P. v. Adams
Filed 1/21/14 P. v. Adams CA4/1
OFFICIAL REPORTS
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prohibits courts and parties from citing or relying on opinions not certified
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8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TYLER ADAMS,
Defendant and Appellant.
D063005
(Super. Ct. No.
SCN236630-3)
APPEAL
from a judgment of the Superior Court of
San Diego County, K. Michael Kirkman, Judge. Affirmed.
Kurt
David Hermansen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for
Plaintiff and Respondent.
In
an amended complaint filed in July 2009, Tyler Adams and three others were
charged with numerous counts of theft and financial fraud. During the next two and one-half years, Adams obtained multiple delays of
his trial because he filed a repeated series of Marsden
title="">[1]and Faretta
title="">[2] motions that created a
revolving door of appointed counsel,
retained counsel, and self-representation.
In addition, three other delays occurred when Adams's behavior compelled the
court to suspend proceedings to allow
Penal Code
section 1368.
In
the final round of representational shuffling, Adams's retained counsel asked
to be relieved because Adams had defaulted on his agreement to hire essential financial experts. The court relieved retained counsel and
reappointed the alternate public defender, who subsequently moved for a four-month
continuance. When Adams objected and declined to
waive time for trial, the court found good cause to grant the continuance over Adams's objection. However, Adams then asked to be allowed to represent himself to preserve the
existing trial date and, after conducting a Faretta
hearing, the court granted his request to represent himself. Several weeks later, Adams pleaded guilty to all of
the charged counts and associated allegations.
The court sentenced him to 14 years in prison.
On
appeal, Adams claims he was coerced into waiving his right to be represented by
counsel by the court's erroneous rulings, and therefore his waiver of
compel his retained counsel to continue representing him, and then erroneously
refused to compel the newly reappointed alternate public defender to proceed to
trial less than eight weeks after being appointed, which forced Adams into
choosing between waiving his speedy trial
rights (to preserve his right to counsel) or waiving his right to counsel
(to preserve his speedy trial rights).
We find no error, and affirm the judgment.
I
PROCEDURAL HISTORY
A. The First Two Years
In
2009 Adams (along with three others) was charged, in a multi-count complaint,
with committing numerous thefts and financial frauds. He initially requested self-representation,
which was granted. One month later, the
revolving door of changing representation and attendant continuances began when
he sought and obtained appointed counsel.
Three months later, he again moved for and obtained an order allowing
him to represent himself, but two months thereafter he again moved for
appointment of counsel, which was granted.
In
September 2010, the trial court (noting it appeared Adams might be intentionally
declining to act responsively) found it necessary to suspend proceedings to
permit a psychological evaluation of Adams under section 1368. After
reviewing the doctor's report, the court found Adams was competent for
trial. In November 2010, his appointed
counsel moved to continue the preliminary hearing. When Adams refused to respond to the court's inquiry whether he would waive
time for the preliminary hearing, the court deemed his nonresponse to be an
objection and granted the continuance over his objection. Two months later, the court again suspended proceedings
to permit a psychological evaluation of Adams under section 1368, but characterized his behavior as "suspicious"
and "dubious." However, after
reviewing the doctor's report, the court again found Adams was competent for trial.
In
April 2011, Adams's appointed counsel again asked for a continuance of the
preliminary hearing. Adams requested and obtained a
and rejected his request for new appointed counsel. Adams then asked to represent himself to preserve the scheduled
preliminary hearing date but, after the court reminded him of the danger of
self-representation, withdrew his request.
In June 2011 the prosecution filed an amended complaint alleging 48
counts sounding in theft and financial fraud (along with associated allegations
of the taking of property exceeding specified amounts) and, after a three-day
preliminary hearing, Adams was bound over for trial on all counts.
In
August 2011 Adams retained private counsel to substitute for the appointed counsel and
agreed to a February 2012 trial date and to waive speedy trial rights. However, in December 2011 the court again
suspended proceedings to permit a psychological evaluation of Adams under section 1368 after Adams reportedly attempted
suicide. After reviewing the doctor's
report, the court again found Adams was competent for trial, and continued the trial date to March 15, 2012. The trial was subsequently
continued to July
24, 2012, and then again to October 16, 2012, with time waivers by Adams.
B. The Alleged Errors
On
August 22, 2012, Adams's retained counsel asked to be relieved because Adams
had agreed to provide, but had not yet provided, funds for counsel to hire
forensic financial experts, which counsel indicated were necessary because of the
complexity of the case. Although Adams had provided counsel with
a phone number of the person who would provide funds for that purpose, counsel's
calls to that phone number produced no response. Counsel stated he could not effectively
represent Adams without those experts, and therefore asked to be relieved as
counsel. The court granted retained
counsel's motion to withdraw and appointed new counsel for Adams. Adams then claimed "[w]e just had funds allocated yesterday for [the
experts and] will have it to him very shortly," which Adams claimed was being
provided by one of his business associates.
The court informed Adams that (1) his retained counsel would be relieved, (2) the October 16
trial date would be maintained, and (3) the matter was set for confirmation of
appointed counsel for August 28, 2012. However, the court assured Adams that if in
fact (as Adams claimed) he could arrange for funds to hire the witnesses, and
could do so not later than August 27 as Adams represented he would, the court
would revisit the issue on August 28.
If, however, Adams could not come up with the necessary money, the alternate public
defender would take over the case. At
the August 28 hearing, appointed counsel was confirmed and the October 16 trial
date was confirmed. On appeal, Adams claims that it was error
to grant retained counsel's motion to withdraw.
At
the September 12, 2012, readiness conference, Mr. Reichert (the newly appointed
counsel from the alternate public defender's office) explained that because of the
complexity of the case, involving over 40 counts, between 20,000 and 30,000
pages of discovery, perhaps 50 witnesses, and the necessity of locating viable
expert witnesses, a continuance of the October 16 trial date would be
necessary. However, Reichert explained Adams wanted to proceed with
the October 16 trial date. The court
observed that because of the complexities of the case and the number of counts,
"[a]ny attorney would require a significant period of time to come up to
speed," and asked whether Adams wanted to reconsider whether or not to waive time. Adams reiterated he did not want to waive the existing trial date. Reichert indicated it would be "impossible
for me to be ready" for an October 16 trial date and asked (considering his
other commitments) for a four-month continuance of the trial date. The court found the additional time required
for Reichert to prepare for trial constituted good cause to grant a
continuance, and then turned to "determin[ing] a viable trial date." The court concluded, considering the
complexity of the case and counsel's other commitments, the matter should be
continued for trial until February 6, 2013. On appeal, Adams asserts the court erred
by granting a trial continuance to Reichert over Adams's objection.
After
the court stated it would grant Reichert's requested continuance, Adams responded that he would "rather
go [pro. per.] and maintain the October 16 date." Reichert stated Adams was "making a
mistake by doing this" and asked for time to confer with Adams over the lunch hour, and
the court continued the hearing until the late afternoon. At the resumption of the hearing that
afternoon, Reichert stated he had advised Adams about the difficulties of self-representation but Adams nevertheless wished to
proceed in pro. per. After the court
also cautioned him against self-representation, Adams reiterated his desire to
represent himself, the court conducted a Faretta
hearing, found Adams knowingly and voluntarily waived his right to counsel and granted his
Faretta motion. On appeal, Adams asserts he did not
voluntarily waive his right to counsel but was forced to waive counsel because
the twin errors--relieving retained counsel and granting a continuance to
appointed counsel--compelled him to represent himself as a condition to
preserving his speedy trial rights.
II
ANALYSIS
A. The Order Permitting Retained
Counsel to Withdraw Was Not an Abuse of Discretion
Adams asserts the order
granting retained counsel's motion to withdraw was erroneous because the court
could have obviated counsel's grounds for withdrawal by ordering the
appointment of experts at government expense under Evidence Code sections 730
and 731.
Applicable
Principles
A
trial court has the authority under Code of Civil Procedure section 284 to
permit a retained attorney to withdraw as counsel.
determination whether to grant or deny an attorney's motion to withdraw as
counsel of record lies within the sound discretion of the trial court, having
in mind whether such withdrawal might work an injustice in the handling of the
case. [Citation.] 'It is generally recognized that the failure
or refusal of a client to pay or secure the proper fees or expenses of the
attorney after being reasonably requested to do so will furnish grounds for the
attorney to withdraw from the case.' [(
398, 406.)]" (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161,
1173.) An order granting a retained
attorney's motion to withdraw is reviewed for an abuse of discretion and, when
no abuse of that discretion has been demonstrated, any alleged prejudice to the
right of the defendant to effective representation by counsel must be found in
the subsequent acts or omissions of the court in furnishing the defendant with
new counsel. (Prince, at p. 407.)
Analysis
Adams asserts the court should
not have granted retained counsel's motion to withdraw but instead should have sua
sponte ordered the appointment of experts, at government expense under Evidence
Code sections 730 and 731, which would have eliminated the stated basis for
retained counsel's motion to withdraw. The
court in People v Stuckey (2009) 175
Cal.App.4th 898 stated, in dicta, that a court may order the appointment of
experts at public expense even when a defendant has privately retained counsel. (Id.
at p. 908.) However, there is no
authority for the proposition that a court has a sua sponte obligation to invoke Evidence Code sections 730 and 731
on a defendant's behalf. Second, even if
the proceedings could be transmogrified into a motion for the appointment of
experts under those provisions, the appointment is predicated on the twin
showings by a defendant of both an "inability to pay for the experts and
their necessity in presenting a defense at trial." (Stuckey,
at p. 908.) Even assuming retained counsel's statement
that he could not effectively represent Adams without those experts sufficed to
show the necessity element, Adams made no effort to show the inability to pay
element at that hearing. To the
contrary, Adams affirmatively asserted the "funds [were] allocated
yesterday for [the experts and I] will have it to [them] very shortly." The court conditionally accepted Adams's representations
of his ability to fund the experts by stating that if in fact he could arrange
for funds to hire the witnesses, and could do so not later than August 27 as
Adams represented he would, the court would revisit the motion to withdraw on
August 28 with the proviso that, if he did not come up with the necessary
money, the alternate public defender would take over the case.
On
this record, we cannot conclude the trial court abused its discretion when it
granted retained counsel's motion to withdraw rather than taking some
alternative route that was neither sought by Adams nor supported by the
requisite evidentiary showing. Any
alleged prejudice to Adams must be evaluated solely based on the subsequent acts or omissions
of the court in furnishing him with new counsel. (People
v. Prince, supra, 268 Cal.App.2d at p. 407.)
B. The Order Granting a
Continuance to Allow New Appointed Counsel to Adequately Prepare for Trial Was
Not an Abuse of Discretion
Adams asserts the court erred
when it granted, over his objection, the motion by newly appointed counsel for
a continuance of trial because that ruling violated his speedy trial rights.
Applicable
Principles
Section
1382, one of the principal provisions implementing California's statutory right
to a speedy trial, requires that a defendant charged with a felony be brought
to trial within 60 days of arraignment on an indictment or information, absent
the defendant's express or implied consent to having trial set for a date
beyond that period, or where there is "good cause" for the delay.
v. Sutton (2010) 48 Cal.4th 533, 537 (Sutton).) When a defendant expressly states he or she is
unwilling to "waive time," a trial court may nevertheless grant a continuance
if it determines there is "good cause" for the delay. (Id.
at p. 546.)
section 1382 "does not define 'good cause' as that term is used in the
provision, . . . numerous California appellate decisions that have
reviewed good-cause determinations under this statute demonstrate that, in
general, a number of factors are relevant to a determination of good cause: (1)
the nature and strength of the justification for the delay, (2) the duration of
the delay, and (3) the prejudice to either the defendant or the prosecution
that is likely to result from the delay. [Citations.]
further establish that in making its good-cause determination, a trial court must
consider all of the relevant circumstances of the particular case, 'applying
principles of common sense to the totality of circumstances . . . .' [(Stroud
v. Superior Court (2000) 23 Cal.4th 952, 969; [citation])].
a trial court 'has broad discretion to determine whether good cause exists to
grant a continuance of the trial' [(People
v. Jenkins (2000) 22 Cal.4th 900, 1037)], and that, in reviewing a trial
court's good-cause determination, an appellate court applies an 'abuse of
discretion' standard." (
Analysis
Adams
argues the order granting a continuance was an abuse of discretion because (1)
under People v. Johnson (1980) 26
Cal.3d 557 (Johnson) the inability of
a public defender to bring the matter to trial because of conflicting
obligations to other clients does not constitute "good cause" to
continue trial of the matter when a defendant objects and insists on his speedy
trial rights, and (2) the court did not first inquire whether the alternate
public defender's office could have appointed another attorney (i.e., someone
other than Reichert) to take the matter to trial on October 16.
We
reject Adams's claim because it misconstrues the grounds on which the court's
good cause determination rested.
Reichert explained it would be necessary to continue the October 16
trial date, less than five weeks away, because of the complexity of the
case. The court was aware of the
complexity because (1) the trial involved 48 counts, each involving something
different and requiring different witnesses, (2) there were between 20,000 and
30,000 pages of discovery, (3) the defense had yet to indentify (much less
retain) viable expert witnesses, (4) the defense would have to review a
preliminary hearing transcript covering several days of testimony, and (5) it
was at least a three-to-four-week trial. Reichert indicated that, considering these
facts, it would be "impossible for me to get ready" for an October 16
trial date. The court observed, even
though Reichert was "one of the best in the entire county," the
complexities of the case and the number of counts would require "any
attorney [to spend] a significant period of time to come up to speed." After Adams reiterated he did not want to
waive the existing trial date, the court found the additional time required for
Reichert to prepare for trial constituted good cause to grant a continuance,
and then turned to "determin[ing] a viable trial date." The court concluded, because of the
complexity of the case and counsel's other commitments, the matter should be
continued until February 6, 2013, for trial.
The
court made two separate determinations: (1) whether trial could commence on October 16, 2012, as demanded by Adams, considering
Reichert's need to prepare for this complex case; (2) if Reichert could not
adequately be prepared by October 16, when
could trial commence considering the complexities of this case, counsel's other
commitments, and the impending holidays. We conclude the trial court, "applying
principles of common sense to the totality of circumstances" (
Cal.4th at p. 969), did not abuse its discretion when it made the initial
determination that trial could not commence as scheduled. The nature and strength of the justification
for the delay is patent: a trial court could well conclude that five weeks was
wholly inadequate for an attorney to digest between 20,000 and 30,000 pages of
discovery and several days of preliminary hearing transcripts, to evaluate and
prepare to defend against 48 separate counts involving different witnesses, and
to find, retain, and educate experts on financial crimes issues. Although the duration of the delay was 15
weeks, the court was entitled to weigh that (1) the case was exceedingly
complex, (2) the court was aware that Adams (during the time in which he had
been represented by retained counsel) had already acquiesced to or caused
numerous postponements totaling 13 months and it was his conduct (of defaulting
on his commitment to his retained counsel to fund experts) that necessitated
the new delay, (3) Reichert had two other significant cases requiring attention
during the 15-week period, and (4) court holidays intervened during this period. Finally, apart from the inherent harm to
speedy trial rights attendant to any continuance, there appears to have been no
further prejudice to Adams likely to result from the delay.
The
foregoing factual milieu convinces us Adams's effort to bring this case under
the aegis of Johnson, supra, 26
Cal.3d 557 is misguided. Adams asserts,
under Johnson, that when a defendant
objects to his or her counsel's request for a continuance and insists on his or
her speedy trial rights, a court may not find "good cause" for the
continuance merely because the counsel has conflicting obligations to other
clients that prevent him or her from going to trial within the requisite time
frame. However, the Johnson court (after concluding the delay of the trial in that case
could not be upheld on the basis of defense counsel's consent) examined
the circumstances of that case, the trial court properly could find good cause
existed to support the numerous continuances of the trial beyond the 60-day
period. Johnson,
addressing the
good-cause issue, recognized that "[w]hat
constitutes good cause
for the delay
of a criminal
trial is a
within the discretion
of the trial
at p. 570), and then reviewed a
variety of circumstances determined by past decisions either to constitute or
not constitute good cause, noting good cause had been found to exist when
conduct of the
defendant, or was for the
the unexpected illness
or unavailability of
counsel or witnesses. However, delay caused by
administration, was not recognized as "good cause." (Ibid.)
we perceive no
objection to the
principles stated in
the preceding paragraph,
we question those
decisions which assume
that court congestion
or excessive public
defender caseloads necessarily
constitute good cause
to deny dismissal." (Id.
at pp. 570-571.)
observed:
"A defendant's
be denied simply
by the failure
of the state
courtrooms or judges
to enable defendant
to come to
statutory period. The right
to provide enough
public defenders or
appointed counsel, so
that an indigent
must choose between
the right to
competent counsel. '[U]nreasonable
be justified by
simply asserting that
the public resources
provided by the
State's criminal-justice
system are limited
and that each
case must await
its turn.' " (Id.
at p. 571.)
court congestion contained in the American Bar Association's standards for
speedy trial, which took the view that
a failure to
to dispose of
the usual number
of cases within
the speedy trial
time limits is
not excused while
would justify added
then extended that reasoning to delays caused by chronic congestion of a public
defender's caseload:
"The
same reasoning, distinguishing between chronic conditions and exceptional
circumstances, applies to the delay caused by the crowded calendars of public
defenders. The state cannot reasonably
provide against all contingencies which may create a calendar conflict for
public defenders and compel postponement of some of their
hand, routine assignment of heavy caseloads to understaffed offices, when such
practice foreseeably will result in the delay of trials beyond the 60-day
period without defendant's consent, can and must be avoided. A defendant deserves not only capable counsel,
but counsel who, barring exceptional circumstances, can defend him without
infringing upon his right to a speedy trial. Thus the state cannot rely upon the
obligations which an appointed counsel owes to other clients to excuse its
denial of a speedy trial to the instant defendant." (Id.
at p. 572.)
Thus,
Johnson addressed whether chronic
understaffing by the public defender could alone suffice as "good cause"
to override a defendant's speedy trial rights, and concluded those facts did
not alone provide good cause for a continuance, reasoning
the public defender's motion for a continuance was "clearly posited . . .
not upon a benefit to Johnson but upon commitment to clients other than Johnson.
He revealed that his representation of
other clients created a conflict which he proposed to resolve to Johnson's
detriment." (Johnson, supra, 26 Cal.3d at p. 572.) However, where a public defender's caseload
does not represent a systemic and chronic impediment to preserving a defendant's
speedy trial rights, continuances granted in part based on those conflicts fall
outside Johnson's concerns. (Sutton,
supra, 48 Cal.4th at pp. 552-554.)
Here,
unlike Johnson, Reichert's motion for
a continuance was clearly posited to
prepare a defense to a complex case--and was not based solely (or even
primarily) on conflicting commitments to other clients that he proposed to
resolve to Adams's detriment. Moreover, although
the length of the continuance did
necessarily involve consideration of Reichert's other clients, there is no
suggestion the caseloads of the alternate public defender's office created such
a systemic, chronic impediment to speedy trials in "run-of-the-mill
criminal cases" that this specific delay can fairly be attributed to the
fault of the state. (Sutton, supra, 48 Cal.4th at p. 555 ["[w]here, as here, the unavailability of counsel was not fairly
attributable to the state's fault or neglect, the circumstance that the
unavailability of [defendant's] counsel was not caused by an 'exceptional
circumstance' did not preclude the trial court from determining that counsel's
unavailability constituted good cause . . . to delay the trial"].)
Adams
finally argues it was error under Johnson
to force him into self-representation without first inquiring whether his speedy
trial rights could have been preserved by having the alternate public defender's
office appoint another attorney (other than Reichert) to take the matter to
trial on October 16. Certainly,
appointed counsel is so overburdened with conflicting commitments that his or
her representation of other clients created a conflict that counsel proposes to
resolve to the detriment of the defendant's speedy trial rights, "the court
should inquire whether the assigned deputy could be replaced by another deputy
or appointed counsel who would be able to bring the case to trial within the
statutory period. In some instances,
appointment of new counsel will serve to protect defendant's right to a speedy
trial." (Johnson, supra, 26 Cal.3d at p. 572.) However, Johnson
went on to state that "[i]f, on the other hand, the court cannot ascertain
a feasible method to protect defendant's right, the court will have no
alternative but to grant a continuance . . . ." (Id.
at pp. 572-573.) Here, the court had
already observed that because of the complexities of the case and the number of
counts, "[a]ny attorney would require a significant period of time to come up
to speed" (italics added), and that Reichert was among the best attorneys
in the county and already had some familiarity with the case. Thus, the trial court impliedly found that replacement
by a different appointed counsel would not have permitted the case to be tried within
the statutory period, appointment of new counsel would not have served to
protect Adams's right to a speedy trial, and therefore there was no "feasible
method to protect defendant's right [and] no alternative but to grant a
continuance . . . ."
(Ibid.)
III
CONCLUSION
Adams's fundamental claim on
appeal is that his Faretta waiver of
counsel was involuntary, and his subsequent guilty plea must be reversed,
because the court erroneously relieved retained counsel, and then erroneously
granted appointed counsel Reichert a continuance, errors that forced Adams to forgo representation
to preserve his speedy trial rights.
However, because we have concluded that neither of the rulings on which his
fundamental claim depends was erroneous, Adams's claim of an involuntary waiver of counsel is not persuasive.
DISPOSITION
The
judgment is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] People v. Marsden (1970) 2 Cal.3d 118.
name="_ftn2" title="">[2] Faretta v. California (1975) 422 U.S. 806.
