Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F18006
McAdams, J.
A jury convicted defendant Ramon Roberto Uribe of one count of second degree robbery (Pen. Code, § 211) and one count of false imprisonment (§ 236). The jury also found true enhancement allegations that defendant had personally used a firearm to commit both offenses (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d)). The trial court sentenced defendant to 12 years in prison (the lower term of two years for the robbery, plus 10 years for the gun enhancement). The court imposed two years on the false imprisonment count, plus 10 years for the gun enhancement, but stayed that sentence pursuant to section 654.
All further statutory references are to the Penal Code, unless otherwise stated.
The day before trial, defendant made a Marsden motion to remove his attorney and appoint new counsel. After the court found that there was no conflict between defendant and defense counsel, defendant made a motion to continue the trial so that he could retain private counsel. The court granted the motion, but then determined that it could not obtain a knowing and intelligent waiver of defendant’s speedy trial right and denied the motion. On appeal, defendant contends that the court abused its discretion and violated his Sixth Amendment right to counsel when it denied his request for a continuance to retain new counsel. While the appeal was pending, defendant filed an abandonment of the appeal. For the reasons set forth below, we will dismiss the appeal.
People v. Marsden (1970) 2 Cal.3d 118.
Facts
On June 16, 2009, after spending several hours looking for work, without success, defendant and Juan Galvez decided to rob someone. Galvez had a gun; it was not loaded. On a dirt road near some lettuce fields in Watsonville, defendant and Galvez flagged down a lunch truck driven by Antonio Mendoza. Mendoza stepped out of the truck. He testified that defendant put the gun up against his stomach and demanded his money. Defendant testified that he pushed Mendoza in the chest, pulled up his sweatshirt, and pointed at the gun, which was in his waistband.
Mendoza gave the men approximately $650. Galvez secured Mendoza’s hands and covered his eyes with duct tape and placed him inside the lunch truck. Before the robbers left, Mendoza got his hands loose and pulled the duct tape off of his eyes. Galvez returned and demanded Mendoza’s cell phone. Mendoza pushed Galvez away, locked himself inside the lunch truck, and called 911. Galvez and defendant fled in defendant’s car. Mendoza followed them in the lunch truck, updating the 911 operator regarding his location. Defendant’s car went off the road and the robbers were apprehended a short time later.
Procedural History in Trial Court
Defendant was arraigned on July 17, 2009; he pleaded not guilty and denied the enhancements. He did not waive his speedy trial right. The court determined that the 60-day deadline for trying the case (§ 1382, subd. (a)(2)) was September 15, 2009, and set the case for trial on September 14, 2009.
On the first day of trial, after the court discussed the motions in limine and issued its tentative rulings, defendant made a Marsden motion to remove his attorney and appoint new counsel. Defendant complained primarily about plea negotiations and his prison exposure. He wanted another attorney and to see if the prosecutor could “give [him] a better deal, a fair deal.” The court explained that no other attorney had the ability to get him a better deal than the 12 years that had been offered, given the mandatory nature of the gun enhancement, and that the only person who could strike the gun enhancement was the district attorney, who was not willing to do so. Consequently, defense counsel, no matter who it was, could not guarantee less than 12 years. Defense counsel stated that the prosecutor had tried to get authority to offer five or six years, but could not get permission to do so. The court discussed the sentencing options if the prosecution struck the gun enhancement and defendant asked “why the prosecution was being so severe with [him].” Defendant complained that his attorney “would scold” him and got angry with him. He alleged that defense counsel had told him the gun enhancement was no longer an issue and accused counsel of being disinterested. Defense counsel told the court that he had never told defendant that the enhancement was not at issue and the court believed defense counsel. Defendant alleged that defense counsel had told him the maximum sentence was 12 years, when it was 15 years or more. The court not believe defendant and said, “I don’t think you are hearing” defense counsel. The court concluded that there were insufficient facts to find a conflict between defendant and his counsel and denied the Marsden motion.
Defendant said he wanted to waive time to think about whether he wanted to go to trial. The court stated that it was not an option, since defendant had not previously waived time, the jury panel had been ordered, they had already gone over the motions, and were ready to proceed. The court found no good cause to continue the trial.
Defendant asked for time to see if he could hire an attorney and stated that he was going to ask his family to help him pay for private counsel. The court initially denied that request, noting that time was not waived and that defendant had been given priority over other cases. Defendant pleaded for an opportunity to hire new counsel and said he would have a new lawyer within two weeks. The court agreed to continue the case, but when the court attempted to obtain a waiver of defendant’s speedy trial right, defendant seemed to be confused, asking whether he was giving up his right to trial and stating “I don’t understand very well.” The court stated, “The matter is confirmed for tomorrow. I cannot apparently get a time waiver in this case.” Defense counsel asked for permission to speak with defendant to explain the waiver and the court agreed.
After defendant consulted with defense counsel, the court tried a second time to obtain a waiver and asked defendant whether he was willing to give up his right to have a jury trial within 60 days of the date he had entered his plea. Defendant said “yes, ” but when the court asked him whether he understood what he was doing, defendant said, “I’m a little bit confused.” The court stated, “I can’t accept a time waiver at this point from this defendant” and ordered that the case proceed to trial.
Status of Appeal & Request to Abandon
On appeal, defendant contends that the court abused its discretion and violated his Sixth Amendment right to counsel when it denied his request for a continuance to retain counsel of his choosing.
This case was fully briefed in July 2010. The parties waived oral argument and the case was submitted on July 30, 2010. On September 2, 2010, after this court began working on the appeal, we received “Appellant’s Voluntary Abandonment of Appeal, ” accompanied by declarations signed by both defendant and his appellate counsel. In his declaration, defendant states that he has spoken with his attorney about abandoning his appeal; that he understand that his request is irrevocable and that if he abandons this appeal, he has no further right of appeal; and that he wishes to abandon the appeal.
The abandonment or voluntary dismissal of a criminal appeal is governed by California Rules of Court, rule 8.316, which provides: “(a)... [¶] An appellant may abandon the appeal at any time by filing an abandonment of the appeal signed by the appellant or the appellant’s attorney of record. [¶] (b)... [¶]... [¶] (2) If the record has been filed in the reviewing court, the appellant must file the abandonment in that court. The reviewing court may dismiss the appeal and direct immediate issuance of the remittitur.”
“[O]nce the record has been filed in the reviewing court, dismissal of the appeal is within the reviewing court’s discretion.” (People v. Nelms (2008) 165 Cal.App.4th 1465, 1470.) In Nelms, the Court of Appeal declined to dismiss defendant’s appeal of his smuggling conviction, even though he had filed a notice of abandonment and the state had filed no opposition, because the filing of the abandonment was an attempt to shield from review the trial court’s dismissal of the conviction during the pendency of the appeal, an act in excess of its jurisdiction. The appellate court used the appeal as a vehicle for instructing trial courts on the limits of their jurisdiction under section 1170, subdivision (d). In Lucchesi v. City of San Jose (1980) 104 Cal.App.3d 323 (Lucchesi), the Court of Appeal declined to dismiss the city’s appeal and proceeded to decide the case, despite the city’s request for voluntary dismissal and the cross-appellant’s motion for dismissal, because “[t]he issue raised by the City’s appeal is a question of first impression and of great public interest that is likely to arise and again be litigated and appealed.” (Id. at p. 326, fn. 2.)
We have considered defendant’s abandonment in light of the issues raised in his appeal and the necessity of deciding this appeal on its merits. After such consideration, we conclude that the issues, although important to the parties, are not “of sufficient interest and importance....” to the legal community at large to warrant decision in the face of defendant’s abandonment of the appeal. (Lucchesi, supra, 104 Cal.App.3d at p. 326, fn. 2.) Furthermore, unlike the situation in Nelms, the trial court’s order was not an act in excess of its jurisdiction, nor does this appeal provide an opportunity for instruction. Therefore, we will accede to defendant’s request and dismiss the appeal.
DISPOSITION
Defendant’s appeal is dismissed. The remittitur shall issue forthwith.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.