Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF55908, Kenneth E. Vassie, Judge. (Retired judge of the Los Angeles Sup. Ct, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed in part; reversed in part with directions.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant was convicted of several crimes arising from a home invasion robbery. On appeal, defendant contends (1) his Sixth Amendment right to counsel of his choice was violated when the trial court refused to allow him to substitute a fourth attorney on the eve of trial; (2) his sentence to consecutive terms for all the counts of conviction violated the prohibition against dual punishment (Pen. Code, § 654); and (3), the court improperly sentenced defendant to the middle term of six years, doubled, on the robbery count, where a six-year term which may only be imposed where the robbery was committed in concert with two or more other persons. (Pen. Code, § 213, subd. (a)(1)(A).)
The People agree that the sentence for the false imprisonment count should have been stayed, and concede that the court erroneously imposed the term for robbery in concert where the current offense did not involve “two or more other persons.” We agree that one of the consecutive sentences resulted in dual punishment, although we are of the opinion that the criminal threats count should have been stayed, not the false imprisonment count. We also agree that the sentence for count 1 must be modified, but otherwise we affirm.
BACKGROUND
On October 3, 2006, defendant, accompanied by David Fuentes, knocked on the door of Mateo Salas’s trailer, and forced their way inside the trailer when Salas answered the knock. Fuentes grabbed Salas as he forced his way through the door. After entering, defendant and Fuentes told Salas they had been sent there to kill him, although they would not say why they had been sent. Defendant and Fuentes then told Salas to give them his money. At this point, defendant was restraining Salas by holding his shoulder from behind. Salas told them he did not have any money and did not have his wallet.
Salas eventually revealed his wallet was in a bedroom, down the hall, so defendant and Fuentes forced Salas down the hall. All the while, defendant was maintaining his hold on Salas from behind. In the bedroom of the trailer, Fuentes removed a wallet from some pants that were on the bed, and removed $70 from the wallet. Defendant and Fuentes also removed a police officer’s business card from the wallet, as well as Salas’s cell phone and charger, which were also found in the bedroom.
Defendant and Fuentes then forced Salas back into the living room area and told Salas they were going to kill him, forcing him to lie on the kitchen floor. While Salas lay on his back on the floor, Fuentes motioned to a bulge in the waistband of his pants which looked like a gun; Salas believed he was going to die. Fuentes told Salas his only chance to live was to agree not to tell anyone what occurred. Fuentes threatened that if Salas told anyone anything, Fuentes and defendant would come back, kill Salas, and hurt his family. Defendant told Fuentes to let him have it, but rather than shoot Salas, defendant and Fuentes exited the trailer, leaving a can of beer on the kitchen counter. They drove off in a black or green Honda.
After defendant and Fuentes left, Salas went to the trailer where his father-in-law lived, and a report was made to the police. Salas identified defendant and Fuentes from photographic lineups. Further investigation revealed the Honda getaway car was registered to David Fuentes, leading officers to set up surveillance at Fuentes’s residence, where the car was spotted, and later identified by Salas. Following a high speed chase, the car was found abandoned; in the backseat was a 12-pack of beer of the same type as the beer can left by the two men at Salas’s trailer.
Defendant was charged with first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)), residential burglary with a person present (Pen. Code, §§ 459, 667.5, subd. (c)(21)), false imprisonment (Pen. Code, § 236), criminal threats (Pen. Code, § 422), and dissuading a witness. (Pen. Code, § 136.1.) It was further alleged that defendant had been previously convicted of a serious or violent felony, as both an enhancement (Pen. Code, § 667, subd. (a)), and as a strike under the Strikes law. (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) He was tried by a jury as to the substantive charges and convicted on all counts. In a separate bench trial, the court found the allegations that defendant had suffered a strike and a serious felony prior conviction enhancement (§ 667, subd. (a)) to be true.
Defendant was sentenced to an aggregate sentence of 24 years four months in state prison, and appeals.
DISCUSSION
Defendant raises three assignments of error: (1) Denial of his motion to substitute retained counsel on the day of the commencement of the trial; (2) error in imposing consecutive terms for counts 2 through 5; and (3) error in selecting the wrong term for count 1. The People concede that the trial court erroneously applied the middle term for a first degree robbery committed by more than two persons in concert, because there were only two persons involved in the offense. We hold that the term imposed for the criminal threats count should have been stayed, and accept the concession as to the proper term for the robbery sentence. In all other respects, we disagree with defendant’s claims.
1. The Defendant’s Sixth Amendment Right to Retain Counsel of His Choice Was Not Violated When the Court Refused to Permit A Substitution of Counsel on the Day of Trial, or to Continue the Trial to Permit His Family to Retain Private Counsel.
After trailing for several days in May, 2007, jury trial was set to commence on July 9, 2007, and later reset for July 16, 2007. When the case was called, defense counsel informed the court that defendant wanted to hire private counsel, to represent defendant at trial. Defense counsel informed the court that defendant’s family had been talking to the private attorney for the previous two weeks. The court, having heard other motions to relieve appointed counsel, denied the request. Defendant asserts this denial resulted in a violation of his Sixth Amendment right to be represented by counsel of his choice. We disagree.
Two separate motions to relieve appointed counsel were made pursuant to People v. Marsden (1970) 2 Cal.3d 118, on March 9, 2007, and May 14, 2007. A third attorney who had been appointed was apparently relieved due to health problems.
The right to effective assistance of counsel encompasses the right to retain counsel of one’s own choosing. (People v. Ramirez (2006) 39 Cal.4th 398, 422, 424.) However, the right to appear and defend with retained counsel is not absolute. (People v. Blake (1980) 105 Cal.App.3d 619, 624.) The right to counsel of one’s own choosing can constitutionally be forced to yield when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances. (People v. Jeffers (1987) 188 Cal.App.3d 840, 849-850.)
The court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is unjustifiably dilatory or arbitrarily desires to substitute counsel at the time of trial. (People v. Leonard (2000) 78 Cal.App.4th 776, 784.) A defendant’s request for a continuance to seek private counsel is reviewed for an abuse of discretion. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367.)
We agree with the general premise that the right to counsel of one’s choosing is an important component of the constitutional guarantee of an accused’s right to counsel. (People v. Crovedi (1966) 65 Cal.2d 199, 208.) However, a defendant may not demand a continuance if he is unjustifiably dilatory in obtaining counsel, or if he arbitrarily chooses to substitute counsel at the time of trial. (People v. Byoune (1966) 65 Cal.2d 345, 346.) Because private counsel had not been retained by the time the case was called for trial, after numerous continuances provided ample opportunity to do so, we review the claim under the abuse of discretion standard.
In People v. Courts (1985) 37 Cal.3d 784, the defendant sought out the services of private counsel nearly two months before his trial, but at that time did not have sufficient funds. The defendant informed the trial court of his efforts to raise the money, and when he did get the money together, and the attorney agreed to the representation, the court denied his motion for a continuance to give the newly-retained attorney an opportunity to prepare for the trial. (Courts, supra, at pp. 788-789.)
In that case, the defendant’s efforts to be represented by private counsel and the attorney’s willingness to undertake the representation were well-documented. In light of the defendant’s diligence, his timely request for a continuance to provide newly retained attorney additional time to prepare for trial, and lack of prejudice to the People or the witnesses, the court held it was an abuse of discretion to deny the continuance. (People v. Courts, supra, 37 Cal.3d at pp. 796-797.)
Here, however, new counsel had not been retained by the date set for the jury trial to commence after numerous continuances. In fact, the reason given for the continuance was to allow defendant’s family to continue the “process of retaining” counsel, and to allow that attorney to substitute in. Unexplained delay in retaining counsel does not establish good cause for a continuance. (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.)
Although defendant couches his claim of error in terms of the defendant’s Sixth Amendment right to be represented by the retained counsel of his choice, there was no violation of that right where the prospective attorney had not been retained on the date of the commencement of trial. As a request for a continuance to retain counsel, we find no abuse of discretion in denying defendant’s dilatory request, made to permit his family to continue the “process of retaining” counsel, following the appointment of three separate attorneys over the history of the case prior to trial, would result in a significant inconvenience for the court and the witnesses.
2. Consecutive Sentences Were Proper Where the Defendant Harbored Different Mental States for the Crimes.
Defendant argues that consecutive terms for the crimes of which he was convicted violated the prohibition against multiple punishment (Pen. Code, § 654), because all the crimes were committed as part of a single course of conduct, committed towards the goal of robbing Salas. The People agree that the term for count 3, the false imprisonment charge, should have been stayed because it was committed for the purpose of facilitating the robbery. We agree that one of the counts should have been stayed, but determine that the violation involves the criminal threats conviction of count 4.
Penal Code section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions . . . shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” This section thus prohibits multiple punishment, not only for a single act which violates more than one statute, but also where separate statutes are violated by a single course of conduct, engaged in by the defendant pursuant to a single intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-638.) In other words, it prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.)
When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) However, if the defendant harbored multiple or simultaneous objectives, which are not merely incidental to each other, he may be punished separately for each violation. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The divisibility of a course of conduct depends upon the intent and objective of the defendant. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Burglary consists of entry into a dwelling with the intent to commit a felony. (Pen. Code, § 459.) Thus, ordinarily, if the defendant commits both the burglary and the underlying intended felony, section 654 permits punishment for one or the other, but not for both. (People v. Centers (1999) 73 Cal.App.4th 84, 98-99.) Thus, in People v. James (1977) 19 Cal.3d 99 at pages 119-120, the California Supreme Court held that Penal Code section 654 barred multiple punishment for the burglary of a congressman’s office, and the robbery of a woman inside that office, where the felonious intent of the defendant upon entering was to rob her.
Here, the evidence showed the defendant entered the victim’s trailer with the intent of threatening to kill him, later decided to rob the victim, and finally threatened to kill the victim if he told anybody what had happened. Indeed, in argument to the jury, the People argued that the defendant entered the trailer with the intent to threaten to kill Salas. It was therefore improper to sentence the defendant for both the burglary and threat to kill Salas (Pen. Code, § 422), which was the underlying intended crime.
Respecting the false imprisonment count, the People agree that it should have been stayed as incidental to the robbery. However, we disagree. While the movement of Salas to the bedroom created the situation in which the wallet and cell phone could be taken “in his presence,” we conclude that the restraint of Salas’s movement was the product of an objective (restraint) independent of the robbery. The record shows Salas was physically restrained by Fuentes immediately after defendant and Fuentes entered the trailer and informed Salas they had been sent to kill him. Then, with defendant holding onto Salas, he was forced to the bedroom where the robbery was completed. After the robbery, Fuentes forced Salas back into the living room area where additional threats were made. Then Salas was pushed onto the floor and was informed he was going to die. The initial restraint of Salas’s liberty by Fuentes prior to the robbery was a separate act, with an objective independent of the robbery.
As to defendant’s claims regarding the remaining counts, we conclude they were properly ordered to run consecutive to the robbery count. The robbery of Salas was committed after the burglary was complete as an afterthought. Because the burglary was committed for the purpose of threatening Salas, the robbery was not committed incidental to a same objective. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) The act of dissuading a witness (Pen. Code, § 136.1, count 5), committed after the other offenses were completed, was also the product of an independent objective.
Therefore, the term for count 3 (criminal threats) should have been stayed.
3. The Sentence Must Be Modified, and the Minutes and Abstract of Judgment Must Be Amended
Defendant argues, and the People concede, that the court selected the improper term to impose for the robbery conviction. The trial court imposed a midterm of six years for the robbery count. However, a six-year term may be imposed where the robbery is committed by a defendant in concert with two or more other persons. (Pen. Code, § 213, subd. (a)(1)(A); see People v. Petznick (2003) 114 Cal.App.4th 663, 682.) The instant matter involves only two participants, so the sentence is governed by Penal Code section 213, subdivision (a)(1)(B), which provides for a midterm of four years. The term for count 1 must be modified to reflect a midterm of four years, doubled due to the strike allegation, for a total term of eight years for count 1. The minutes and abstract of judgment should be amended accordingly.
We also note that although the correct number of years were imposed for each consecutive term, the abstract of judgment incorrectly indicates that the consecutive terms were “full term.” The abstract should be amended to show that the consecutive sentences for the subordinate terms were one-third the midterm.
DISPOSITION
The convictions are affirmed and the sentence is reversed. The case is remanded to the superior court with directions to (1) modify the sentence as to count 1, the principle term, to reflect a middle term of four years, doubled, (2) stay the term for count 4 (Pen. Code, § 422, criminal threats), and (3) amend the abstract of judgment to reflect that the subordinate terms are “consecutive one-third” instead of “consecutive full term.”
We concur: Ramirez, P. J. Hollenhorst,J.