Filed
5/29/13  P. v.
Erazo CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

 


 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   VICTOR ALEJANDRO ERAZO,         Defendant and Appellant.

G047606            (Super. Ct. No. 10NF1209)            O P I N I O N

 

                        Appeal
from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Lance Jensen, Judge. 
Affirmed.

                        John
F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.

                        No
appearance for Plaintiff and Respondent.

*               
*                *

                        Defendant
Victor Alejandro Erazo filed a notice of
appeal.  His appointed counsel filed
a brief setting forth a statement of the case, but advised this court he found
no issues to support an appeal.  We
provided Erazo 30 days to file his own written argument, but he has not
responded.  After conducting an
independent review of the record under
People v. Wende (1979)
25 Cal.3d 436, we affirm.

Facts

                        In
People
v. Erazo (May 18, 2012, G045542 [nonpub. opn.]), we conditionally
reversed the judgment after the jury convicted Erazo of committing forcible and
nonforcible lewd acts on a child under age 14 (Pen. Code, § 288, subd. (b)(1);
§ 288, subd. (a)).  We
accepted the Attorney General’s concession, and agreed with Erazo, the trial
court applied the wrong legal standard in denying Erazo’s request to discharge retained
counsel.  We directed the trial court “to
conduct a hearing at which the court shall determine Erazo’s May 12, 2011, request to
discharge retained counsel in the light of the standard articulated in [People
v. Ortiz (1990) 51 Cal.3d 975 (Ortiz)] and related cases.  If the court determines
Erazo was entitled to discharge
counsel, the court shall set the case for retrial.  If the court determines
Erazo was not entitled to
discharge counsel, the court shall reinstate the judgment.”

                        The
trial court conducted the hearing on November 2, 2012.  The trial court explained events that existed
on the date of Erazo’s request:  “Both
counsel answered ready for this trial on May 11[, 2011] in Department C5.  Shortly, and by that I mean by an hour, hour
and a half thereafter, they appeared in my courtroom, W9, . . . to commence the
beginning of the trial.  [¶] The People
filed their trial brief, 402 motions, witness list and jury instructions.  [¶] The court conferred with counsel in
chambers regarding 402 issues and discussion of how this court conducts its
trials.  [¶] The court then went on the
record and dealt with the defendant’s first request for an interpreter.  The court also heard argument on 402 motions
on a variety of topics, including identification of the victim, victim’s
support person, admissibility of defendant’s affair with another woman at the
time of the offense, defense concerns on the People’s use of phone calls of the
defendant’s family members, C.A.S.T. interview redactions and the scheduling of
testimony regarding the admissibility of the defendant’s statements.”

                        The
next day, May 12, the court “met briefly with counsel in chambers regarding
scheduling and once again the defendant’s use of an interpreter.  [¶] . . . The court subsequently went on the
record and provided the defendant with an interpreter at 9:30 a.m.  After having a further discussion with the
defendant in court regarding the role of the interpreter, . . . [¶] . . . [t]he
defendant indicated [“]Yes, I actually – I would like to request to get a
public defender.[”]  The court then
conducted a hearing (relying erroneously as it turned out on People v.
Marsden (1970) 2 Cal.3d 118), and gave Erazo an opportunity to speak
and explain his reasons for discharging retained counsel in favor of the public
defender.

                        The
trial court, applying the Ortiz
standard to the record as it existed on May 12, 2011, concluded Erazo’s
“request [to discharge retained counsel] was not timely and would have resulted
in the . . . disruption of the orderly processes of justice.”  The court stated it had “balanced the
defendant’s interest in new counsel against the interest in proceeding with the
prosecution in an orderly and expeditious basis, taking into account among many
things, the amount of time that had been spent addressing pretrial 402 motions
and the practical difficulties of assembling witnesses whose appearances had
already been scheduled, lawyers and jurors at the same place at the same
time.  [¶] An indefinite continuance
would have been necessary for new counsel to get up to speed on the
matter.  Such a disruption would have
been unreasonable under the circumstances of the case.  Court finds that the defendant’s reasons for
seeking new counsel and the last-minute attempt to discharge counsel and
appoint the public defender did not constitute good cause.”  The prosecutor advised “both the victim and
the other civilian witness were flown out from out of state prior to us
starting those 402[’]s.  So we had
already paid for round-trip tickets. 
Victim flew out from New York City. 
Our other witness flew out from Texas.” 
The court noted “people were lined up and ready to go.”

Potential Issues

                        Erazo’s
appellate lawyer identifies two potential issues for our consideration:  “(1) Did the trial court, on remand, properly
apply the [Ortiz] standard for
discharge of retained counsel; [and] (2) Did the trial court abuse its
discretion when it denied [Erazo’s] request to discharge his retained counsel,
finding that the request was untimely and would have been disruptive of the
proceedings?”

                        As we noted in our
earlier opinion, the right to discharge retained counsel is not absolute and
the trial court may reject a motion to relieve retained counsel “if it is not
timely, i.e., if it will result in ‘disruption of the orderly processes of
justice’ [citations].”  (Ortiz, supra, 51
Cal.3d at p. 983.)  In >People v. Keshishian (2008) 162
Cal.App.4th 425, the appellate court held the trial court did not abuse its
discretion in denying a defendant’s request to discharge retained counsel made
on the day of trial where the defendant stated he had “‘lost confidence’” in
retained counsel.  “The court here
applied the correct standard in rejecting appellant’s last-minute attempt to
discharge counsel and delay the start of trial. 
Appellant asked for and was given an opportunity to address the court
concerning his desire to discharge counsel and his reasons for doing so. . .
.  This request was made on the day set
for trial after the case had been pending for two and a half years.  An indefinite continuance would have been
necessary, as appellant neither identified nor retained new counsel.  Witnesses whose appearances had already been
scheduled would have been further inconvenienced by an indefinite delay.”  (Id.
at p. 429.)

                        Here, the court
correctly applied Ortiz by balancing
Erazo’s reasons for new counsel, expressed at the earlier hearing during the
trial, against the disruption flowing from substitution.  (People v. Lara (2001) 86
Cal.App.4th 139, 153.)  As the trial
court noted, trial had commenced and witnesses, including those flown in from
out-of-state, “were lined up and ready to go.” 
Granting Erazo’s request to discharge counsel would have necessitated a
continuance of unknown duration to allow the public defender or other counsel
to get up to speed, thereby impairing efficient judicial administration.  The court did not abuse its discretion in denying
Erazo’s request to discharge retained counsel. 


                        We have reviewed the
record and discern no other potential or arguable

issues.


Disposition

                        The judgment is
affirmed.

 

 

                                                                                   

                                                                                    ARONSON,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

FYBEL, J.