Opinion
NOT TO BE PUBLISHED
APPEAL from judgment of the Superior Court of Los Angeles County No. KA086768. Charles Horan, Judge.
Marta I. Stanton, 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, Linda C. Johnson, and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Richard Paul Snyder, also known as Timothy Snyder, appeals from the judgment entered upon his convictions by jury of first degree burglary (Pen. Code, § 459, count 1); petty theft with priors (§ 666, count 2); grand theft of personal property (§ 487, subd. (a), count 3); and possession of ammunition by a felon (§ 12316, subd. (b)(1), count 4). The jury found to be true as to all counts the allegations that defendant had suffered three prior felony strikes within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d); three prior serious felonies within the meaning of section 667, subdivision (a)(1); and two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to a state prison term of 35 years to life. Defendant contends that the trial court (1) erroneously denied his request for a continuance to obtain private counsel, depriving him of his Sixth Amendment right to counsel and due process rights, and (2) abused its discretion by denying his Romero motion.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court subsequently dismissed count 2 because it is a lesser included offense of count 3, and defendant could not be convicted of both.
People v. Superior Court (1996) 13 Cal.4th 497 (Romero).
We affirm.
Because the issues raised by defendant do not directly pertain to the underlying facts, we provide only an abbreviated factual statement.
At 2:28 p.m., on May 4, 2009, West Covina Police Officer Jonathan Alexander was patrolling in his marked police car when he saw a “suspicious vehicle” parked in the driveway of his residence. The driver’s side of the car was vacant, and the driver’s door was open. A woman was sitting in the passenger seat. When Officer Alexander saw his personal property in the car, he radioed for backup for a suspected burglary in progress at his house.
When backup arrived, Officer Alexander arrested the woman. He entered his house and saw that several rooms were ransacked. He also saw a black duffle bag filled with thousands of dollars of his property. Within several minutes, other officers arrived. One officer saw defendant come out from the backyard carrying a black duffle bag and told him to freeze. Instead, defendant fled, but was found hiding in a nearby apartment area. He gave a false name to the arresting officers.
Defendant claimed that he had a drug problem and was supposed to meet his drug supplier, Tim Murphy, at Officer Alexander’s house to procure drugs. Defendant said that Murphy went into the house, and, when he was taking too long, defendant got out of the car to look for him. Defendant never entered the residence or took anything. He ran from the police and gave them the false name because he had outstanding arrest warrants.
DISCUSSION
I. Continuance
Defendant was arrested on May 4, 2009, and his preliminary hearing was conducted on May 18, 2009. The information was filed on June 1, 2009. Trial was set for June 29, 2009, and on Thursday, June 25, 2009, all parties appeared in court and declared ready for trial.
On June 29, 2009, before the prospective jurors entered the courtroom, defendant requested a continuance of one week to allow his brother in Minnesota to hire a lawyer for defendant. Defendant said that he had the name and telephone number of a lawyer, and that his brother was going to help him retain the lawyer but had not yet “been able to get it together.” The unnamed lawyer had not yet been hired, but had quoted a fee which defendant’s brother “ha[d]n’t paid... yet.” Defendant had been trying to hire a private lawyer for the last two weeks. Defendant’s appointed lawyer had put defendant’s request on the record before a commissioner four days earlier.
The trial court found that the request for a continuance was untimely and lacked a showing of good cause. It stated: “I don’t see that [hiring private counsel] as being at all likely to occur in the foreseeable future. It’s one of those things that maybe your brother might do it, maybe he might become able to do it, and so forth. There’s no showing whatsoever that that is a feasible possibility.... You’re not convincing me there’s any possibility that’s going to occur. In fact, your brother’s telling you he might be able to help you out, you don’t know how much it’s going to cost or how he’s going to finance it. No way. That’s very speculative. If you said I hired the guy, he’s on his way to try the case, okay, maybe so. But no, not just on the strength that your brother might be able to help you. He’s out of state. I know how difficult that is to hire a criminal attorney on a [three] strikes case. It’s lots and lots of money.” The trial court noted that there was no showing that defendant’s brother had the money to pay the fee that an attorney would require to handle this three-strike case.
Defendant contends that the trial court erroneously denied his request for a continuance, thereby denying him his Sixth Amendment right to counsel and due process rights. He argues that the case was on a fast track, and the request was made less than one month after the information was filed. No previous continuances had been requested. Defendant had obtained the name and telephone number of a private attorney, who had quoted him a fee. This contention is without merit.
A criminal defendant has a due process right to appear and defend with retained counsel of his or her choice. (People v. Byoune (1966) 65 Cal.2d 345, 346; People v. Lara (2001) 86 Cal.App.4th 139, 152.) “[C]ourts will make all reasonable efforts to insure that a defendant financially able to retain an attorney of his own choice can be represented by that attorney.” (People v. Johnson (1970) 5 Cal.App.3d 851, 858.) But the right to counsel of one’s choice is not absolute and must be balanced against other values, including the orderly and expeditious administration of justice. (People v. Byoune, supra, at p. 346.) “A defendant may not, for example, demand a continuance if he is unjustifiably dilatory in obtaining counsel [citation], or if he arbitrarily chooses to substitute counsel at the time of trial [citation]. ‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ [Citation.]” (Id. at pp. 346-347; see also People v. Jeffers (1987) 188 Cal.App.3d 840, 850.)
Generally, the trial court has discretion whether to grant a continuance to permit a defendant to be represented by retained counsel. (People v. Jeffers, supra, 188 Cal.App.3d at p. 850 .) A continuance is to be granted only upon a showing of good cause. (See § 1050, subd. (b).) We review the trial court’s denial of a request for retained counsel and a continuance to accomplish the retention for an abuse of discretion. (See People v. Johnson, supra, 5 Cal.App.3d at p. 858; People v. Mickey (1991) 54 Cal.3d 612, 660 .)
We must look to the circumstances in each case to determine if the denial of a request to continue was an abuse of discretion. (People v. Howard (1992) 1 Cal.4th 1132, 1171-1172.) Where the request to substitute retained counsel and for a continuance to do so comes on the heels of trial, the lateness of the request may be a significant factor justifying denial, absent the presentation of compelling reasons to the contrary. (See People v. Courts (1985) 37 Cal.3d 784, 792, fn. 4; People v. Molina (1977)74 Cal.App.3d 544, 547-548 [request made after trial commenced to substitute private counsel for the public defender necessitating a continuance to seek a lawyer properly denied]; see also People v. Johnson, supra, 5 Cal.App.3d at pp. 858, 859; People v. Farley (1968) 267 Cal.App.2d 214, 220-221.)
The trial court did not abuse its broad discretion here. Though it had only been a month and one half since the preliminary hearing that was ample time for defendant to have retained private counsel, if he was going to do so. Instead, he waited until the day set for trial, immediately prior to the jury being called, to request a one-week continuance to retain private counsel. While he claimed to have the name of an attorney who quoted him a fee, he did not provide details to the court, and there was no assurance that private counsel would be retained. Defendant’s out-of-state brother was purportedly going to retain the attorney for him, but had not “gotten it together” to do so, and defendant provided no reason why that was not done. He failed to provide the trial court with information to assure the court that his brother was in a financial position to retain counsel. Further, defendant made no effort to convince the court that substitution of new counsel would not require a further continuance for counsel to ready himself for trial. Additionally, defendant gave no explanation for why the trial court should approve replacing appointed counsel with private counsel on the day of trial. He did not suggest that appointed counsel had not adequately represented him. With no explanation for the requested substitution, it was impossible for the trial court to assess the reasons for the delayed request and whether to grant the substitution and continuance. The only appropriate inference was that the request was arbitrary, justifying the trial court’s denial. As stated in People v. Jeffers, supra, 188 Cal.App.3d at page 851, “The trial court acted within its discretion in denying [defendant’s] motion for continuance, given his request’s untimeliness, its lack of legally sufficient reasons and its adverse effect on the orderly administration of justice.”
II. Romero motion
Several weeks before trial, defendant filed a written Romero motion, arguing that the minor nature of the current offense, the lengthy sentence that would still be imposed, and his age, justified dismissing one or more of his prior strikes. After the verdicts were rendered, the motion was argued. The trial court stated: “The problem is not only can’t he quit using drugs, he can’t quit burglarizing people’s houses. We don’t have to put up with that. That’s the way it is. We are not going to put up with people burglarizing homes to support a drug habit. They have to go away if they can’t stop. He can’t stop. I’m very sorry. I note that your client began his difficulties in 1985. He went to prison on a DUI with injury.” The trial court then went through defendant’s lengthy criminal history dating back to 1985 and denied the motion, concluding that “He is the type of person that Three Strikes law designed to deal with a person who will not or cannot stop committing serious felonies.”
Defendant contends that the trial court abused its discretion by refusing to strike his prior strike(s). He argues that he does not fall within the spirit of the Three Strikes law because his criminal history does not involve violence, the current offenses are nonviolent, his prior strikes are remote in time, and he is 50 years old.
Defendant’s criminal history is as follows: 1985 conviction of driving under the influence causing injury to another (Veh. Code, § 23153, subd. (a)); 1987 conviction of misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); 1993 conviction of misdemeanor forgery (§ 470); 1991 misdemeanor conviction of second degree burglary (§ 459); 1993 felony conviction of first degree residential burglary; 1995 two felony residential burglary convictions; 2007 provided false information to a police officer and was in violation of parole, to finish term; and 2008 violation of parole.
Section 1385 provides in part: “The judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) Romero held that trial courts have authority to strike a prior conviction pursuant to section 1385. In deciding whether to do so, the trial court must take into account the defendant’s background, the nature of his current offense and other individualized considerations. (Romero, supra, 13 Cal.4th at p. 531.) Determining what constitutes “‘in furtherance of justice, ’” entails consideration “‘“both of the constitutional rights of the defendant, and the interests of society represented by the People....” [Citations.] At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” [Citations.]’” (Id. at pp. 530-531.) Thus, in deciding whether to strike a prior conviction, “the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.... In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) We presume, in the absence of evidence to the contrary, that the trial court considered all relevant criteria (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836) and knew and applied the correct statutory and case law (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430).
Striking a serious felony is an extraordinary exercise of discretion and is reserved for extraordinary circumstances. (People v. Philpot (2004) 122 Cal.App.4th 893, 905.) It only occurs when reasonable minds could not differ that the criminal falls outside the spirit of the Three Strikes scheme. (People v. Carmony (2004) 33 Cal.4th 367, 376-378.)
Defendant argues that there was sufficient evidence before the trial court to have justified dismissing his felony strike. He states: “Case law shows that the trial court was presented with sufficient facts to give favorable consideration to his Romero motion.” This argument misconstrues the standard guiding our review. We do not consider if there was evidence that would have justified the trial court to dismiss the strike, but rather, we consider whether its decision not to do so is irrational or arbitrary. We find the trial court’s decision here to be neither.
There is no showing that the trial court was either unaware of its discretion or considered impermissible factors. We have been referred to no case concluding that the fact that defendant’s criminal history does not involve violence is alone sufficient to justify dismissing a prior strike. Defendant’s prior convictions began in 1985. They cannot be considered too remote because defendant spent a considerable period of the intervening years incarcerated and unable to commit additional burglaries. Moreover, his criminal history is punctuated with parole violations, reflecting that even under the watchful eye of parole or probation officers he was unable to follow the rules. This 20-year plus history best predicts defendant’s future behavior.
While some of the offenses charged here are comparatively minor, defendant’s recidivist history reflects precisely the type of “unrelenting record of recidivism” (People v. Gaston (1999) 74 Cal.App.4th 310, 320) at which the Three Strikes law is aimed. He has a more than two-decade history of criminal behavior. Interspersed with his residential burglary and strike felonies, defendant was also convicted of several drug related offenses and has admitted having a drug problem which he has been unable to overcome for decades and which will virtually insure a continuation of his criminal behavior if allowed into society again. His past offenses were persistent and recurrent. This repetitious criminal conduct demonstrates defendant’s inability to change this pattern. (People v. Williams, supra, 17 Cal.4th at p. 163.) These facts amply justified the trial court’s ruling.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.