigation and preparation. The court rejected this assessment, noting Earley’s “busy schedule.” (See also fn. 3, ante.)
At this hearing, Earley informed the court he was meeting with Rasher the next morning to sign the retainer. The trial court responded that the public defender “is going to remain on the case until someone comes in and tells me that they are formally retained, with the caveat that I am not going to be even – let’s say hypothetically [Earley was] retained and you came in tomorrow on day two or three of ten, I probably wouldn’t allow you on the case if you’re going to tell me ‘I need four months.’ [¶] . . . If you could get retained and try the case within 30 days, that’s fine. . . . [¶] But if you come in and say, ‘you know, I need four or five months,’ because I’m aware of your trial schedule, because I have a case with you on another two-defendant case, where we put that out a long time. So I’m certainly not going to be aging the case that much longer, even if you were on the case. So you may not be available to take this case due to the present scheduling of the case. [¶] I don’t know why Mr. Rasher at the eleventh hour wants to get a new lawyer. I view this as possible tactic to age the case.” (Italics added.) Earley informed the court at this point that Rasher had consulted with him in April but that he needed more time to “get money together[.]” The court firmly replied that he would not permit a substitution if a trial could not be set before August or September.
Earley informed the court Rasher had approached him about substituting for the public defender over a month before the date he was retained, but the actual payment and signed agreement did not occur until June 2, 2006.
Earley’s projection for necessary investigation was later conceded by appointed counsel when the Marsden motion resulted in that attorney bringing a motion to continue the trial to complete necessary investigation.
Apparently, Earley had a homicide trial set before the same trial court with an estimated length of two weeks, prompting the court’s conclusion that Earley’s “busy schedule” would prevent him from proceeding to trial on Rasher’s case within 30 days. (See also fn. 3, ante.)
The parties stipulated to start the trial on June 8, following various Marsden issues’ resolution. However, on June 8, the public defender filed a motion to continue the trial for two weeks to complete further investigation, which was granted to June 26. On the morning of June 26, Rasher was arrested for driving to court while his license was suspended, necessitating another continuance to July 10 to commence trial. On June 27, Rasher again sought to substitute retained counsel of choice, which was denied for the reasons “previously stated on the record.” Even after the public defender expressed Rasher’s desire to substitute retained counsel whether bail was granted or not, the trial court responded, “that issue has already been litigated. The court of appeal has already rendered their decision on that. [See fn. 8, ante.] I feel no need to change or deviate from their decision or my prior decision. [July 10], the case is going to go to trial based on your request that that is when you’re available to try it.” (Emphasis added.)
See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On June 8, the public defender brought her motion to continue Rasher’s trial. At the same time, retained counsel filed a petition for writ of mandate with this court on behalf of Rasher, requesting a stay of the trial set for June 8, 2006. In the petition, he contended the motion to substitute was erroneously denied, attaching a copy of the hearing on the Marsden motion which detailed the investigation deficits alleged by Rasher. This panel perfunctorily denied the petition on June 8, 2006, but the denial was clearly not on the merits. Moreover, we did not know at that time the court was not prepared to go to trial on June 8, nor indeed that it would immediately grant a continuance to appointed counsel when it had absolutely refused the similar request made by retained counsel.
It appears that the arresting officer was waiting at Rasher’s home to observe him leave the residence in the vehicle by himself. The officer followed him to the courthouse, and when the parties appeared in court for the trial, he was placed under arrest for driving with a suspended license. The deputy district attorney then requested Rasher’s bail be increased to $100,000 due to his failure to obey all laws. This request was granted, but only for 24 hours: The trial court granted a defense motion to reduce bail to $50,000 on June 27, 2006. It was at this appearance that Earley again requested substitution of counsel.
Nonetheless, trial did not commence until July 12, a full 37 days after the first denial of his formal motion to substitute, and 42 days after Earley first appeared before the trial court and verbally requested substitution within 24 hours.
II
DISCUSSION
Denial of the Motion to Substitute Counsel
Rasher contends the trial court erred when it denied his motion to substitute newly retained counsel for appointed counsel two days after the trial was to start, although the case was being trailed and the court was not ready to commence trial. The court denied the substitution after newly retained counsel informed the court a continuance of 45-to-60 days was necessary to properly investigate and prepare for trial. The sole reason for the denial was that the court insisted the trial commence within 30 days because the case was over a year old and the new attorney was “the second private attorney that he’s brought in . . . .”
But the case was not a year old. As noted above, the original complaint was filed June 9, 2005, which was the commencement of the case. Rasher was arraigned on the charge on June 20, 2005. In summary, the case was just under a year old at the time Earley made his first request for substitution. The case took six months to merely reach an arraignment in superior court. Rasher was represented by retained counsel for the first 7 of 11 months, who, due to an unspecified conflict, was replaced with the public defender. After four months of representation by the public defender, Rasher appeared with Earley after the date on which the trial was supposed to start but had not commenced because the court had trailed the matter due to its calendar and a lack of a courtroom. Retained counsel asked for a continuance of 45-to-60 days to complete necessary investigation. The trial court denied this request, yet again trailed the matter and then continued it at the request of the public defender, resulting in a total delay of 37 days from the denial of the formal substitution request.
A criminal defendant has the right to retain, appear and defend with counsel of his or her own choice. (See People v. Courts (1985) 37 Cal.3d 784, 789-790.) This fundamental right can only “‘be forced to yield . . .when it will result in . . . a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ [Citations.] The right to such counsel ‘must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.]” (Id. at p. 790; see also Morris v. Slappy (1983) 461 U.S. 1, 11-12 [“an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.”].) On review of a trial court’s denial of a substitution which would necessitate a continuance, we must affirm the ruling unless shown to be an abuse of discretion. (See People v. Pigage (2003) 112 Cal.App.4th 1359, 1367-1368.)
The defense has shown that, under the circumstances in this case, the trial court abused its discretion. The court refused Rasher’s reasonable request to substitute retained counsel when the court itself was not ready to proceed to trial, and appointed counsel was not ready to proceed on that day. Moreover, the court later granted appointed counsel a continuance to do the very investigation which retained counsel averred was essential but for which the court denied a continuance. Finally, it was not a situation in which a continuance of 45 days, as requested by appointed counsel, would have resulted in a serious problem for the court’s management of its caseload: The court’s calendar was so congested that it was unable to hear the matter on two occasions on which the case had been specifically set. Nonetheless, the court was absolutely adamant that the case should proceed to trial within a few days even though it was clear the trial court was not available to hear the matter.
The case may have been a simple “driving under the influence case . . . [made] a felony [solely] because [Rasher] had prior convictions[,]” as described by the Attorney General, but the actual delay in the trial’s commencement was not due to Rasher having failed to reasonably pursue retention of counsel. Rasher had retained counsel immediately upon the filing of charges, and that attorney remained on the case until after arraignment in superior court. Due to a conflict, he was replaced with appointed counsel who then represented Rasher for four months until Earley appeared and asked to substitute. During that four-month period, the case had been continued due to the prosecution’s needs and motions, the court’s needs, the defendant’s new arrest en route to court, and appointed counsel’s witness problems due to the court’s having trailed the case repeatedly.
Both the Sixth Amendment and due process of law guarantee a criminal defendant the right to be represented by retained counsel of his or her choice. (See Caplin & Drysdale, Chartered v. U.S. (1989) 491 U.S. 617, 624-625; People v. Lara (2001) 86 Cal.App.4th 139, 152; see also U.S. v. Gonzalez-Lopez (2006) __ U.S. __, __ [126 S.Ct. 2557, 2561].) Once retained, counsel must be given a reasonable opportunity to prepare for trial. (See People v. Courts, supra, 37 Cal.3d at 790.)
In Courts, a trial judge’s refusal to grant a substitution of counsel due to the need for a continuance resulted in the unconstitutional “‘interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources. . . .’ [Citation.]” (Ibid.) “‘Expeditious judicial administration’” can force the defendant’s choice of counsel to yield but only if the court first attempts “‘an accommodation reasonable under the facts of the particular case.’” (Ibid.) Denial of a continuance necessitated by retained counsel’s substitution is an abuse unless the defendant has been “‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ [Citation.]” (Id. at pp. 790-791, italics added.)
Neither situation was present here. “For this reason, [this trial court] should [have] accommodate[d] [the] requests—when they [were] linked to an assertion of the right to retained counsel—‘to the fullest extent consistent with effective judicial administration.’ [Citation.]” (People v. Courts, supra, 37 Cal.3d at p. 791.)
As was done in Courts, we must look to the reasons espoused by the trial judge at the time the requests were denied: The singular factor was that the case was reputedly a year old, and the judge feared that the substitution would result in a delay of six months when he mandated completion of trial within 30 days.
But the case was not a full year old and had been in the superior court for less than six months. Moreover, the court refused to grant the retained attorney’s 45-day continuance for preparation and investigation yet granted almost that much time to the public defender, even though that attorney had been representing the defendant for more than four months already. The bottom line was that the trial court refused to substitute a retained attorney on June 5 because it feared the case would not proceed to trial for another “six months” although counsel was only asking for 45-to-60 days’ continuance. In the end, the case did not proceed to trial for another 37 days—almost the entire time retained counsel requested—and the extent of that delay was due to necessary investigation (as established in the Marsden hearing) and the trial court’s unavailability. The trial court permitted appointed counsel to do further investigation after Rasher complained in his Marsden motion, but refused the same investigation time when retained counsel asserted its need on June 5.
This case was not the situation in which a criminal defendant speculates he or she will retain a particular attorney, nor was it a situation in which a defendant expresses his or her intention to obtain the funds necessary to retain an attorney. (See People v. Courts, supra, 37 Cal.3d at p. 791, fn. 3.) The attorney was retained. And it “cannot be said that [Rasher] was ‘unjustifiably dilatory’ in attempting to obtain the services of counsel of his own choosing[]” (id. at p. 791) as he obtained private counsel as soon as charges were lodged; following his first attorney’s conflict and withdrawal, he was in discussion to retain Earley within three months and had successfully retained him in four. As noted in People v. Crovedi (1966) 65 Cal.2d 199, 207, the defendant can only be held responsible for the absence of retained counsel when that absence is due to defendant’s personal lack of diligence. That was not the case here.
It must be emphasized that the trial court was not prepared to commence the trial, yet insisted that the defendant proceed to trial with an attorney appointed by the court instead of his chosen and retained counsel. This situation does not meet the definition of “expeditious judicial administration,” and the defendant’s personal right to chosen counsel preempts a trial court’s apparent preference of defense counsel.
III
DISPOSITION
The judgment is reversed, and the case is remanded for setting of a retrial.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.