Opinion
C089463
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. NEAL RUGGLES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE009786)
Defendant Neal Ruggles was convicted of possessing methamphetamine for sale and unlawfully possessing psilocybin mushrooms. On appeal, he argues the trial court erred by granting his counsel's motion to continue beyond the statutory speedy trial deadline and over his objection. He also argues his counsel's conduct in this regard left him without representation in violation of the Sixth Amendment right to counsel. He argues his counsel was further ineffective by failing to direct the court's attention to dispositive relevant authority and for failing to seek exclusion of late discovery. Finally, he argues the court erred by excluding his probation officer's testimony, meant to show his history of heavy drug use. We affirm.
FACTUAL AND PROCEDURAL HISTORY
I
Underlying Facts
During a probation search of defendant's home, officers found suspicious looking containers under defendant's bathroom sink. Officers discovered the containers had secret compartments containing contraband. In total, the officers found nearly 100 grams of methamphetamine with the packaging weight included. The methamphetamine was divided among several bags, 25 of which contained about a gram of methamphetamine each, while the remaining four bags contained much larger quantities. A typical dosage of methamphetamine is between 0.1 to 0.3 grams and taken once or twice a day.
Officers also found two scales, a folded playing card, used and unused glass pipes, hundreds of pills packaged by type, psilocybin mushrooms, and multiple empty bags. Drug dealers commonly use scales to measure product as well as folded playing cards to act as funnels. It is also common for dealers to provide a variety of drugs to their clients.
Upon a later search of defendant's cell phone, officers discovered text messages to one individual indicating defendant sold drugs to that person.
II
Relevant Proceedings
Defendant was arraigned on September 24, 2018. On November 15, 2018, defense counsel requested a continuance over defendant's objection, noting November 26 was the 60th day since the filing of the information. Defense counsel explained he was currently in trial on a three-defendant gang case expected to end the week before Christmas at the earliest. He estimated his first availability for trial would be December 31.
The court (Judge Gary S. Mullen) granted defense counsel's motion over defendant's objection reasoning defendant's first attorney continued his case at defendant's request in the hopes of resolving it and because defendant was concerned about his wife's health. The court explained defendant's current attorney "has another trial. Every attorney [who] practices cannot represent one client at a time. It would be impossible. You would need a million attorneys. [¶] He has to have a caseload, as does every attorney. He is currently in trial. He will focus his full attention on you once he is out of the trial. [¶] So I am finding good cause to continue the case, over your objection, to the date stated by [defense counsel]. [¶] The law is clear it's appropriate to do that under these circumstances. [Defense counsel's] caseload, he is not overwhelmed. He's handling his trials expeditiously. We discussed this in chambers, and he will get to you and your case."
The court refused to hear argument from defendant himself and directed the court reporter to stop reporting his statements.
On January 10, 2019, defendant went to trial before Judge Laurel D. White. He and his counsel, however, requested jury selection be continued two business days for defense counsel to review discovery the prosecutor had just disclosed. Counsel also moved to exclude all evidence not yet disclosed. The evidence just disclosed included, seven months of jail calls, the testimony of a newly announced expert, and the results of a cell phone search. Defense counsel previously knew of the cell phone search warrant, but not the results of the search.
The prosecutor explained that because defendant did not waive his speedy trial right, investigations and reports were still coming into her office, which she immediately forwarded to defense counsel. As to the results of the cell phone search, she received the report two days before and immediately sent it to defense counsel, even though it did not appear to have arrived on defense counsel's desk as of the day of trial. She received the jail calls the day before and provided them to defense counsel that morning.
Defendant waived his right to a speedy trial and the court granted defense counsel's motion to continue jury selection and the parties proceeded to motions in limine. The court granted defendant's motion to exclude evidence not yet disclosed finding the previously discussed items outside that category because they had been disclosed just not delivered. Further, counsel and defendant agreed to continue the matter so defense counsel could review the discovery.
At trial, the prosecutor pointed to defendant's text messages, as well as his possession of large amounts of various drugs, scales, and packaging, as proof he possessed the methamphetamine for the purposes of sale. Defendant's defense was that he possessed the drugs for his heavy drug habit. To that end, he offered his probation officer's testimony to establish his history of drug use. The court ultimately excluded the evidence because it was cumulative. Defendant also offered the testimony of his friends, who were or had been heavy drug users themselves, to show his history and severity of drug use.
The jury found defendant guilty of unlawful possession of methamphetamine for sale and unlawful possession of psilocybin mushrooms. It also found defendant had been convicted of a prior strike conviction. The court sentenced defendant to a total of six years in prison -- three years for the possession for sale conviction, doubled pursuant to the three strikes law, and a concurrent one year for the unlawful possession conviction.
Defendant appeals.
DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion
By Granting Defense Counsel's Motion To Continue
Defendant contends the trial court erred by granting defense counsel's motion to continue over defendant's objection and beyond the statutory deadline to bring him to trial. He devotes his argument to explaining how his right to a speedy trial was violated as a result of that continuance. At oral argument, defendant clarified that while the speedy trial violation is relevant to our analysis, his claim was not that his speedy trial right was violated. Indeed, the remedy for such violation is dismissal, which defendant did not want. (See Pen. Code, § 1382.) Instead, defendant wanted his case to go forward. With this understanding of defendant's argument, he is merely attacking the court's ruling on defense counsel's motion to continue and not the court's ruling regarding defendant's right to a speedy trial. Thus, to the extent the People argue forfeiture, defendant's claim regarding the continuance motion is preserved given defendant's repeated objections to defense counsel's request. As to the merits of his continuance claim, however, we conclude the court did not err.
Defendant did not forfeit his speedy trial claim by failing to bring a motion to dismiss. (See People v. Wilson (1963) 60 Cal.2d 139, 146.) We agree with defendant that he had no reasonable means of moving for dismissal, or knowing such motion was required, considering the continuance was given at his counsel's request. (See In re Smiley (1967) 66 Cal.2d 606, 631 [no forfeiture when "the necessity of taking such steps [to preserve a claim] would not be apparent to a defendant who is without an attorney, and it would be indulging in an unwarranted fiction to assume that the failure of such a defendant to object was a deliberate, tactical move on his part"].) Further, because the court refused to hear defendant's argument and directed the court reporter to stop reporting defendant's statements, it is clear any motion defendant could have brought would have been futile. (See People v. Penunuri (2018) 5 Cal.5th 126, 166; People v. Anderson (2001) 25 Cal.4th 543, 587 ["Counsel is not required to proffer futile objections"].)
Generally, continuances are disfavored in criminal cases. "[A]ll proceedings in criminal cases shall be . . . heard and determined at the earliest possible time. To this end, the Legislature finds that the criminal courts are becoming increasingly congested . . . . Excessive continuances contribute substantially to this congestion . . . ." (Pen. Code, § 1050, subd. (a).) Therefore, trial courts may grant motions to continue based only on a showing of good cause. (Pen. Code, § 1050, subd. (e).) " 'Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances . . . .' " (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508.) The court must consider " ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) "In determining whether a denial [of a motion to continue] was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request." (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.)
In Johnson, our Supreme Court considered whether the defendant's right to a speedy trial had been violated when the trial court granted the public defender's requests for a continuance over the defendant's express objections. (People v. Johnson (1980) 26 Cal.3d 557, 561-562, 565-566.) During that analysis, the court stated, "In the present case the record does not indicate any ground . . . which would suggest good cause to deny defendant's motion to dismiss. When the public defender moved for a continuance on March 23, he clearly posited his request not upon a benefit to Johnson but upon commitment to clients other than Johnson. He revealed that his representation of other clients created a conflict which he proposed to resolve to Johnson's detriment. Under these circumstances we think the court should inquire whether the assigned deputy could be replaced by another deputy or appointed counsel who would be able to bring the case to trial within the statutory period. In some instances, appointment of new counsel will serve to protect defendant's right to a speedy trial. If, on the other hand, the court cannot ascertain a feasible method to protect defendant's right, the court will have no alternative but to grant a continuance[. U]pon a subsequent motion to dismiss, however, the court must inquire into whether the delay is attributable to the fault or neglect of the state; if the court so finds, the court must dismiss." (Id. at pp. 572-573, italics added.) We do not agree with defendant that our Supreme Court imposed a "clear mandate" for trial courts to inquire into the availability of substitute counsel when current counsel requests a continuance for the purposes of representing another client over defendant's objection and beyond the statutory deadline. First, our Supreme Court said a trial court "should inquire" into substitute counsel under these circumstances. (People v. Johnson, supra, 26 Cal.3d at pp. 572-573.) Further, the issue addressed in Johnson was whether there was good cause for the delay to avoid dismissal of the defendant's case under Penal Code section 1382. (Johnson, at pp. 561-562, 572-573.) The court held a defense counsel's calendar conflict alone is insufficient to constitute good cause to avoid dismissal, but expressed no opinion whether it was good cause to continue trial. Indeed, our Supreme Court also said "[t]he state cannot reasonably provide against all contingencies which may create a calendar conflict for public defenders and compel postponement of some of their cases." (Id. at pp. 571-572.) This suggests the granting of a continuance based solely on a calendar conflict may be appropriate under Penal Code section 1050.
To the extent defendant argues his speedy trial right was violated because the court did not inquire into whether substitute counsel was available, that argument is without merit. As it pertains to an alleged speedy trial violation, " 'a number of factors are relevant to a determination of good cause' under [Penal Code] section 1382 to continue a trial beyond the 60-day period [and avoid dismissal]: '(1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay. [Citations.] Past decisions further establish that in making its good-cause determination, a trial court must consider all of the relevant circumstances of the particular case, "applying principles of common sense to the totality of circumstances . . . ." ' " (Smith v. Superior Court (2012) 54 Cal.4th 592, 598) While the Johnson court suggested the trial court should inquire into substitute counsel when hearing counsel's motion to continue, the court's obligations when determining whether defendant's speedy trial right was violated do not include such an inquiry. Indeed, as Johnson provides, the answer to the suggested inquiry merely informs the court's required determination of whether the delay is attributed to the state. (People v. Johnson, supra, 26 Cal.3d at pp. 572-573.) Here, the court fulfilled that obligation by determining that neither defense counsel himself nor his office was overburdened. Because the trial court fulfilled its duty to ensure the delay was not the fault of the state, it did not abuse its discretion by failing to inquire into the availability of substitute counsel.
Here, counsel requested a continuance because of an extended calendar conflict, indicating he could not adequately prepare or try defendant's case while focusing on that other client's matter. As a consequence, counsel anticipated defendant's case could not be heard until 35 days beyond the statutory deadline, at the earliest. Based on these reasons, the court granted the continuance indicating it sought to ensure defendant had a fair trial and was adequately represented. The court further reasoned that, although defendant's trial would be beyond the statutory deadline, he would likely not suffer prejudice given the weight of the evidence against him. Under the circumstances, we cannot say the court did not have substantial justice in mind when continuing defendant's trial. New counsel would be entitled to a continuance to adequately prepare for an unexpected case in addition to an existing caseload. The court reasonably believed substitute counsel would need at least as much time preparing a new case for trial as it would take current counsel to complete his current obligations.
Defendant disagrees, arguing his case was not especially complicated and there was sufficient time (11 days) within the statutory period for substitute counsel to prepare and try his case in place of his current counsel. We note four of those 11 days were the Thanksgiving weekend. Assuming substitute counsel was appointed immediately, counsel would realistically have seven days to prepare, in addition to an existing caseload. The court was not unreasonable in assuming defendant could not be adequately represented under such conditions or that substitute counsel would be unwilling to take on defendant's case. Accordingly, the trial court did not abuse its discretion by granting defense counsel's request for a continuance.
II
Defendant Was Not Denied His Sixth Amendment Right To Counsel
Defendant contends he was denied his Sixth Amendment right to counsel when his counsel advocated against his interest by requesting a continuance over his objection and beyond the statutory deadline. The People counter there was no constitutional error because defense counsel's motion to continue was not made at a critical stage of the proceedings. We agree with the People.
Criminal defendants have a Sixth Amendment right to counsel at all critical stages of prosecution. (People v. Santos (2007) 147 Cal.App.4th 965, 972.) The denial of counsel during a critical stage of the proceeding "mandates a presumption of prejudice because 'the adversary process itself' has been rendered 'presumptively unreliable.' " (Roe v. Flores-Ortega (2000) 528 U.S. 470, 483 [145 L.Ed.2d 985, 999].) In general, a critical stage in the proceedings is "a time at which crucial decisions affecting [the defendant's] defense [are] to be made, and where his counsel could have taken steps that would have protected and furthered defendant's substantial rights." (People v. Horton (1995) 11 Cal.4th 1068, 1136.) Critical stages in the criminal proceedings are those " 'where the results might well settle the accused's fate and reduce the trial itself to a mere formality.' " (Maine v. Moulton (1985) 474 U.S. 159, 170 [88 L.Ed.2d 481, 492].)
Defendant does not argue his counsel's motion to continue was made at a critical stage in the sense the court's decision affected the outcome of his trial. Instead, he argues the court's decision affected his substantial right to a speedy trial. Thus, defendant does not argue he was denied the right to a fair trial or to present a defense, the rights he acknowledges the Sixth Amendment right to counsel is designed to protect. For example, in Horton, the defendant's counsel was absent when the jury returned from deliberations to report a deadlock, received a " 'dynamite' " instruction from the court, and then, after continued deliberations, returned a verdict against the defendant. (People v. Horton, supra, 11 Cal.4th at pp. 1128-1129.) Even though a codefendant's counsel had agreed to "stand in" for the missing attorney, our Supreme Court concluded the defendant had been denied the assistance of counsel during a critical stage of the proceedings because cocounsel had only agreed to stand in for the purpose of receiving a verdict and polling the jury, not for purposes of further instruction to the jury on issues concerning his guilt. (Id. at p. 1136.)
Similarly, in Rouse, the court determined a defendant's Sixth Amendment right to counsel attached at a Proposition 47 postconviction resentencing hearing. (People v. Rouse (2016) 245 Cal.App.4th 292, 296-297, 300.) The court's reasoning was based in part on the settled proposition that "[s]entencing is a critical stage in the criminal process within the meaning of the Sixth Amendment." (Id. at p. 297, citing People v. Doolin (2009) 45 Cal.4th 390, 453.) To that end, denying continuances for a defendant to retain counsel for purposes of sentencing has been determined to violate the Sixth Amendment. (People v. Trapps (1984) 158 Cal.App.3d 265, 270-272.)
In contrast, defense counsel's motion to continue, and the court's granting of it, did not implicate defendant's right to a fair trial or to present a defense, whether that be at trial or at sentencing. Because defendant's fate regarding the criminal charges was not implicated by the court's decision to either grant or deny his counsel's requested continuance, this was not a critical stage of the criminal proceedings. Accordingly, defendant was not denied his Sixth Amendment right to counsel when his counsel requested a continuance over his objection and beyond the statutory deadline.
III
Defense Counsel Was Not Ineffective
Defendant contends his counsel was ineffective for failing to direct the court's attention to Johnson and its duty to appoint defendant new counsel to vindicate his speedy trial right, and relatedly, for not seeking writ review of the court's decision. He also contends counsel was ineffective for failing to seek exclusion of the prosecution's discovery disclosed on the first day of trial. We disagree on both points.
To prevail on a claim of ineffective assistance of counsel, defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693 [80 L.Ed.2d 674, 697].) We presume " 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.' " (People v. Carter (2005) 36 Cal.4th 1114, 1189.) If the appellate record " 'sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.' " (Ibid.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, at p. 697 .)
A
Failure To Direct Court To Johnson
Defendant's argument that his counsel was ineffective for failing to direct the court's attention to Johnson or seek a writ of mandate rests on the assumption the court had the duty to inquire whether another attorney was available to try defendant's case before the statutory deadline. Aside from Johnson, defendant fails to cite any authority mandating the court inquire whether substitute counsel was available to try a defendant's case. But, as described ante, the court was under no such duty. Thus, counsel was not ineffective for failing to argue otherwise nor was counsel ineffective for not seeking a writ of mandate. (See People v. Bradley (2012) 208 Cal.App.4th 64, 90 [the failure to raise a meritless objection is not ineffective assistance of counsel].)
B
Failure To Seek Exclusion Of The Prosecution's Late Discovery
Defendant argues his counsel was ineffective for failing to move to exclude the prosecution's late discovery of his text messages and the testimony of an additional expert witness. However, for the trial court to have suppressed the expert's testimony as a sanction for failure to produce it earlier, the trial court would have been required to first exhaust all other possible sanctions. (See Pen. Code, § 1054.5, subd. (c); see also People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459-460 [trial court erred by not "consider[ing] or exhaust[ing] other sanctions before precluding [witnesses'] testimony" due to prosecutor's failure to "diligently provide discovery to the defense"].)
As to the expert's testimony and the text messages, the court would have had to find "significant prejudice" from the timing of the disclosure. (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) Here, testimony and jury selection could easily be delayed to the following week for counsel to become prepared. In the interim, the parties discussed motions in limine and dealt with other trial concerns. Thus, there was no significant prejudice from the timing of the disclosure.
Finally, the court would have to find the prosecutor's purported discovery violation constituted "willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan, supra, 108 Cal.App.4th at p. 358.) Here, the prosecutor indicated she disclosed the text messages as soon as she received them from her investigator, as she did the jail calls and other investigative reports. Thus, it does not appear the prosecutor sought a tactical advantage with a late disclosure of the text messages. As to the expert witness, his testimony did not provide facts concerning defendant's offenses but his testimony did provide expertise in assessing signs of drug sales versus mere possession. Given defendant's defense and the fact that an expert had already testified to the substance of this expert's testimony at the preliminary hearing, we cannot say the prosecutor intended a tactical advantage by disclosing a different person to testify to the expertise already disclosed.
Accordingly, defendant cannot show the court would have excluded the late discovery as opposed to some lesser sanction. Thus, he cannot show his motion would have been granted had it been brought nor can he show a reasonable probability the result of his trial would be more favorable absent the alleged unprofessional error.
IV
The Court Did Not Abuse Its Discretion By
Excluding Testimony Of Defendant's Probation Officer
Defendant argues the court abused its discretion by excluding the testimony of his probation officer. We disagree.
A
Background
During defendant's case-in-chief, he introduced the testimony of his probation officer to establish his history of drug use. He intended to elicit that, during his probationary period of February 2017 to February 2018, defendant tested positive for drugs multiple times and was referred to "work project" as a consequence. The court sustained several of the prosecutor's objections to questions intended to elicit this information and testimony the probation officer did not see evidence defendant sold drugs when he visited defendant's home. The court reasoned defense counsel was "asking [the probation officer] information about your client during the wrong time frame. And the only relevance of what they may have known about his activities would have been during the time frame of his possession for purposes of sale. And the activity you were asking him to testify about preceded by at least five months, approximating six months, and under [Evidence Code section] 352 I find that the probative value of the testimony of what that witness may have observed during the period far preceding the events of this case were outweighed by prejudice. I didn't find them particularly relevant." It also believed the evidence was cumulative because, following the probation officer's testimony, defendant's friend testified extensively to defendant's heavy drug use during the relevant time period.
B
Analysis
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review evidentiary rulings for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Defendant argues the evidence was far more relevant than the court believed. First, evidence of defendant's heavy drug use and no drug sales before the crime was relevant to show conforming conduct at the time of the crime. And second, some of the text messages were sent during the time defendant was on probation, making defendant's probation officer's testimony relevant to show he was a heavy drug user at the time he purportedly sold drugs. We disagree.
Defense counsel's proffer was the probation officer would testify defendant failed drug tests and was punished accordingly. Defense counsel's questioning suggested the probation officer would also testify he saw no signs of drug sales at defendant's house. Contrary to defendant's first argument, this testimony does not establish defendant did not sell drugs during his probation. Thus, the probation officer's testimony was not relevant to show conforming conduct.
Further, defendant's long-term and heavy drug use was not contested. Two of his friends testified to the particulars of his drug use, most importantly the quantity he would use at any given time or throughout the day. Defendant's probation officer's testimony that he also knew defendant to use methamphetamine was of little added value. Defendant disagrees and asserts his probation officer's testimony carried with it a sense of legitimacy his other witnesses could not offer. He points to the prosecution's closing argument in which it pointed to the credibility problems with defendant's witnesses as proof defendant could not have consumed the large quantities of drugs he claimed. Defendant's probation officer, however, would not have been able to offer defendant assistance in this regard. The probation officer did not know the particulars of defendant's drug use. He knew only that defendant used drugs with some frequency. Again, that fact was established by defendant's own witnesses and uncontested by the prosecution. Thus, the court did not abuse its discretion by excluding defendant's probation officer's testimony under Evidence Code section 352.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.