Filed 2/27/18 P. v. Labriola CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER PATRICK LABRIOLA,

Defendant and Appellant.


E066868

(Super.Ct.No. RIF1407937)

OPINION


APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed in part, remanded with directions in part.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
On the first day of jury trial, defendant and appellant Christopher Patrick Labriola moved to discharge his court-appointed attorney and substitute retained counsel. After a hearing where the trial court questioned new counsel’s availability, the court denied defendant’s motion.
Following a jury trial, defendant was convicted of attempted first degree burglary (Pen. Code, §§ 664/459). In a bifurcated proceeding, defendant admitted he had suffered two prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of seven years in state prison with credit for time served.
On appeal, defendant argues (1) the trial court abused its discretion and violated his constitutional right to counsel when it denied his requests for a brief continuance to substitute retained counsel, and (2) the trial court erred when it limited his presentence custody credits pursuant to section 2933.1 because there was insufficient evidence his attempted first degree burglary conviction was a violent felony under section 667.5, subdivision (c). The People concede the trial court erred in limiting defendant’s presentence custody credits to 15 percent. We agree with the parties the trial court erred in applying a 15 percent limitation to defendant’s custody credits pursuant to section 2933.1, and will remand the case to the trial court to recalculate defendant’s presentence custody credits. In all other respects, we affirm the judgment.
II
FACTUAL BACKGROUND
Shortly before midnight on June 8, 2014, defendant and Amanda Frantz attempted to break into a residence located on Barret Road in the city of Riverside. A neighbor saw a male with a shovel attempting to break the lock on the front door of the home, and a female get on the male’s shoulders in an attempt to disable a light next to the front door. The neighbor called the police and reported the suspicious activity.
Police responded to the call from the neighbor. When the first responding officer approached the house, he saw a woman, later identified as Frantz, standing in the driveway, and a man, later identified as defendant, standing by the front door. After defendant and Frantz saw the officer, they ran to a blue SUV and fled the scene. The officer yelled at defendant and Frantz to stop while identifying himself as a police officer.
Other officers arrived at the scene and followed the vehicle. The vehicle had no license plate, traveled at a high rate of speed with its headlights off, and ran a stop sign. After the vehicle was stopped, the first responding officer identified defendant, Frantz and the vehicle. Other officers identified defendant as the man driving the vehicle. Both suspects identified themselves to the officers as Christopher Labriola and Amanda Frantz.
At the time of the incident, the owners of the home were remodeling the house but were not living there. They had planned to return and live in the home. Additionally, they had kept their property inside and went to the house daily to pick up mail and speak with the contractor. The first responding officer did not find anyone at the home when he arrived. The owners had not given anyone permission to enter their property on June 8, 2014. Pry marks were found on the front door of the home.
III
DISCUSSION
A. Denial of Continuance and Appointed Counsel
Defendant contends the trial court erred in denying his motion for a continuance to substitute in private retained counsel, thereby depriving him of his Sixth Amendment right to counsel. We disagree.
1. Additional Relevant Background
The complaint in this case was filed on June 11, 2014. Defendant’s appointed trial counsel began representing defendant on July 8, 2014, the date of defendant’s arraignment. Defendant received a total of six continuances at his request and two stipulated continuances. On March 18, 2016, the parties announced they were ready for trial.
On March 21, 2016, the first day of trial, the trial court summoned 80 prospective jurors for voir dire and heard motions in limine. During a recess, defendant’s appointed counsel informed the court that defendant desired a continuance because defendant wanted another attorney to represent him. Appointed counsel also noted that defendant had already retained new counsel but that retained counsel could not be available on that first day of trial. In response to questioning by the trial court, defendant asserted that he had retained Kenneth Elliott who was unavailable to appear that day.
Out of an abundance of caution, the trial court thereafter excluded the prosecutor and held a Marsden-like hearing out of the presence of the prosecutor. During the hearing, defendant stated that he did not believe his current attorney had his best interests in mind and that there had been a lack of communication. Defendant claimed he was not trying to delay the trial. At the court’s request, defendant called Attorney Elliott and then advised the court that Attorney Elliott was available to appear the following week on Tuesday, March 29, 2016. In response to questioning by the court, defendant’s appointed attorney denied there had been a lack of communication and explained the extensive work he had done on defendant’s case. Appointed counsel also stated he was prepared to proceed with the trial. The court thereafter denied defendant’s motion to continue and explained the following:
“Certainly it’s your right to choose a lawyer, but not to the extent that I’m going to send away the 80 jurors here. Let me indicate why. I found [appointed counsel] to be extremely competent; in fact one of the more competent lawyers that appears in this court house, certainly in front of me, with the 160 or 170 jury trials I’ve had. I think he’s [e]minently qualified.
“Secondly, he just described something to me quite contrary to what you just indicated. You indicated that he had prepared nothing for this case. He’s indicated otherwise, and he convinced me that he has prepared for this case.
“And next, I would indicate he’s prepared for this case because he’s discussed it with me at length the theories to the defense in this case. And I must indicate to you that he succeeded in a number of different ways in regard to restricting the evidence that would come in against you, by his arguments in chambers, and also here on the record, specifically to the various motions in limine.
“He was prepared by way of briefs, he was prepared by way of his witness list. He’s prepared in my view by virtue of my accepting his remarks as being truthful.
“What has happened in the Court’s view is that you are now considerate of the fact that the two-year offer has gone away, and now you face the inevitable, which is to face this jury in regard to the charges that are pending.
“So if you had told me that the lawyer was available today, and he should have been here today—if you’re going to hire somebody, he should have been here today ready to go, as opposed to next week, then I might well have considered trying to work something out.”
After further discussion about appointed counsel’s attempts to contact a potential defense witness, the court again denied the motion stating, “And at this particular time, in light of the totality of the circumstances, I’m going to deny your motion.”
When the prosecutor returned, the trial court explained, “Motion was denied to sub out [appointed counsel] with another lawyer; the Court finding the lawyer’s not here, he’s unavailable. We’re proceeding.”
On March 30, 2016, following a jury trial, defendant was convicted of attempted first degree burglary (§§ 664/459).
On August 12, 2016, defendant, represented by Attorney Elliott, filed a new trial motion, arguing defendant was denied his counsel of choice. On September 13, 2016, the People filed an opposition to defendant’s motion for new trial.
A hearing on defendant’s motion was held on September 16, 2016. Following argument, the trial court denied the motion. The court explained the following with respect to the timing of the request: “. . . All of the motions in limine had been discussed, considered and ruled upon by the Court prior to the point in time I’m talking about. So the stage is set. What we’re talking about is this: [¶] 80 jurors outside. 15 times [defendant] appeared in the master calendar or other courts; at no time over a period of two years did he ask to replace [appointed counsel]. [¶] It was only upon starting the trial, which, in this Court’s opinion was well under way, in the context of having jurors outside, motions in limine being brought to this bench officer, decided by this bench officer, and it was at that point in time that [defendant] indicated that he wished to replace [appointed counsel] with Mr. Elliott. [¶] I further inquired as to the availability of Mr. Elliott. And I did so with the purpose in mind to find out when would Mr. Elliott be available. . . . [¶] . . . [¶] . . . There’s an indication . . . that you, Mr. Elliott, would be available eight days out . . . .”
The court further noted: “And even if hypothetically [Mr. Elliott] were available eight days later, there was no assurance [Mr. Elliott] were ready at that point in time eight days later. [¶] It could have been weeks later, particularly in light of the amount of work that [appointed counsel] had performed in regard to trial preparation. I think minimally, even the best of attorneys would have to have a number of days in order to consume the discovery and understand the various trial decisions, or make a plan in regard to the various trial decisions that needed to be made. [¶] So I never contemplated that simply because [Mr. Elliott] were going to be available eight days later, that [Mr. Elliott] were going to be ready for trial eight days later.”
The trial court also explained the “ ‘totality of the circumstances’ ” it considered when it denied the request: “Jurors outside, motions in limine heard, answered ready for trial both in the master calendar as well as with the Court. And it was at the precise moment after having sworn jurors that it was made known to me that [defendant] wanted [a new attorney], and wanted [appointed counsel] off of the case. [¶] Those were the totality of the circumstances, plus all the other circumstances that I have described.”
Defendant contends the trial court erred by denying his request for a continuance to substitute retained counsel, thereby violating his Sixth Amendment right to counsel of choice. He argues that a continuance enabling him to substitute retained counsel would not have unreasonably disrupted the process of justice. For the reasons explained below, we reject defendant’s contentions.
2. Relevant Law
The constitutional right to the effective assistance of counsel encompasses a defendant’s right to retain counsel of his or her own choosing. (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts); United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 (Gonzalez-Lopez) [Under the Sixth Amendment, a criminal defendant who can afford to retain counsel has a right to obtain counsel of his or her choice.].) A defendant also has a due process right to appear and defend with retained counsel of his or her choice. (People v. Leonard (2000) 78 Cal.App.4th 776, 784.) The right to counsel of one’s own choosing “ ‘can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ [Citations.]” (Courts, at p. 790, italics omitted.)
Both the California Supreme Court and the United States Supreme Court “have emphasized that trial courts have the responsibility to protect a financially able individual’s right to appear and defend with counsel of his [or her] own choosing. ‘A necessary corollary [of the right] is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right . . . would be of little worth. [Citations.]’ [Citations.]” (Courts, supra, 37 Cal.3d at p. 790.) Failure to respect this right constitutes a denial of due process. (Ibid.) Thus, courts are required to “ ‘make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his or her own choosing can be represented by that attorney’ ” (ibid.), and should exercise “a ‘resourceful diligence directed toward the protection of [the right to counsel] to the fullest extent consistent with effective judicial administration.’ [Citation.]” (People v. Ortiz (1990) 51 Cal.3d 975, 982-983 (Ortiz).)
This right is not absolute, however. (People v. Gzikowski (1982) 32 Cal.3d 580, 586-587; People v. Blake (1980) 105 Cal.App.3d 619, 624 (Blake).) A criminal defendant’s right to counsel of choice “ ‘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.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 790; see Blake, at p. 624; Gonzalez-Lopez, supra, 548 U.S. at p. 152 [A trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar.].) “[T]he ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the [S]ixth [A]mendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.” ’ ” (Ortiz, supra, 51 Cal.3d at pp. 983-984.) Accordingly, a continuance “may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ [Citation.]” (Courts, at pp. 790-791; Blake, at p. 624; People v. Molina (1977) 74 Cal.App.3d 544, 548 [“[T]he right [to be represented by private counsel] must be asserted in a timely fashion” and “the trial court may, in its discretion and without further inquiry, deny a motion for a continuance to secure new counsel if the motion is made during trial. [Citation.]”].) For example, where a request for a continuance is made on the eve of trial, day of trial or second day of trial, the lateness of the continuance request justifies a denial, absent compelling circumstances to the contrary. (Courts, at p. 792, fn. 4, and cases cited therein.)
The grant or denial of a motion for a continuance to retain private counsel lies within the sound discretion of the trial court. (Courts, supra, 37 Cal.3d at p. 790; Blake, supra, 105 Cal.App.3d at p. 624.) The defendant bears the burden of showing that the trial court abused its discretion. (Blake, at p. 624.) When determining whether the denial of a continuance was so arbitrary as to violate due process, we examine the circumstances and the reasons presented to the trial court at the time the request was denied. (Courts, at p. 791.) “[T]here is no mechanical test for deciding whether a denial of a continuance is so arbitrary as to violate due process but rather each case must be decided on its own facts. [Citations.]” (Blake, at p. 624.)
3. Analysis
After a thorough review of the record, we find defendant has failed to establish the trial court abused its discretion in denying defendant’s motion for a continuance to substitute new counsel. (Courts, supra, 37 Cal.3d at p. 790, citing Ungar v. Sarafite (1964) 376 U.S. 575, 589 [granting of a continuance is within discretion of the trial court].) Defendant’s request was made the first day of trial and was therefore untimely. The complaint in this case was filed on June 11, 2014. Defendant’s appointed counsel began representing defendant on July 8, 2014, the date of defendant’s arraignment on the first information. The parties announced they were ready for trial on March 18, 2016. Defendant did not make his request for a continuance to substitute retained counsel until March 21, 2016, the first day of trial. Defendant had received six continuances at his request and two stipulated continuances. During this time, defendant made no mention of any request to obtain private counsel. Instead, defendant waited almost two years since defendant was first charged and over a year and a half since his attorney had been appointed to represent him. During the majority of this time, defendant was out of custody on bail and yet he offered no explanation as to why he waited until the day of trial to substitute retained counsel. Defendant presented no compelling circumstances mitigating in favor of granting the motion. While, as defendant points out, there is nothing in the record to suggest defendant was purposely delaying the trial or the prosecution’s case would be prejudiced or the prosecution would have opposed a continuance, defendant’s request was nonetheless untimely. (See People v. Lau (1986) 177 Cal.App.3d 473, 478-479 [trial court did not abuse its discretion by denying motion for substitution of the defendant’s retained counsel, where, inter alia, defendant’s “request was made literally the moment jury selection was to begin”]; People v. Turner (1992) 7 Cal.App.4th 913, 918-919 [trial court did not err by denying untimely motion to discharge counsel, made on date of trial, where disruption and delay would have been unreasonable]; Courts, supra, 37 Cal.3d at p. 792, fn. 4 [citing cases where the lateness of continuance requests made on “the eve-of-trial, day-of-trial, and second-day-of-trial” was a significant factor justifying denial of motion].)
Additionally, on the day defendant requested the continuance, 80 jurors had already been called, both the prosecutor and appointed counsel were prepared to proceed with the trial, and retained counsel was not present in court and was unavailable until eight days later. Furthermore, as explained by the trial court, retained counsel would likely have required additional time to prepare for defendant’s case. In fact, defendant’s retained counsel at the motion for new trial hearing agreed with the trial court when the court pointed out the significant disruption of the process. The court stated: “You don’t think it’s a significant interruption of the process to go through the motions in limine, decide the motions in limine, and spend a couple days in this courtroom after having answered ready in the master calendar, and making 15 different appearances in the other courts, summoning 80 jurors, private citizens to be out in the hallway, and being sworn, and then ask for a continuance and a substitution?” Moreover, defendant did not express any dissatisfaction with his appointed counsel and his sudden request to substitute retained counsel appeared arbitrary. Contrary to defendant’s argument, the record indicates the court balanced defendant’s right to counsel of his choice with the state’s interest in efficient judicial administration. (See People v. Keshishian (2008) 162 Cal.App.4th 425, 428 [fair opportunity to secure counsel of choice is necessarily limited by the countervailing state interest in proceeding with prosecutions on an orderly and expeditious basis, “ ‘ “taking into account the practical difficulties of ‘assembling the witnesses, lawyers, and jurors at the same place at the same time’ ” ’ ”].)
People v. Lara (2001) 86 Cal.App.4th 139, cited by defendant, is distinguishable. There, on the first day of trial, the defendant expressed dissatisfaction with his privately retained counsel, including a complaint that counsel was unprepared. The trial court treated the issue as a Marsden motion, which it denied. The appellate court found the trial court had improperly treated the defendant’s request to discharge privately retained counsel as a Marsden motion. (Id. at p. 155.) It held that, while a defendant moving for the substitution of appointed counsel must show good cause (id. at p. 151), a defendant may discharge retained counsel at any time, with or without cause, as long as he or she has not been unjustifiably dilatory or arbitrarily desires to substitute counsel at the time of trial. (Id. at pp. 152-153.) The defendant’s day-of-trial implied request to discharge retained counsel was timely, because (1) there was no evidence to suggest the defendant’s request was made in an effort to delay the proceedings, and (2) the retained attorney had not consulted with the defendant for months and thus the defendant was “unaware of the nature of [defense counsel’s] preparation until the moment the trial was finally set to begin.” (Id. at pp. 162-163.) Additionally, “[t]he trial court considered the supposed Marsden motion on its merits and did not make any findings as to the motion’s being untimely. [The appellate court] thus lack[ed] any factual findings that [the defendant’s] motion was necessarily untimely or that it would have disrupted the orderly process of justice.” (Id. at p. 163.)
Here, in contrast, defendant’s request was not premised upon dissatisfaction with counsel. Moreover, unlike in Lara, the trial court explicitly premised its ruling on the request’s untimeliness. As previously noted, the court explained the totality of the circumstances in denying the motion as follows: “Jurors outside, motions in limine heard, answered ready for trial both in the master calendar as well as with the Court. And it was at the precise moment after having sworn jurors that it was made known to [the court] that [defendant] wanted [retained counsel] as his attorney, and wanted [appointed counsel] off of the case. [¶] Those were the totality of the circumstances, plus all the other circumstances that [the court had] described.” Thus, Lara is of no assistance to defendant.
In light of the totality of the circumstances, including the disruption that would have been caused by a continuance when voir dire was imminent and all parties were prepared to try the case, defendant’s request for a continuance to substitute retained counsel was unreasonable. Accordingly, the trial court did not err in denying defendant’s motion for a continuance to substitute retained counsel.
B. Presentence Custody Credits
At the sentencing hearing on September 16, 2016, the trial court awarded defendant 118 days of presentence custody credits, consisting of 103 actual days and 15 days of conduct credits under section 2933.1. Defendant contends that because there was insufficient evidence to support a finding his current offense of attempted first degree burglary was a violent offense within the meaning of section 667.5, subdivision (c), the trial court erred in calculating his custody credits under section 2933.1, rather than section 4019. The People concede, and agree with defendant the matter should be remanded with directions to recalculate defendant’s custody credits pursuant to section 4019. We agree with the parties.
Sections 2933.1 and 667.5, subdivision (c), limit a defendant’s presentence conduct credits to a maximum of 15 percent when the defendant’s current conviction is violent within the meaning of section 667.5. (People v. Garcia (2004) 121 Cal.App.4th 271, 276; People v. Henson (1997) 57 Cal.App.4th 1380, 1389-1390.) Section 667.5, subdivision (c)(21), states: “Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” Section 460, subdivision (a), provides: “(a) Every burglary of an inhabited dwelling house . . . is burglary of the first degree.”
However, section 667.5, subdivision (c), does not list attempted first degree burglary as a violent felony. Moreover, case law has established that the definition of serious felonies as set forth in section 667.5, subdivision (c)(21), does not apply to attempts to commit such felonies. (People v. Reed (2005) 129 Cal.App.4th 1281, 1284-1285 & fn. 1; People v. Ibarra (1982) 134 Cal.App.3d 413, 425.) The parties agree that defendant was not convicted of a violent felony within the meaning of section 2933.1. First, defendant was convicted of attempted first degree burglary, a non-qualifying offense. Second, the prosecution neither alleged nor proved that anyone was present in the residence at the time of the attempted burglary. To the contrary, the homeowner testified that at the time of the attempted burglary, she and her husband were remodeling the house and were not staying there. The responding officer testified that no one was at the home when he arrived. Although the homeowner stated that she returned to the home daily to pick up the mail and to speak with the contractor, there was no evidence that either she or anyone else were at the house during the attempted burglary. Accordingly, the trial court erred in applying a 15 percent limitation to defendant’s custody credits pursuant to section 2933.1.
Where a person, like defendant, is only convicted of an attempt to commit a serious felony the limitations of section 2933.1 do not apply. Thus, the person is entitled to the full conduct credits authorized by section 4019. (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337.) “Under Penal Code section 4019, a defendant receives two days of conduct credit for each four-day block of time served. ‘The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits. [Citations.]’ [Citation.]” (People v. Kimbell (2008) 168 Cal.App.4th 904, 908-909.) Since the court improperly limited defendant’s conduct credits, we will remand the case to the trial court to recalculate defendant’s presentence custody credits.
IV
DISPOSITION
The trial court is directed to recalculate defendant’s presentence custody credits in accordance with the views expressed in this opinion. After the credits are recalculated, the court shall modify the judgment accordingly. The court is also directed to amend the abstract of judgment and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



RAMIREZ
P. J.



FIELDS
J.