Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 05-070058-3
Ruvolo, P. J.
I. Introduction
Appellant Ricky Paul Smith (Smith) was convicted of making a criminal threat. Smith represented himself at trial. He contends that the trial court erred in denying his request for a continuance to give him more time to obtain and utilize the services of a private investigator, and in sustaining objections to some of his questions on cross-examination of the complaining witness. We affirm.
II. Facts and Procedural Background
In October 2005, the Scotts Valley Pomo Indian Tribe (the Tribe) purchased a 29.9-acre parcel of land in Richmond (the Property) that had formerly been used for a commercial plant nursery. The Property had been abandoned when the nursery closed, and squatters had moved in, apparently including appellant. When the Tribe’s treasurer, Jesus Gonzalez encountered Smith on the Property, Gonzalez told Smith that the Tribe had purchased it, that Gonzalez was going to move into a house there, and that the Tribe did not want trespassers. Smith thanked Gonzalez for “coming at him like a man and asking him politely to leave.”
On November 4, 2005, around 3:00 a.m., Gonzalez and his girlfriend, Donell Clark, were in the process of bringing their belongings to the house on the Property where they were going to live with their children. As they were driving up, they saw a fire burning some distance away. They drove over to the area to investigate, and found Smith standing next to the fire. Gonzalez reminded Smith that he had been asked to leave the Property, and asked why Smith had started a fire. Smith responded by claiming the Property belonged to him, and refusing to leave. The conversation became heated, and Gonzalez told Smith that he was going to call “the cops.” As Gonzalez was speaking to the 911 operator, Smith began to put out the fire, and Gonzalez and Clark then left and went back to the house to wait for the police.
The officer who eventually responded to Gonzales’s 911 calls and arrested Smith was a deputy sheriff. For convenience, we will use the terms “police” or “officer” to refer to law enforcement personnel, including those from the sheriff’s office.
While Gonzalez and Clark were waiting on the porch of the house, Smith rode up on a bicycle holding a gas can, and began to scream profanities at them, threatening to kill them and burn down the house. Gonzalez and Clark were frightened by this behavior, and Gonzalez told the couple’s children to go inside the house with Clark’s aunt, and to stay away from the windows. Gonzalez and Clark stayed outside to keep an eye on Smith while they waited for the police, who took a long time to arrive.
When an officer finally came, Smith rode away on his bicycle. Gonzalez reported Smith’s threats, and joined the officer in pursuit of Smith. When they caught up with Smith, the officer arrested him for trespassing. The officer’s report of the incident did not mention anything about Smith having had a gas can with him when he made the threats, and the officer did not see any gas can in Smith’s possession. He did, however, see a gas can on the ground near a shipping container and some clothing.
Around 10:00 am on November 4, 2005, Gonzalez went back to the location of the fire he had seen when he first drove onto the Property, and found three partially full gasoline cans. He reported his find to the police and the Tribe, and attempted to determine whether Smith had been released from custody, because he was concerned that Smith might return and carry out his threat to burn down the house.
Smith was released from custody around 2:20 p.m. on the afternoon of November 4, 2005. Sometime between 2:00 a.m. and 3:00 a.m. on November 5, 2005, Clark’s aunt and the aunt’s boyfriend came running into the house, saying that the abandoned building next door was on fire. Gonzalez called 911 and reported the fire, and then went to the area where appellant had been staying, and saw that two of the gas cans he had seen there earlier were now gone. When the police arrived, Gonzalez went back to that area with them to look for Smith. They found him, and arrested him again. A fire inspector later determined that the abandoned building had been intentionally set on fire.
While cross-examining Clark at trial, Smith asked her whether she and Gonzalez had any insurance on the building that burned down. She responded that the building belonged to the Tribe, not to her and Gonzalez personally, and denied that she or Gonzalez could have benefited from the fire. Gonzalez also testified that he had nothing to gain by burning down the building.
On January 23, 2007, the Contra Costa County District Attorney charged Smith by information with making criminal threats against Gonzalez. (Pen. Code, § 422.) The information also alleged that Smith had served a prior prison term (§ 667.5, subd. (b)), and was presumptively ineligible for probation (§ 1203, subd. (e)(4)). No arson charges were filed, because the court ruled that insufficient evidence was presented at the preliminary hearing to show that Smith had set the fire.
All further statutory references are to the Penal Code.
On March 13, 2007, Smith’s case was assigned to Judge Laurel Brady for trial. On March 14, 2007, during jury selection, Smith made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), which was denied. After that occurred, Judge Brady’s bailiff informed her in chambers that Smith had threatened to kill her. As a result, Judge Brady recused herself; a mistrial was declared; and Smith’s counsel moved for a competency examination under section 1368. In addition, Smith was charged in a separate case (the judicial threat case) with threatening a judge in violation of section 76.
The judicial threat case was tried first, and Smith’s conviction in that case was affirmed by this court in an unpublished opinion. (People v. Smith (July 11, 2008, A118802) [nonpub. opn.].) In the present appeal, on May 20, 2008, we granted Smith’s motion to take judicial notice of the trial court record in the judicial threat case.
On April 19, 2007, Judge Theresa Canepa found Smith to be competent to stand trial, and granted his motion to represent himself under Faretta v. California (1975) 422 U.S. 806. Prior to Smith’s trial, the entire Contra Costa County bench was disqualified from presiding over his pending cases, and retired Judge James Dawson of the Yuba County Superior Court was appointed to hear them. (Cal. Const., art. VI, § 6.)
On June 13, 2007, Judge Dawson signed an order in the judicial threat case granting Smith funds to hire a private investigator, up to a total amount of $500. At a readiness hearing on June 20, 2007, Judge Dawson set the trial in both cases to begin on July 2, 2007, with the judicial threat case to be tried first. Smith made no objection to this mode of proceeding; indeed, he had stated earlier in the hearing that he was ready to proceed to trial once his pending motions had been heard. Smith reported that he had not been given envelopes in which to send letters to prospective investigators until the preceding day, and that he could only get six envelopes at a time. The judge granted Smith’s request that his telephone privileges be reinstated, and that he be provided with envelopes, so that he could contact a private investigator. At the same hearing, Smith waived his right to jury trial on the prior prison term allegation, and admitted his prior conviction.
On July 3, 2007, while the trial in the judicial threat case was in progress, the trial court issued minute orders in this case authorizing Smith to spend up to $500 on a private investigator, and extending his “pro-per [sic] privileges” at the jail. On July 6, 2007, the trial in this case was continued to August 3, 2007.
On July 11, 2007, a private investigator who Smith had contacted sent him a letter declining to assist him due to a conflict of interest. At a readiness conference on July 24, 2007, 10 days before the trial was scheduled to start, Smith moved for a continuance of the trial, explaining that he still had not been able to hire an investigator, and complaining that his efforts to contact possible investigators had been stymied because the jail was holding up his mail. Judge Dawson denied the motion.
On the scheduled trial date of August 3, 2007, Smith again moved for a continuance, detailing the efforts he had made to obtain an investigator, and the difficulties he had encountered due to problems in communicating with them from jail, where he did not have unfettered access to the mail and could not use the telephone. Smith said he had sent about 15 letters, of which the last had gone out about two weeks earlier, and to which he had received only one response. Judge Dawson again denied the motion, noting that he was not sure what good a continuance would do, given that Smith had already sent out 15 letters and had gotten no indication that there was any investigator who might be willing to assist him.
The record contains a letter dated August 2, 2007, from another private investigator to Smith, also declining to assist him. No mention of this letter was made during the trial court proceedings on August 3, 2007, perhaps because it had not yet been received.
The trial proceeded as scheduled, beginning on August 3, 2007. Although Smith was not being prosecuted for arson, Judge Dawson granted the prosecution’s motion in limine to introduce evidence about the fire as circumstantial evidence of Smith’s intent in making the charged criminal threats, and to show that Gonzalez remained in sustained fear of Smith after the threats were made. On August 7, 2007, after deliberating for approximately 18 minutes, the jury found Smith guilty of making criminal threats in violation of section 422.
Judge Brady had apparently made the same ruling prior to the earlier trial that ended in a mistrial.
On September 4, 2007, Judge Dawson sentenced Smith to the middle term of two years, plus one year on account of his prior prison term. This timely appeal followed.
A. Denial of Continuance
Smith argues that he was denied his constitutional rights to due process by certain court rulings that prevented him from having a fair trial. He maintains that because he was unrepresented by counsel, the court’s denial of his request for a continuance in order to retain an investigator violated his constitutional right to due process, and constituted structural error requiring reversal without any inquiry as to prejudice. In the alternative, he argues that the denial of his motion for a continuance constituted an abuse of discretion.
We first address Smith’s contention that the denial of an unrepresented criminal defendant’s motion for a continuance constitutes structural error if it forces the defendant to go to trial without having been able to avail himself of the services of an investigator. A similar contention was rejected by our Supreme Court in People v. Jenkins (2000) 22 Cal.4th 900, 1039-1042 (Jenkins). As the Jenkins court noted: “ ‘[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.’ [Citation.] Instead, ‘[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge . . . .’ [Citation.]” (Id. at p. 1039.)
More recently, our Supreme Court listed the types of error which the United States Supreme Court has found to be “ ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’ ” (People v. Allen (2008) 44 Cal.4th 843, 871, quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.) These include: denial of the right to counsel, of the right to self-representation or of the right to a public trial; trial by a judge who is not impartial; and exclusion of members of the defendant’s race from a grand jury. The list did not include denial of a continuance to a self-represented defendant based on his inability, as a practical matter, to locate an investigator to assist in his defense. In People v. Allen, supra, 44 Cal.4th at pages 848, 871-872, the court held that the denial of the defendant’s right to testify in his own defense was reviewable under the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24, and that in the case before it, that standard was satisfied.
The Jenkins court also rejected the argument that limitations placed by jail authorities on a self-represented defendant’s ability to communicate with support personnel necessarily result in a deprivation of due process. While “a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense [citation], . . . this general proposition does not dictate the resources that must be available to defendants.” (Jenkins, supra, 22 Cal.4th at p. 1040.) Here, the record shows that Smith did have indirect access to the jail law library, and he did not cite the limitations on that access as a reason that he needed a continuance. Moreover, although his ability to contact potential investigators was limited, he was able to send letters and information to 15 of them, of whom at least 2 responded, stating that they were not willing to assist him.
Finally, although Smith told Judge Dawson what evidence he believed the investigators might be able to find on his behalf in the judicial threat case, he made no attempt to do so in the present case. It is true, as Smith points out on appeal, that the judge did not require any such showing in order to authorize funds for the investigator in the first place. But that decision is not the one we are reviewing. Judge Dawson did ask Smith to explain what benefit he expected to gain from a continuance, and it is in that context that we consider Smith’s failure to explain what relevant exculpatory evidence he expected to ask an investigator to obtain.
The theory of Smith’s defense was that Gonzalez and Clark invented the story of Smith’s threat to burn down their house in order to conceal their own insurance-motivated arson of the vacant building next door. Smith contends on appeal that an investigator could have attempted to discover whether the Tribe had insurance on the building, or whether the Tribe or Gonzalez had any history of being connected with suspicious fires. However, Smith’s defense was contrary to all of the evidence adduced at trial, including not only Gonzalez and Clark’s testimony that they had nothing to gain from the burning of the vacant building, but also the fire investigator’s testimony that despite a thorough investigation, he had no reason whatsoever to suspect that the fire had any connection with insurance fraud. Accordingly, we are not persuaded that due process required the trial court to give Smith additional time, after several unsuccessful attempts, to try to find an investigator based on the mere speculation that evidence might exist that could bolster Smith’s defense, even though such evidence would have been unconvincing in light of the uncontroverted testimony of the prosecution’s witnesses. (See People v. Riggs (2008) 44 Cal.4th 248, 294-297; People v. Howard (1992) 1 Cal.4th 1132, 1171.)
For all of the foregoing reasons, we find no denial of due process, and therefore no structural error, in Judge Dawson’s denial of Smith’s motions to continue his trial date. Accordingly, in reviewing those rulings, we apply the usual standard of review applicable to defense motions to continue a criminal trial, which is abuse of discretion.
The trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. (§ 1050, subd. (e); People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) The court considers “ ‘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. Zapien (1993) 4 Cal.4th 929, 972, superseded on other grounds by § 190.41.) Generally, the trial court’s denial of a motion for continuance is reviewed for abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 660.)
A trial court does not abuse its discretion in denying a continuance when the defendant cannot establish that “a continuance would be useful in producing specific relevant . . . evidence within a reasonable time” in light of the burden that a further delay would place on the jury, other witnesses, and the court. (Jenkins, supra, 22 Cal.4th at p. 1038.) Unless proposed testimony or evidence is material, the court’s denial of a continuance to obtain it does not violate a defendant’s due process rights. (Id. at p. 954.) “Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings.” (Ibid.) Thus, it is not an abuse of discretion to deny a continuance where the evidence the defendant seeks to obtain “would [be] of little assistance to him,” is “speculative at best,” and is “overwhelmingly contradicted by other evidence.” (People v. Riggs, supra, 44 Cal.4th at p. 297.) Under the case law, evidence of this type is not considered “essential to preserving [a] defendant’s ‘ “reasonable opportunity to prepare a defense and respond to the charges.” ’ [Citations.]” (Id. at p. 296.) Under the principles enunciated and applied in these cases, Judge Dawson did not abuse his discretion in the present case in denying Smith a continuance.
B. Evidentiary Rulings
Smith also complains on appeal about the trial court’s having sustained objections to two of his lines of questioning on cross-examination. Specifically, the trial court declined to permit Smith (1) to ask Gonzalez about the value of the building that burned and whether it was insured, and (2) to ask the fire investigator about the existence and value of insurance on the building, and about the investigator’s experience with owner-initiated structure fires. We review the court’s evidentiary rulings for abuse of discretion. (People v. Jones (1999) 17 Cal.4th 279, 304.)
With regard to Gonzalez, the trial court’s ruling must be viewed in context. As already noted, Smith was permitted to ask Clark whether she and Gonzalez had insurance on the building, and she responded that it belonged to the Tribe. Both Clark and Gonzalez testified that they had nothing to gain from the building having been burned down. Thus, the questions about insurance and the value of the building that the trial court declined to permit Smith to pose to Gonzalez would, at most, have elicited either cumulative or irrelevant evidence. Accordingly, we see no abuse of discretion, and even if there had been error, it was plainly harmless.
With regard to the fire investigator, the trial court correctly ruled that the witness’s opinion regarding the value of the destroyed building was irrelevant, because even if there was insurance on it, the relevant amount would be the amount recoverable under the policy, not the value of the building. Smith then failed to follow up with a question about whether the investigator was aware of the amount of insurance on the building. Thus, even assuming for the sake of argument that this information was relevant, Smith was not deprived by the trial court of the opportunity to elicit it.
As to the questions about the investigator’s experience with owner-initiated fires, Smith prefaced the question by noting that he had already asked about that subject. Not surprisingly, the trial court ruled he could not do so again. There is no abuse of discretion in declining to allow repetitive and cumulative questioning of a witness.
Earlier in his cross-examination of the fire investigator, Smith had asked him whether he investigated “fires that have been set by the owner to collect insurance money,” and the investigator said that he did.
III. Disposition
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.