Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles Superior Court No. LA050510. Martin L. Herscovitz, Judge. Judgment affirmed; petitions denied.
William D. Farber, 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, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
Theodore William Ray challenges his conviction for two counts of making criminal threats on the ground the trial court abused its discretion when it refused to grant a further continuance to allow Ray’s counsel to prepare for sentencing. In two petitions for writ of habeas corpus (case No. B209580 filed July 28, 2008, and case No. B210830 filed Sept. 22, 2008), which are considered with this appeal, Ray alleges ineffective assistance of counsel and multiple errors committed by the trial court in sentencing, among other things. We affirm the judgment and deny both petitions.
FACTS
Karen Guerrero began a relationship with Ray in January 2004 and became pregnant with his child. At all times during their relationship, Ray was married to another woman. Guerrero and Ray had a troubled relationship, which resulted in an April 19, 2006 information against Ray for two counts of criminal threats. (Pen. Code, § 422.) The information also alleged two prior felonies within the meaning of section 1203, subdivision (e)(4). A jury trial was held from November 13 to November 16, 2006.
All further section references are to the Penal Code.
A. Prosecution
At trial, Guerrero testified that Ray was a very jealous person and became violent when she wore a short skirt or a sexy blouse. According to Guerrero, Ray even accused her of having a sexual relationship with her father. Guerrero ended their relationship shortly after it began when Ray tried to strangle her in a jealous rage after he noticed she had a video of a movie with Antonio Banderas. When Ray continued to threaten Guerrero and her oldest son (from a previous relationship), she obtained a restraining order against him. However, Guerrero agreed to see Ray again after she gave birth to his child on November 15, 2004. He told her he would provide financial help if she removed the restraining order. His jealousy continued to affect their relationship. He frequently called her a prostitute and hit her. He became upset and told her he would harm her son and kill her if she did not do as he said in the way she dressed and acted. In August 2005, she again tried to end the relationship.
On September 12, 2005, Guerrero called Ray to tell him that she was pregnant with their second child but that she did not want to see him. On September 19, 2005, Ray left a message on Guerrero’s cell phone, threatening to take her son. He told her he was watching her and saw that the lights in her apartment were on at 10 o’clock the night before. Ray continued to leave threatening messages on her cell phone. Recordings of these messages were played to the jury and the transcripts were admitted into evidence. Guerrero did not call the police because she thought they would not help her since she revoked the restraining order. She did call the police on or around October 11, 2005, when Ray knocked on her door. Guerrero hid in the bathroom with her children when she recognized Ray’s footsteps. On November 4, 2005, Ray visited Guerrero in the hospital after she lost the baby.
Guerrero’s friend also testified that she saw bruising along Guerrero’s throat and legs in March 2004. Another friend testified that Ray tried to pull Guerrero out of a SUV through the window by her arms while calling her a prostitute.
B. Defense
Patricia Marquez, testifying on behalf of the defense, stated that it was Guerrero who was jealous and caused problems in the relationship. Guerrero accused her of having an affair with Ray and threatened to plant drugs in her car in November 2005. Marquez further testified that Guerrero told her she had set a trap for Ray because he would not divorce his wife. Ray testified that when he broke up with Guerrero to reconcile with his wife, Guerrero called him constantly, trying to reconcile with him. He said he was drunk when he made those threatening phone calls but had no intention of following through with them. He denied ever hitting, choking or kicking her. He also testified Guerrero threatened to harm his wife and take his son back to Guatemala so he would never see him again. As a result, he obtained a restraining order against her. Ray presented evidence of messages left on his home phone by Guerrero, saying she loved him. One of Ray’s coworkers testified that a woman, who sounded like Guerrero, called Ray at work repeatedly.
C. Verdict
On November 16, 2006, the jury found Ray guilty of two counts of making criminal threats. Sentencing was delayed for one year after the verdicts were returned as a result of numerous motions filed by Ray, including a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and motions to discharge his counsel, to represent himself, to access juror information, and to set aside the information. After the trial court granted Ray’s motion to appear pro. per.,he also moved for a new trial and to reduce the felonies to misdemeanors. In support of his new trial motion, Ray was assigned five private investigators to conduct interviews of key witnesses and asked for, but was denied, an expert forensic analyst and an expert forensic toxicologist. Ray also moved to disqualify the trial judge and recuse the entire Van Nuys branch of the district attorney’s office on grounds of prosecutorial misconduct. Ray was also granted numerous continuances.
DISCUSSION
I. Appeal
A. Sentencing
After Ray’s motions were heard, argued, and denied, Ray asked for and was appointed new counsel for purposes of sentencing. As a result, the court revoked his pro. per. status and appointed Randalf Kincaid to represent Ray at sentencing, granting him a two-week continuance to prepare.
“THE COURT: [¶] . . . [¶] When can you be ready for the sentencing in this case, Mr. Kincaid?
“MR. KINCAID: Realistically, your honor, I would say the earliest would be the 27th --
“THE COURT: That’s --
“MR. KINCAID: -- November.
“THE COURT: -- Two weeks from today.
“MR. KINCAID: Yes. Realistically, that would be the first --
“THE COURT: Two weeks from yesterday.
“MR. KINCAID: Two weeks from yesterday. Yes. [¶] And I had advised Mr. Ray that it would probably be a week to two weeks. I think that’s the first day that I could do it. Mr. Ray advised me that he would prefer to have me refer this case to the ICDA [Indigent Criminal Defense Appointment] Panel and have them appoint someone with the hope that they could do it before that date.
“THE COURT: Okay. You’re the attorney to be assigned.
“MR. KINCAID: Thank you, your honor.
“THE COURT: If you’re qualified, you have been appointed.
“MR. KINCAID: Thank you. I am qualified.
“THE COURT: So you’ll be ready for the sentencing in this case on November 27th?
“MR. KINCAID: I believe so, your honor.
“THE COURT: November 27th for probation and sentence, good cause appearing to continue the case to that day.”
On November 27, 2007, Kincaid asked for another continuance since he had not reviewed the court file in the intervening two weeks. He was also not able to meet with Ray until the previous day, due to the Thanksgiving holiday the week before. Kincaid further requested a copy of the jury trial proceedings and the court file to “make a reasoned argument regarding [Ray’s] request for sentencing.” The trial court denied the continuance and the request for the court file, stating he had warned counsel and Ray that no further continuances would be granted. Nonetheless, the court did provide a transcript of Guerrero’s jury testimony and the preliminary hearing and allowed Kincaid to review those documents while other matters were heard.
Later that day, Kincaid “reluctantly” represented Ray in the sentencing hearing even though he believed “it could be ineffective assistance of counsel.” Because he was not aware the court had previously told Ray no further continuances would be granted, Kincaid stated he would have asked for more time initially. In his statements, Kincaid requested leniency and probation from the court on the ground Ray supports a wife and two children. Kincaid further incorporated the statements and arguments made in all of the proceedings throughout the court case, including the motion for new trial and the motion to reduce the felonies to misdemeanors. Ray made a lengthy statement on his own behalf regarding the support he provides for his parents, his wife, and his children. He also continued to profess his innocence and contend the evidence was insufficient to support the verdict. He pleaded for leniency based on a prior conviction, which was overturned on appeal.
On November 27, 2007, Ray was sentenced to the upper term of three years in state prison for the first count of criminal threats and to a consecutive term of eight months in state prison (one-third of the middle term of two years) for the second count. The court imposed a restitution fine of $400 on Ray and suspended an additional $400 parole revocation fine. (§§ 1202.4, subd. (b), 1202.45.) The court also ordered Ray to comply with the DNA and fingerprint requirements of section 296 and awarded a total of 607 days of presentence custody credits. The trial court denied probation due to Ray’s prior history of escalating threats and violence.
B. The Trial Court Did Not Abuse Its Discretion to Deny a Further Continuance
Ray contends the trial court abused its discretion in denying Kincaid’s request for a continuance. “A ‘trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citation.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.’ [Citation.] Such discretion ‘may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.] ‘To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 670, disapproved on another ground in People v. Doolin (Jan. 5, 2009, SO54489) __Cal.4th__ [p. 49, fn. 22].)
We find no abuse of discretion here and agree with the trial court that no showing of good cause was presented. Kincaid confirmed he would be ready by November 27. At the hearing, Kincaid failed to demonstrate he lacked a reasonable opportunity to prepare. Indeed, he met with Ray prior to the hearing and was afforded the opportunity to review the probation report, the transcript of Guerrero’s testimony, and the preliminary hearing transcript. He further knew enough to present mitigating facts—that Ray was responsible for his wife and two children and that two of his prior convictions were overturned on appeal—in a plea for leniency. Further, Ray and his father were afforded an extensive opportunity to present their case for probation.
Ray argues, “[h]ad counsel been given time to review the trial transcripts, he could have offered substantive arguments to counter the aggravating circumstances mentioned in the probation report or by the prosecutor either why probation was more appropriate than prison or why aggravated and consecutive terms in this case were too severe.” However, Ray fails to specifically show what “substantive arguments” could have been given to counter the aggravating circumstances found by the court. In any event, a review of the trial transcripts would have provided no help as the trial court specifically noted that it would “cite no factors in aggravation concerning what occurred during the trial . . . .”
This matter is factually distinguishable from the cases relied upon by Ray. In People v. Fontana (1982) 139 Cal.App.3d 326, 332, the defendant committed a crime in another county while on probation. A hearing to revoke defendant’s probation was set, but because defendant was being prosecuted in the other county, defense counsel requested the revocation hearing trail the criminal trial and requested a continuance to prepare. “Counsel explained to the court on August 14, 1981, the date set for the hearing, that he was not prepared and went into considerable detail in explaining not only what had been taking up his working hours (a trial of a difficult case and in the week previous a homicide trial) but also what he believed he had to accomplish before he could proceed in a competent manner (e.g., reading the 150-page packet of materials including the 70-page preliminary hearing transcript, discussion with his client, reading his client’s lengthy statement to his trial counsel, comparing the police report to the testimony given at the preliminary hearing and reviewing suggestions made by his client).” (Id. at pp. 332-333.) The request was denied and defendant’s probation was revoked.
Defendant sought a writ of habeas corpus and appealed the order. On appeal, the court found the trial court had prejudicially abused its discretion in denying the motion for a continuance. Although “[a] criminal defendant is entitled to a prepared counsel, not merely to a counsel who had time to prepare[,] [¶] . . . [¶] . . . nothing in this opinion should be read as intimating that a mere representation of unpreparedness is sufficient to require the trial court to postpone . . . hearings or trials.” (People v. Fontana, supra,139 Cal.App.3d. at pp. 333-335.)
In Hughes v. Superior Court (1980) 106 Cal.App.3d 1, 3-4, a public defender was found in contempt of court for refusing to proceed to trial. The public defender, who had been assigned to two complex cases that were scheduled for trial at the same time, had been told that all else being equal, the older of the two would go to trial first. As a result, he prepared for the other case. The trial court found there was insufficient reason or excuse for the public defender’s refusal. (Id. at p. 5.) A writ of prohibition was issued on the ground the defendant’s constitutional right to adequate representation at trial would have been violated had the public defender proceeded to trial unprepared. (Ibid.)
Here, there was no good cause presented for the continuance. Unlike defense counsel in People v. Fontana and Hughes v. Superior Court, Kincaid failed to explain, much less in considerable detail, why he was unprepared and what he hoped to accomplish before proceeding. There is no indication that Kincaid’s review of the trial transcript would have better prepared him for the hearing or changed his argument to the court. As discussed above, he had met with his client, reviewed relevant transcripts and reviewed the probation report.
C. No Prejudice Was Shown
Without the opportunity to review the court file and present evidence of mitigation, Ray claims he was effectively denied his right to effective assistance of counsel. However, Ray has shown no prejudice resulting from the denial of the continuance. (People v. Zapien (1993) 4 Cal.4th 929, 972.) According to Ray, Kincaid needed to be familiar with the case and “ordinarily must go beyond the probation report and muster any additional facts relating to the nature, seriousness, and circumstances of the crime, the vulnerability of the victim, and, possibly, whether the crime was committed because of unusual circumstances.” As discussed above, Ray provides no indication what more his counsel could have done or argued at the sentencing hearing.
II. July 28, 2008 Habeas Petition
Ray filed a pro se petition for writ of habeas corpus on July 28, 2008, seeking review of the following issues: (1) whether the trial court erroneously applied a “mere 1/3 time conduct credit” rather than half-time credit; (2) whether the four years served by Ray as a result of two prior felony convictions (which were reversed on appeal) should be applied as a credit in this case; (3) an immediate parole-free release based on time credits served from the prior reversed conviction; (4) whether submission of DNA samples “is unconstitutionally . . . cruel and unusual punishment and [an] invasion of privacy, religious right and double jeopardy[;]” (5) whether “this Court receive[d] the pro per notice of appeal by Petitioner . . . moving the trial court to create an extended version of the clerks transcripts and all Reporters Transcripts for a full and fair appellate review on appeal or by Petitioner’s writs[,] [i]ncluding all physical evidence tape recordings, micro tape cassettes, and all documentary evidence submitted, notes of the judge and clerk, any and everything [dealing] with Petitioner’s case . . . [;]” and (6) whether ineffective assistance of counsel at the time of sentencing deprived Ray of a full and fair sentencing hearing. After receipt of an informal response from the Attorney General and reply from Ray, we consider this petition with the appeal.
We first summarily dispose of Ray’s second, third, fourth, and fifth contentions as they have no basis in the law. (§ 2900.5, subd. (b) [“credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted”]; People v. Adams (2004) 115 Cal.App.4th 243, 257-258 [collection of DNA under § 296 not unconstitutional].) As to Ray’s first contention, we find the trial court properly calculated the presentence credits. Ray does not dispute that he served 405 days of actual presentence custody. Under the applicable formula, Ray was entitled to 202 days of conduct credit ([405/4] x 2=202) and 405 days of actual custody credit for a total of 607 days of credit. (People v. Smith (1989) 211 Cal.App.3d 523, 527.)
As to Ray’s sixth contention, a claim of ineffective assistance of counsel requires a defendant to show “(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288; Strickland v. Washington (1984) 466 U.S. 668, 693.) First, we do not see how Kincaid failed to act in the manner of a reasonably competent panel attorney. The record shows he met with Ray before the hearing; he had the opportunity to and did review portions of the court transcript and preliminary hearing transcript as well as the probation report; and he pleaded for leniency in his statement based on mitigating factors. Even if we accept that Kincaid lacked sufficient time to fully prepare, Ray provides us with no guidance as to what other mitigating circumstances existed that Kincaid could have presented to the court. Ray’s contention fails because he has not shown that any of these alleged failures affected the outcome of the sentencing hearing. (In re Visciotti (1996) 14 Cal.4th 325, 351-357; Strickland v. Washington, supra, 466 U.S. at p. 693.)
III. September 22, 2008 Habeas Petition
Ray filed another petition for writ of habeas corpus on September 22, 2008, which duplicates the 322-page motion for new trial he filed in trial court. Ray’s new trial motion was denied after the trial court provided Ray with almost one full year to prepare, appointed five private investigators to conduct discovery in support of the motion, allowed Ray to supplement his motion, and allowed him to make a lengthy oral presentation in support of his motion. As an initial matter, Ray has failed to explain how the trial court erred in its ruling and whether this matter is even properly before us on a petition for writ of habeas corpus rather than in the related appeal. (See People v. Ault (2004) 33 Cal.4th 1250, 1269.) More importantly, we agree with the trial court that the contentions lack merit. The petition is denied.
DISPOSITION
The judgment is affirmed and the petitions for writ of habeas corpus (case No. B209580 filed July 28, 2008, and case No. B210830 filed Sept. 22, 2008) are denied.
We concur: RUBIN, Acting P. J., O’NEILL, J.
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.