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P. v. Boothe

P. v. Boothe
03:29:2013






P




>P. v. Boothe

















Filed
3/25/13 P. v. Boothe CA5







NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>






THE PEOPLE,



Plaintiff and
Respondent,



v.



AMBER ELAINE BOOTHE,



Defendant and
Appellant.






F063841



(Super.
Ct. No. CRF35232)





>OPINION




APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tuolumne
County. Eleanor Provost, Judge.

Jennifer A.
Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E.
LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury found Amber Boothe guilty of committing various financial crimes
against her grandmother. Boothe now
challenges the trial court’s denial of a motion to continue her href="http://www.fearnotlaw.com/">sentencing hearing. She contends the court violated her href="http://www.mcmillanlaw.com/">constitutional rights by refusing to
allow her additional time to search for a new attorney in hopes of preparing
and filing a motion for new trial. We
affirm.

FACTUAL AND PROCEDURAL
BACKGROUND


On September 28, 2011, the Tuolumne County District Attorney filed an
amended criminal information charging Amber Boothe with one count of theft from
an elder or dependent adult by a caretaker (Pen. Code § 368, subd. (e);href="#_ftn1" name="_ftnref1" title="">[1] Count
1), one count of identity theft (§ 530.5, subd. (a); Count 2), twelve counts of
second degree commercial burglary (§ 459; Counts 3-14), and one count of
forgery (§ 470, subd. (d); Count 15).
These crimes were alleged to have occurred over the course of nine
months, beginning in July 2010 and ending in April 2011. The victim was Boothe’s 88-year-old grandmother,
Ollie Pauline Donaldson.

Boothe was represented at all stages of the case by a deputy public
defender. The jury trial commenced on
September 28, 2011 and ended on October 6, 2011. Twelve witnesses testified, including the
victim. Boothe took the witness stand in
her own defense.

Ollie Donaldson had spent years living in and around href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Joaquin
County with, or in close proximity to, a granddaughter named Cathy
Bedford. During those years, Cathy
Bedford helped Ms. Donaldson manage her finances. In approximately June 2010,
Ms. Donaldson moved to an assisted living facility in Tuolumne County to
be closer to her son, David Boothe.
David Boothe briefly took over managing Ms. Donaldson’s finances before
delegating the responsibility to his daughter, Amber Boothe.href="#_ftn2" name="_ftnref2" title="">[2]

By July 2010, Amber Boothe had substantial control over Ollie
Donaldson’s bank accounts and credit card.
Ms. Donaldson was living on a fixed monthly income of approximately
$1,132. Boothe was responsible for
ensuring $961 of that income was paid to Ms. Donaldson’s assisted living
facility every month to cover her rent, utilities, and meals.

The prosecution’s evidence showed that in the summer of 2010 Ollie
Donaldson had savings of $1,417 and an outstanding credit card balance of
$341.55. By February 2011, Ms. Donaldson
had no money in her savings account and her credit card debt had ballooned to
$6,470. Meanwhile, numerous overdraft
charges were assessed against Ms. Donaldson’s checking account and the
assisted living facility complained that her monthly rent was not being paid.

Although Boothe attributed some of the spending to her grandmother, she
admitted to taking thousands of dollars from Ollie Donaldson for her own
personal needs. Boothe used the money to
pay for groceries, car insurance, telephone service, utility bills and
miscellaneous items. This included
payments of approximately $1,300 to Pacific Gas and Electric Company and $1,275
to DISH Network for satellite television service. Boothe claimed that all of her activities
were authorized by Ms. Donaldson, who had allegedly agreed to help her during
an extended period of financial difficulty.
When Ms. Donaldson took the stand, she denied Boothe had ever asked
for financial assistance and testified that the behavior in question occurred
without her knowledge or permission.

The jury returned its verdict on October 6, 2011. Boothe was acquitted of second degree
commercial burglary as alleged in Counts 4, 11 and 13, and found guilty on all
remaining charges.href="#_ftn3"
name="_ftnref3" title="">[3]
Sentencing was scheduled to take place 34 days later on November 9,
2011.

When the matter was called at the November 9, 2011 hearing, Boothe’s
counsel told the court: “I’m going to be asking for a continuance on
that.” When asked why, counsel
responded: “She is in the process of trying to hire an attorney for a motion
for new trial….[W]e are doing further investigation on some of the testimony
that [if] it hits pay dirt will be relevant to impeachment of some of the
testimony. I want to be – I’m
purposely being vague on that, but there are some things we’re looking
into.”

The public defender offered no additional information regarding
Boothe’s desire for new counsel. The
prosecutor stated that the People “would vigorously oppose any
continuance.” It was noted that the victim’s
other granddaughter, Cathy Bedford, had driven several hours to attend the
sentencing hearing and was prepared to make a statement to the court.

The court advised defense counsel: “[Y]ou’re going to have to tell me
something more specific about why you think a motion for new trial could
possibly succeed. This was a lengthy
trial. It had a whole lot of
testimony. As I understand it from the
probation report, the victim is now dead so…doing a new trial now is pretty
unlikely, unless you’ve got something pretty darned good. So, I would like to know what you got.”

Defense counsel explained that the victim died of stomach cancer
shortly after the trial was over, but Boothe was not previously aware that Ms.
Donaldson was afflicted with the disease.
Boothe suspected Cathy Bedford had advance knowledge of the cancer
diagnosis, yet gave misleading testimony during trial regarding how Boothe’s
actions negatively impacted Ollie Donaldson’s physical and mental health.

Boothe also believed that certain photographs which had been admitted
into evidence were misleading to the jury.
The pictures depicted Ms. Donaldson’s apartment at the assisted living
facility, but were apparently taken while she was in the process of moving
out. Therefore, according to defense
counsel, the photographs did not accurately reflect the number of household
items that Ms. Donaldson owned at the time.

The prosecutor renewed his objections and challenged the relevance of
Boothe’s accusations. The court denied
the request for a continuance and proceeded with sentencing as scheduled. Boothe was sentenced to five years of
probation and was ordered to serve one year in the county jail.

DISCUSSION

The Request for a Continuance Was Untimely

Section 1050 governs continuances in criminal cases. The statute provides that in order to
continue any hearing in a criminal
proceeding
, “a written notice shall be filed and served on all parties to
the proceeding at least two court days
before the hearing sought to be continued
, together with affidavits or
declarations detailing specific facts showing that a continuance is
necessary….” (§ 1050, subd. (b), italics
added.) “When a party makes a motion for
a continuance without complying with the requirements of subdivision (b), the
court shall hold a hearing on whether there is good cause for the failure to
comply with those requirements. At the
conclusion of the hearing, the court shall make a finding whether good cause
has been shown…. If the moving party is
unable to show good cause for the failure to give notice, the motion for
continuance shall not be granted.”
(§ 1050, subd. (d).)

Boothe contends that she made a “timely request for a continuance to
retain new counsel to investigate a motion for a new trial.” Her contention is not supported by the
record. The public defender made an oral
request for a continuance at the start of the sentencing hearing without
providing advance notice to the prosecution or the trial court. There was a clear failure to comply with the
substantive and procedural requirements of section 1050, subdivision (b).

Without a justifiable explanation for the lack of notice and supporting
documentation, the trial court would have been required to deny Boothe’s
request pursuant to subdivision (d) of the statute. However, it appears the court and counsel
addressed the merits of the continuance motion without discussing its
untimeliness under subdivision (b), such that no hearing was held to determine
whether good cause existed for the lack of notice. Thus, while we reject the notion that
Boothe’s request was timely, it is appropriate to address the merits of her
remaining arguments on appeal.

The Denial of a Continuance Did Not Violate
Boothe’s Constitutional Rights


Boothe argues that the trial court violated her rights to due process
and counsel of choice as guaranteed by the Sixth
and Fourteenth Amendments
to the federal Constitution, and equivalent
provisions under the state Constitution.
“‘The right to the effective assistance of counsel “encompasses the
right to retain counsel of one’s own choosing.”’ Further, ‘due process of law comprises a
right to appear and defend with retained counsel of one’s own choice.’” (>People v. Jeffers (1987) 188 Cal.App.3d
840, 849 (Jeffers), citations
omitted.)

Boothe’s contentions do not implicate Marsdenhref="#_ftn4"
name="_ftnref4" title="">[4] rights
because she never made a motion to substitute counsel, did not seek to replace
her appointed counsel with other
appointed counsel, and did not assert or imply that her attorney’s performance
was constitutionally inadequate. (>People v. Blake (1980) 105 Cal.App.3d
619, 622-623; People v. Molina (1977)
74 Cal.App.3d 544, 548-549.) The public
defender stated that Boothe was “in the process of trying to hire an attorney
for a motion for new trial,” indicating her desire to switch from appointed
counsel to retained counsel. Trial
courts are not required to analyze a defendant’s reasons for wanting to change
attorneys in this type of scenario. (>Molina, supra, at pp. 548-549; >People v. Courts (1985) 37 Cal.3d 784,
795, fn. 9 (Courts).) The issue is whether the trial court acted
within its authority when it denied Boothe’s request to continue the sentencing
hearing.

A continuance may only be granted for good cause, and trial courts have
broad discretion to determine whether good cause exists. (§ 1050, subd. (e); People v. Alexander (2010) 49 Cal.4th 846, 934 (>Alexander).) The denial of a motion for continuance is
reviewed for abuse of discretion. (>People v. Mungia (2008) 44 Cal.4th 1101,
1118.) This standard applies to motions
to continue sentencing hearings as well as requests for time to allow a
defendant to retain different counsel. (See,
e.g., People v. Snow (2003) 30
Cal.4th 43, 77 [continuance to prepare a new trial motion]; >Jeffers, supra, 188 Cal.App.3d at p. 850 [continuance to permit
representation by retained counsel].)
The party challenging the denial of a continuance bears the difficult
burden of establishing that the court’s discretion was abused. (People
v. Beames
(2007) 40 Cal.4th 907, 920 (Beames).)

Our analysis considers that the right to defend with retained counsel
“is not absolute: it must be carefully weighed against other values of
substantial importance, such as that seeking to ensure orderly and expeditious
judicial administration, with a view toward an accommodation reasonable under
the facts of the particular case.” (>People v. Byoune (1966) 65 Cal.2d 345,
346.) A continuance to obtain counsel
may be denied if the defendant has been unjustifiably dilatory. (Ibid;
Courts, supra, 37 Cal.3d at pp.
790-791.) The trial court is generally
“within its discretion to deny a last-minute motion for continuance to secure
new counsel.” (People v. Keshishian (2008) 162 Cal.App.4th 425, 429.) “‘[O]nly an unreasoning and arbitrary
“insistence upon expeditiousness in the face of a justifiable request for
delay” violates the right to the assistance of counsel.” (Alexander,
supra, 49 Cal.4th at pp. 934-935.)

The trial court’s broad discretion was not abused in this case. At the conclusion of trial, Boothe was
advised to “get [her] affairs in order” and prepare for immediate incarceration
at the time of sentencing. Boothe was
convicted on October 6, 2011, and nearly five weeks elapsed before she was
sentenced on November 9, 2011. She
did not seek a continuance during the interim.
Instead, Boothe waited until the morning of the date reserved by the court,
the prosecutor, and the victim’s family for sentencing. No explanation was given for the last-minute
nature of her request.

Apart from the untimeliness, Boothe had not yet secured new counsel,
offered no evidence of her efforts to find new counsel, and did not identify a
particular attorney whom she wished to retain.
This further supports the denial of her request. (See People
v. Johnson
(1970) 5 Cal.App.3d 851, 858-859 [defendant asserted his desire
to retain private counsel on the first day of trial without any evidence of his
efforts to obtain representation].)
Trial courts have greater latitude to deny a continuance when the
prospect of retaining private counsel is “still quite speculative at the time
the motion for continuance [i]s made.” (>Courts, supra, 37 Cal.3d at p. 791, fn. 3.)

The constitutional protections upon which Boothe relies extend to
defendants who are “‘financially able
to retain an attorney of [their] own choosing.’” (Courts,
supra, 37 Cal.3d at p. 790, italics
added.) Given that Boothe was
represented by a deputy public defender, she was presumably unable to employ
counsel. (See § 987, subd. (a).) This is consistent with her testimony that
she took money from the victim to help alleviate her own dire financial
situation. The court also reviewed a
probation report which indicated that Boothe’s monthly expenses more than twice
exceeded her monthly income. The lack of
evidence that Boothe was financially capable of hiring private counsel is
another factor supporting the trial court’s decision. (People
v. Pigage
(2003) 112 Cal.App.4th 1359, 1367 [“There is no evidence
defendant attempted to retain counsel, or had even taken steps to secure funds
to hire private counsel”].)

Boothe’s attempt to analogize this case to People v. Trapps (1984) 158 Cal.App.3d 265 (Trapps) is not persuasive.
The Trapps defendant requested
a continuance of his sentencing hearing because he was in the process of
seeking counsel to replace a court-appointed attorney with whom he claimed to
have a conflict. (Trapps, supra, 158
Cal.App.3d at p. 270.) The trial court
denied his request. The Court of Appeal
found this was an abuse of discretion in light of the following circumstances:
“This was a sentencing, not a trial. The
sentencing which took place was not a lengthy proceeding and no witnesses were
called. It had already been delayed
three months, and appropriately so, to enable the Department of Corrections to
do a diagnostic study of Trapps. Trapps had other charges still pending in the
same court. When Trapps moved to
continue his sentencing, he had just returned from the study and was not
unjustifiably dilatory in his request.”
(Id. at pp. 271-272.)

In contrast to the Trapps
defendant, Boothe was not in custody prior to sentencing. She had more than a month between conviction
and sentencing to search for new counsel or, at the very least, to give notice
of her need for additional time.
Boothe’s request was made on the day of the sentencing hearing with no
prior filing of a motion to continue, no advance notice, and no explanation for
the delay.

Several other factors distinguish this case from Trapps. Boothe made no
complaints about her trial counsel. She
did not have other charges still pending in the same court. Her request contemplated not only a
postponement of sentencing, but an indefinite delay to allow for proceedings
related to a new trial motion. Other
witnesses were scheduled to appear at the hearing; one of the victim’s family
members had travelled a considerable distance to make a statement to the court.

The circumstances reflected in the record support the conclusion that
Boothe was unjustifiably dilatory in making her request and that a continuance
would have disrupted the orderly administration of justice. Given the factors weighing in favor of the
trial court’s decision, and the lack of justification for the timing of her
request, Boothe has not carried her burden of demonstrating that the trial
court’s ruling was unreasoning and arbitrary so as to violate her
constitutional rights.

The Denial of a Continuance
To Allow Further Investigation Was Not An Abuse of Discretion


Although her briefs focus on the right to choice of counsel, Boothe’s
request for a continuance was based primarily upon the need to investigate
grounds for a new trial motion. It was
appropriate for the trial court to determine whether a continuance would have
been useful for that purpose. (>People v. Beeler (1995) 9 Cal.4th 953,
1003.) “[T]o demonstrate the usefulness
of a continuance a party must show both the materiality of the evidence
necessitating the continuance and that such evidence could be obtained within a
reasonable time.” (Ibid.)

It was also proper for the court to evaluate the likelihood that a new
trial motion would be granted. When a
criminal defendant requests time for further investigation, the trial court
must consider “‘“not only the benefit which the moving party anticipates but
also the likelihood that such benefit will result . . . .”’” (People
v. Doolin
(2009) 45 Cal.4th 390, 450.)
A continuance may be granted to investigate exculpatory evidence, but
the speculative nature of what is to be gained justifies its denial. (People
v. Gatlin
(1989) 209 Cal.App.3d 31, 40-42.)

Boothe’s trial counsel told the court that he was “purposely being
vague” with regard to the evidence his client hoped to uncover. When pressed for details, counsel insinuated
that the investigation would focus on discovering when a particular witness,
Cathy Bedford, first learned that the victim, Ollie Donaldson, was suffering
from cancer. The goal, apparently, was
to impeach Ms. Bedford’s testimony that emotional distress experienced by the
victim as a result of Boothe’s misconduct (rather than the effects of stomach
cancer) caused the victim’s physical and mental health to deteriorate.

Boothe had also hoped to support a new trial motion with evidence that
photographs of the victim’s apartment, which were shown to the jury, had been
taken while the victim was in the process of moving out. The perceived significance of this fact was
never fully explained. The defense
argued that the photographs were misleading because they did not reflect the
victim’s ownership of household items such as lotions, a microwave, and a
toaster oven.

We find no error in the denial of Boothe’s request for a continuance to
investigate and prepare a motion for new trial on these grounds. Evidence supporting a motion for new trial
must not only be material, but “such as to render a different result probable
on a retrial of the cause.” (>People v. Delgado (1993) 5 Cal.4th 312,
328.) Boothe fails to explain how additional
information about the photographs of her grandmother’s apartment could have
possibly satisfied these requirements.

The anticipated impeachment of Cathy Bedford was equally doubtful in
terms of materiality and impact. Ms.
Bedford was not an eyewitness to Boothe’s crimes, nor did her testimony
regarding the victim’s failing health tend to prove or disprove any element of
the offenses for which Boothe was charged.
It has long been held that “newly discovered evidence which would merely
impeach or discredit a witness does not compel the granting of a new trial, and
a new trial will not ordinarily be granted for newly discovered evidence of
that character.” (People v. Moten (1962) 207 Cal.App.2d 692, 698, citation omitted;
see also, People v. Green (1982) 130
Cal.App.3d 1, 11 [“As a general rule, ‘evidence which merely impeaches a
witness is not significant enough to make a different result probable . . .
.’.”].)

The trial court was within its discretion to conclude that the pursuit
of such evidence would not have been useful.
It also gave due consideration to the length of the trial, the number of
witnesses who testified, the recent death of the victim, and how each of those
factors weighed against the likelihood that a motion for new trial would be granted. Under the controlling standard of review, the
discretion to deny a continuance “is abused only when the court exceeds the
bounds of reason, all circumstances being considered.” (Beames,
supra, 40 Cal.4th at p. 920.) Boothe has not shown that such an abuse
occurred in this case.




>DISPOSITION

The judgment is affirmed.



_____________________

Gomes, J.

WE CONCUR:





_____________________

Levy, Acting P.J.





_____________________

Cornell, J.





id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1] Undesignated
statutory references are to the Penal Code.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2] All subsequent references to Boothe are to
appellant.

id=ftn3>

href="#_ftnref3" name="_ftn3" title="">[3] The prosecution dismissed the second degree
commercial burglary charges under Count 3 and Count 12 during trial.

id=ftn4>

href="#_ftnref4" name="_ftn4" title="">[4] People
v. Marsden
(1970) 2 Cal.3d 118.








Description A jury found Amber Boothe guilty of committing various financial crimes against her grandmother. Boothe now challenges the trial court’s denial of a motion to continue her sentencing hearing. She contends the court violated her constitutional rights by refusing to allow her additional time to search for a new attorney in hopes of preparing and filing a motion for new trial. We affirm.
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