Opinion
2d Crim. No. B164082.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN RITCHIE, Defendant and Appellant.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.
Steven Thomas Ritchie appeals his conviction, by jury, of two counts of burglary. (Pen. Code, § 459.) The trial court sentenced him as a "second strike" offender to a term in state prison of 19 years, 8 months. He contends the trial court erred when it denied his request for a continuance to allow a defense witness to be brought to court and to allow appellant to testify after his other witnesses had finished. There was no abuse of discretion and we affirm.
Facts
When Vickie Stanley got home from work on April 18, 2002, she discovered that her house had been burglarized and many items of personal property were missing. Stanley habitually locked her back door, which has a doggie door, before leaving the house. She noticed that it was unlocked when she returned home that evening.
In the early afternoon of April 19, 2002, Albert Zalecki returned home to find items missing from his house and garage. These included his coin collection, a laptop computer, money, jewelry and watches belonging to himself, his wife and his son. While looking around the garage, Zalecki noticed that his Samsonite suitcase was in the neighbors backyard. He retrieved the suitcase and found his coin collection. Returning to the back yard moments later, Zalecki saw appellant walking between his house and the neighbors. He yelled at appellant and chased him for about 35 feet. Appellant ran to a Datsun 300 ZX and drove away. Zalecki was unable to read the license plate because it was covered with a dish towel. He called police.
Within about 20 minutes, a police officer saw the car that Zalecki described. He followed the car until appellant, the driver, parked it and went inside the Seal Beach post office. When appellant came out of the post office, the police officer questioned him. The officer noticed a laptop computer in the back of the car and detained appellant. Zalecki was brought to the scene where he identified appellant, the car and many of the items found inside the car including his laptop, some jewelry and his watches. A search of appellants motel room yielded more stolen property, including items taken from Stanleys house.
The defense at trial was that the burglaries were committed by Cory, a man appellant became acquainted with at the request of police officers for whom he (appellant) worked as an informant. In April 2002, appellant was sharing his motel room with Cory. While appellant was sleeping on the morning of April 18, Cory used his car to commit the Stanley burglary. The next day, appellant drove Cory to the Zalecki house because Cory told appellant that he used to live there and needed to retrieve some of his belongings. Cory went into the house and returned to the car with the laptop and some other items. He told appellant to leave for a few minutes and then went back inside the house. Appellant drove to a fast food restaurant and returned about 15 minutes later. Appellant heard Cory tell him to leave again, so he did. He believed Cory would call on the cell phone when he needed to be picked up. Appellant did not notice that Zalecki was following him.
Appellant explained that he had befriended Cory in connection with his work as an informant for Los Alamitos Police Officer Rick Moore and Sergeant James Johnson from the Seal Beach Police Department. Moore and Johnson wanted information about Cory because they thought he was selling marijuana from a house near appellants parents house.
Sergeant Johnson corroborated little of appellants testimony. He testified that appellant worked for him in the 1990s as an informant. In December 2001, Johnson heard a radio dispatch that appellant was being arrested by Officer Moore for driving under the influence. He went to the location of the arrest "out of curiosity more than anything else . . . ." Appellant started providing information to Johnson because he wanted some help with the pending criminal charge. Primarily, appellant spoke with Johnson who relayed information to and from Moore. Johnson told appellant that Los Alamitos was interested in information about marijuana sales at a house located across the street from his parents house. Appellant provided some information that led to a search warrant. No drugs were recovered. Johnson could not recall whether appellant gave him a list of names or any specific individual mentioned by appellant, including Cory. Appellant testified that he provided Johnson with a list of drug dealer names and that Corys name was on the list.
The prosecution rested its case at about 2:30 p.m. on a Friday. Appellants trial counsel indicated that she would call Officer Moore, Sergeant Johnson and, after they had testified, appellant. The officers were not present, so the trial court instructed defense counsel: "The officers can testify. They can testify Monday morning. Lets put your client on now." Appellant began his testimony a few minutes later.
Sergeant Johnson testified on Monday morning. Officer Moore had been subpoenaed, but did not appear. Appellants trial counsel represented to the court that she "called him Friday, left a message, called his court liaison. [¶] This morning I called him again, I spoke directly with the court liaison for Los Alamitos Police Department. She said she had been sick so she hadnt collected her messages on Friday. [¶] She said she would try to contact Officer Moore. She left a further message saying she had called his cell phone and left a message, and thats where it stood. [¶] He had been on duty last night and was asleep but — so I dont — honestly I dont know if he is going to make it here. [¶] If not, I would — with the courts leave I would ask for more time, understanding the court doesnt want to do that and I would rest at that point." The court replied, "Im not going to give you more time. [¶] We quit early Friday so you could accomplish these things that were waiting for here today. [¶] Its now almost ten after 10:00, so if he is not out in the hallway Im going to deem you to have rested." When it became clear that Officer Moore was not present and that the prosecution had no rebuttal, the trial court gave its instructions to the jury.
Discussion
Appellant contends the trial court violated his right to due process by forcing him to testify on Friday afternoon and by denying his request for a continuance to secure the testimony of Officer Moore. We are not persuaded.
The trial court has broad discretion to "control the proceedings to ensure the efficacious administration of justice." (People v. Cox (1991) 53 Cal.3d 618, 700; see also § 1044; People v. Calderon (1994) 9 Cal.4th 69, 75.) This includes the broad discretion to determine whether good cause exists to grant a requested continuance. (People v. Michaels (2002) 28 Cal.4th 486, 525; People v. Jenkins (2000) 22 Cal.4th 900, 1037.) "To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witnesss attendance, that the witnesss 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.) A conviction need not be reversed unless the denial of a continuance is both an abuse of discretion and the cause of unfair prejudice to the defendant. (People v. Barnett (1998) 17 Cal.4th 1044, 1126; People v. Samayoa (1997) 15 Cal.4th 795, 840; People v. Cuccia (2002) 97 Cal.App.4th 785, 792.)
The defense may properly be deemed to have rested where no additional witnesses are available to testify and there is no showing of good cause for a continuance to secure their attendance. Where good cause exists, however, it may constitute an abuse of discretion to present the defendant with an "ultimatum to testify or rest his case . . . ." (People v. Cuccia,supra , at p. 792.) Discretion may also be abused where a defendant is deemed to have rested despite his diligence in preparing and presenting the defense, his reasonable surprise at the brevity of one witness testimony, and his ability to call additional witnesses after a few hours continuance. (See, e.g., People v. Blackburn (1982) 139 Cal.App.3d 761, 764-765; see also, People v. Schulz (1992) 5 Cal.App.4th 563, 573 [abuse of discretion to deny continuance to pro per defendant whose trial notes and legal files were lost by jail and prison officials shortly before trial].)
No abuse occurred here. Even assuming that defense counsel was diligent in her attempts to secure the attendance of Officer Moore, the record demonstrates that his testimony would have been cumulative of Sergeant Johnsons. Appellant and Johnson both testified that appellant spoke primarily with Johnson, who acted as a liaison to Moore. According to appellant, Johnson, not Moore, instructed him to watch the house and to befriend Cory. The record contains no offer of proof concerning the content of Moores expected testimony or any evidence that it would have differed materially from Johnsons. In the absence of such evidence, any error in denying the continuance was harmless. There is no reasonable probability appellant would have obtained a more favorable verdict had the continuance been granted.
For the same reason, we reject appellants claim that the trial court erred when it forced him to testify on Friday afternoon, before the other defense witnesses were available. Appellant does not explain how he was prejudiced by this circumstance, or how his testimony might have differed had he testified after the police officers. Any error in ordering appellant to testify out of order was harmless. (People v. Cuccia, supra, 97 Cal.App.4th at p. 792.)
The judgment is affirmed.
We concur: GILBERT, P.J. and PERREN, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise stated.