Opinion
A147189
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ERICK JASON TALBOT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. Nos. SC194076A, SC183056A, SC183159B)
Erick Jason Talbot (appellant) appeals from a judgment entered after the trial court revoked his probation and sentenced him to five years and eight months in prison. He contends the court abused its discretion and violated his due process rights by denying his request for a continuance. We reject the contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We omit the facts of appellant's underlying crimes because they are not relevant to the issue raised on appeal. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
On December 21, 2012, a first amended felony complaint was filed charging appellant with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 1), receiving stolen property (Pen. Code, § 496, count 2 & 3), and possession of burglar tools (§ 466, subd. (a), count 4). The complaint also alleged that appellant had a prior strike (§ 667, subds. (b)-(i)) as a result of an August 21, 2001 burglary conviction in Oregon (Or. Rev. Stat. § 164.225).
All further statutory references are to the Penal Code unless otherwise specified.
On January 14, 2013, a first amended felony complaint was filed charging appellant with burglary of a vehicle (§ 459, count 1), commercial burglary (§ 459, count 2), unauthorized possession of an access card (§ 484e, subd. (c), count 3), receiving stolen property (§ 496, count 4), possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 5), possession of a controlled substance, hydrocodone (Health & Saf. Code, § 11350, subd. (a), count 6), fraudulent use of an access card (§ 484g, count 7), destroying evidence (§ 135, count 8), possession of burglar tools (§ 466, count 9), possession of drug paraphernalia (Health & Saf. Code, § 11364, count 10), with petty theft (§ 484, subd. (a), counts 11 & 12), and battery (§ 242, count 13). The complaint also alleged that appellant had a prior strike as a result of the Oregon burglary conviction.
On May 30, 2013, appellant pleaded guilty to all counts charged in SC183056A in exchange for a term of five years and eight months. The trial court ruled it would strike the Oregon prior strike. In SC183159B, he pleaded guilty to counts 1, 2, and 4 and admitted the Oregon prior strike. The plea agreement provided that the court would consider a motion to strike the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On June 25, 2013, the trial court struck the Oregon strike conviction under People v. Superior Court (Romero), supra, 13 Cal.4th 497, and sentenced appellant to an aggregate term of five years and eight months. The court suspended execution of sentence and placed appellant on probation for five years.
On February 5, 2015, the trial court revoked probation. On March 5, 2015, the court reinstated probation, reduced certain felonies to misdemeanors pursuant to Proposition 47, and sentenced appellant to three years in prison in SC183159B and one year and four months in prison in SC183056A. The court found that the suspended sentence from June 25, 2013 remained suspended, and placed appellant on probation for three years.
In November 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which reduced certain drug-related and theft-related offenses that previously were felonies to misdemeanors. (§ 1170.18, added by Prop. 47, § 14, approved by the voters at the Gen. Elec. (Nov. 4, 2014).) It also enacted a procedure permitting inmates who are serving felony sentences for offenses that Proposition 47 reduced to misdemeanors to petition to have their felony convictions reclassified as misdemeanors and to be resentenced based on the reclassification.
On July 13, 2015, the trial court revoked probation in Case No. SC183159B, and a warrant issued in both cases as a result of appellant absconding from the supervision of the probation officer.
On August 4, 2015, a felony complaint was filed charging appellant with identity theft (§ 530.5, subd. (a), counts 1 & 2) and felony burglary (§ 459, subd. (b), count 3). The complaint also alleged that appellant had a prior strike as a result of the Oregon burglary conviction.
On August 13, 2015, appellant admitted violating his probation in SC183056A and SC183159B, pleaded guilty to one count of identity theft, and admitted the Oregon prior strike. The plea agreement provided that the aggregate sentence for the three cases would be five years and eight months.
On November 5, 2015, the trial court revoked probation in the two earlier cases and sentenced appellant to an aggregate term of five years and eight months, with 795 days of custody credits. Appellant filed a timely notice of appeal as to all three cases.
DISCUSSION
Appellant contends the trial court abused its discretion and violated his due process rights by denying his request for a continuance at the November 5, 2015 sentencing hearing. We reject the contention.
Background
At the November 5, 2015 hearing, defense counsel stated that the sentence the trial court had imposed under Proposition 47 on March 5, 2015 may have been unauthorized. Counsel noted there were "conflicts in the law" and "it's really not clear" whether a court has the authority, upon resentencing, to "increase from a mid term to an upper term" or "a concurrent . . . to a consecutive." Counsel also said she "may have been remiss in not renewing the motion to strike the Oregon prior."
The trial court reminded defense counsel that it had sentenced appellant many months ago, "with [defense counsel's] office present," and with the office "heartily advocat[ing] for [the sentence] on behalf of [appellant]." The court also noted that appellant had been "given" a "break." The court then reminded counsel that she had raised the same issues at an October 15, 2015 hearing, and that she had not filed a motion or points and authorities despite having had time to do so. Counsel acknowledged she had not filed a motion and said she "can't file any authorities" because she has "not been able to find any clear authority on the matter," even after consultation "with appellate counsel to determine the state of the law."
The trial court expressed an inclination to undo the plea deal and asked defense counsel whether appellant was requesting to withdraw his plea. Counsel responded that he was not. The prosecutor argued there was no basis to allow appellant to withdraw his plea. The prosecutor explained that the sentence imposed had been "specifically negotiated for [appellant's] benefit," and that appellant had entered the plea knowingly and voluntarily, "knowing full well his own criminal history," and having been advised of all of the consequences by "three public defenders, at least." The prosecutor further stated, "Despite [defense counsel's] statements today that she should have done something or is not sure whether there is something else out there, that is not legal grounds to withdraw a validly entered plea."
Thereafter, the trial court indicated it was no longer inclined to undo the plea, and asked defense counsel to rearticulate what she sought at the sentencing hearing. Counsel responded, "My client wanted a continuance. He wants to continue in Thinking for Change whatever happens here." Counsel said she also wished to complete her research regarding whether appellant's Oregon prior was "a valid prior." She said she had "come across something" related to the issue and "went into a thought process that I didn't have the time [to complete] because I was working on a time-not-waived jury, et cetera." "I was hoping that we could put this over so I can see whether there's any point in raising that issue or not. I don't know." She reiterated that appellant did not wish to withdraw his plea, but that he wanted to see if there was "any way he could be granted another opportunity to do drug court." The court reminded counsel that the negotiated disposition did not contemplate drug court, and counsel responded, "I appreciate that, Your Honor. It is probably a moot point."
The trial court denied the request for a continuance, stating, "I don't find that there's good cause to continue the sentencing at this time, so we're going to go forward with the sentencing, and I'll make the best decision I can as to credits when we get to that point." After hearing argument from the parties regarding presentence credits, the court revoked appellant's probation and sentenced him to an aggregate term of five years and eight months, with 795 days of custody credits.
Discussion
"Continuances shall be granted only upon a showing of good cause." (§ 1050, subds. (b) & (e).) Trial courts are vested with broad discretion to determine whether good cause exists to grant a requested continuance, and its decision is reviewed for abuse of discretion. (People v. Beames (2007) 40 Cal.4th 907, 920.)
Appellant argues there were "three factors" that provided good cause for a continuance in this case. First, he asserts a continuance was necessary so that defense counsel could "present a legal-factual basis for the court to consider a sentence to Thinking for Change as an alternative to a state prison sentence." The issue of whether appellant could enroll in drug court, however, had been previously adjudicated. As noted, when defense counsel informed the trial court that appellant wished to be considered for drug court as an alternative to a state prison sentence, the court reminded counsel that the previously negotiated disposition "does not contemplate Adult Drug Court." Counsel acknowledged this, and conceded that the issue was "probably a moot point." Thus, there were no unresolved issues relating to drug court that justified a continuance.
Second, appellant asserts that defense counsel needed additional time to complete her research regarding whether the Oregon prior qualified as a prior strike for Three Strikes purposes. The record shows, however, that this issue was thoroughly litigated and adjudicated on February 21, 2013. That day, the trial court heard appellant's motion to strike the Oregon prior and ruled that the Oregon prior "was for the same offense that in California would be a strike. That is, an entry into a dwelling house with intent to commit theft satisfied the California statute. And so I would find that it is a valid prior for the purposes of a strike, as well as prior conviction in California." In requesting a continuance on this ground, counsel stated only that she hoped, upon further research, to be able to determine "whether there's any point in raising that issue or not." Under these speculative circumstances, and without any indication as to why counsel believed the prior ruling might be incorrect, the court could reasonably determine that counsel's rationale did not constitute good cause for a continuance.
Third, appellant asserts a continuance was necessary so that defense counsel could "review the earlier court rulings related to presentence credits." The parties, however, had discussed presentence credits at an earlier hearing, on October 15, 2015, and had exchanged their calculations prior to the November 5, 2015 sentencing hearing. The trial court expressed its understanding that the difference between the two calculations was "whether or not the defendant [is] entitled to credits from his time in a residential treatment program." In addition, the prosecutor argued that some of the actual days served by appellant were attributable to misdemeanors and not to the underlying crime, whereas defense counsel argued that all of the actual days should offset the prison sentence. In other words, the parties were in agreement as to the time appellant had spent in custody, and disagreed only about the legal implications of the time served. Defense counsel did not articulate at any time that she needed additional time to evaluate those legal issues, and the parties fully addressed the issues at the November 5, 2015 hearing. Appellant has failed to demonstrate that there were any issues relating to credits that provided good cause for a continuance.
We also reject appellant's argument that the trial court's denial of a continuance deprived him of his constitutional right to due process. The denial of a continuance may constitute a constitutional violation if it is "so arbitrary as to violate due process." (People v. Courts (1985) 37 Cal.3d 784, 791, citing Ungar v. Sarafite (1964) 376 U.S. 575, 589.) "There are no mechanical tests for deciding when a denial of a continuance . . . violate[s] 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." (Ungar v. Sarafite, supra, 376 U.S. at p. 589.) Appellant complains that the court deprived defense counsel of an opportunity to adequately prepare for sentencing. In light of our conclusion that the court did not arbitrarily deny appellant's request for a continuance, we also conclude there was no due process violation.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------