P. v. Hayes

Filed 10/27/08 P. v. Hayes CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Judith Champagne, Judge. Affirmed.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson, Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________

Appellant Kevin Hayes was convicted by a jury of two counts of forcible rape (Pen. Code, 261, subd. (a)(2); counts 1 & 6),^[1]one count of forcible oral copulation ( 288a, subd. (c)(2); count 2), two counts of sexual penetration by a foreign object ( 289, subd. (a)(1); counts 3 & 4), and one count of kidnapping to commit rape ( 209, subd. (b)(1); count 5). The jury also found true a kidnapping enhancement allegation as to five of the counts ( 667.61, subds. (a), (b), & (d)), and the court thereafter found at a bifurcated trial that the prior conviction allegations were true ( 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court sentenced appellant to a total prison term of 55 years to life.

Appellants sole contention is that the court at sentencing denied him his constitutional rights to counsel of his choice and to due process and abused its discretion when it refused to allow a fourth continuance so appellant could finalize arrangements to retain new counsel to file a motion for a new trial. The contention is without merit.

FACTUAL AND PROCEDURAL SUMMARY

Overview of the trial evidence.

On the morning of October 23, 2004, E. J. was on her way to work and waiting at a bus stop at the intersection of Pico and Redondo Boulevards in Los Angeles when appellant drove by and asked her if she wanted a ride. When E. J. declined the offer of a ride, appellant reached under his seat and threatened to shoot her. Fearing appellant had a firearm, she got into his car. As he drove away, she cried, pleaded to be let go, and banged on the car window. Appellant drove to an alley and threatened to get her family if she did not comply with his orders. Appellant then repeatedly threatened to get violent and raped her, forced her to orally copulate him, and placed his fingers inside her vagina.

When the ordeal was over, appellant tried to be nice and dropped E. J. off at the store where she worked. The store manager came to her aid; she appeared to be in terror, pain, horror, [and] anguish. E. J. was crying, stated Ive been raped, and repeated several times that [h]e was going to kill me. She gave the store manager a piece of paper with the license number of appellants vehicle on it. A store employee called 911, and E. J. was taken to a hospital where she was examined.

Eventually, appellant was apprehended. DNA tests conducted on a saliva sample from appellant and a vaginal swab from E. J. revealed that appellants DNA profile was found in sperm on the vaginal swab.

In his defense at trial, appellant presented testimony from a doctor who reviewed the medical reports from the sexual assault examination and opined that it was impossible to determine whether the sexual activity was consensual or forced. Another witness, a friend of appellants, recalled a young woman at the bus stop at that corner where E. J. got into appellants car. He described the woman as leaning into the car and speaking to the driver, initially sitting back down at the bus stop, and then getting into the car.

Relevant posttrial proceedings.

After appellant was convicted by a jury on May 16, 2007, of the charged sex offenses and kidnapping to commit rape, he waived his right to a jury trial on the prior conviction allegations. The court set June 27, 2007, as the date for a trial on the prior conviction allegations and for sentencing.

On June 27, 2007, the court addressed appellant and acknowledged having received a letter from him in which he requested to be allowed to represent himself. He wanted to present a motion for a new trial on the grounds of newly discovered evidence and alleged ineffective assistance of his trial counsel, Edward Murphy, who was a bar panel attorney. The court discussed the matter with appellant and offered to give a reasonable amount of time in which to allow trial counsel to bring a motion for a new trial. Appellant acknowledged that is what [he] would like to do, and appellants trial counsel stated that he would interview appellant that day and get the information needed for a new trial motion. Trial counsel asked the court for a few weeks to evaluate any new evidence from appellant. The court gave appellant approximately a month, continuing the matter to July 27, 2007.

On July 27, 2007, the trial court granted appellants motion to continue the matter to August 1, 2007. On that date, the trial court granted appellants motion to continue the matter again to August 7, 2007, based on appellants assertion that he was attempting to retain private counsel.

On August 7, 2007, Attorney Thomas Kielty addressed the court and stated that he had been contacted by appellants family, who was in the process of getting money to retain him as counsel, and that he was willing to be substituted in as counsel. The money for his retainer fee was to come from a loan to a Ms. Ava Gamel on an undeveloped piece of property valued at $550,000, and a loan broker had provided a prequalification letter.

The following discussion then ensued:

The Court: I think before we go any further . . . I need to know if you are his counsel today.

Mr. Kielty: Im not his counsel today.

The Court: Then I cannot further delay the proceedings. If you dont feel confident enough about these [financial] arrangements to accept the responsibility of representing him today, then the court does not either.

Mr. Kielty: Well, Your Honor, I would prefer to have my money. That is my standard practice. And today is Tuesday. The woman who will be paying me, the family member, is present in court. She provided a letter which appears to me to be a legitimate prequalification letter.

The Court: I understand your position, but Mr. Hayes was convicted three months ago. I have been continuing and continuing. On the last occasion I advised Mr. Hayes without any ambiguity that if he was represented by private counsel today, I would give his counsel a reasonable amount of time to prepare for the sentencing or any motions. That if he did not have counsel to substitute in today, that we would go forward. Those were the instructions and directions and admonitions that the court gave. So if you cannot represent to me today that you are his counsel, that you are substituting in and that you are ready to go forward starting today, then Im sorry. I cannot further delay these proceedings, and you may step back.

. . . .

Mr. Kielty: Your Honor, I have something new to say. . . . Its not the way I prefer to do business given the limitations Your Honor has articulated. On the good faith of Ms. Gamel that she will pay my retainer, when the money comes in, I will substitute in.

The Court: The next question isI am only going to allow the substitution, as I told Mr. Hayes, if you are going to represent to this court that you are going to be ready within a reasonable period of time. So you tell me what that time is so that I can determine if that is reasonable.

Mr. Kielty: I will be ready within a reasonable period of time. I represent that.

The Court: No. No. I need to know specifically when you are going to be ready.

Mr. Kielty: I need to review the transcripts and I dont know how long that will take.

The Court: You indicated you have some familiarity with the case. There will be no transcripts, of course, because transcripts will not be prepared by my court reporterthis is not my regular court reporterwho reported the case until there has been a sentencing, a judgment entered, so you are not going to have transcripts. Its a disadvantage that any attorney has when he steps in postconviction and before there has been a sentencing. So maybe you want to think about this before you take on this responsibility. I dont want you to be misled and think that you are going to have two months to wait for transcripts and two months to digest them and two months to think of what motions you might like to explore.

Mr. Kielty: I understand everything that Your Honor said. We are going to have to agree to disagree about the issue of transcripts. I think I do have a right to transcripts. I will file something with respect to that and we will go forward. Without having to resolve that issue, I really cant give you an estimation of how long it would take me to prepare. I am without the transcripts. It will certainly take less time to prepare because I will have less ability to effectively represent my client.

The Court: Well Im not satisfied with that representation, so the request to substitute in is denied. You may step back, sir. Mr. Murphy is still going to be Mr. Hayes counsel in this matter.

Following a recess, appellants trial counsel informed the court that appellant asked me to advise the court that he wishes to go pro. per. Appellant, however, indicated he was not prepared to go forward today. The court remarked, We are going forward today as I told the gentleman who was here earlier who was first saying he wasnt retained, then indicating he was retained, and then indicating he would need transcripts and he couldnt give me any date as to when he might be ready. I am going to tell you the same thing. You were convicted of these crimes. Its almost three months that we have been delaying the proceedings.

When appellant claimed there had only been one continuance, the court observed that there were quite a few dates since the matter was before the jury, so we are going forward today. And if you are not ready to proceed, Im going to view your request to go pro. per. as another attempt to delay these proceedings and to obstruct justice, and Im not inclined to let you do that. Appellant asserted he had grounds for a retrial, but that his attorney did not want to proceed that way. The court explained, Tactical decisions such as what motions are meritorious are made by counsel, so your motion to proceed as your own attorney, since you are not ready to do that today, is denied.

The court then found true a five-year prior serious felony enhancement and imposed sentence. The court sentenced appellant to state prison for a total of 55 years, consisting of a base term of 25 years to life in count 1 (forcible rape), pursuant to section 667.61, subdivision (a), doubled pursuant to the Three Strikes Law, plus a consecutive five-year prior serious felony enhancement. As to counts 2 through 4 and count 6, the court imposed identical concurrent midterm sentences of six years, doubled pursuant to the Three Strikes Law. As to count 5, the court imposed and stayed a life term with a minimum period of incarceration of 14 years prior to parole eligibility.

DISCUSSION

Appellant contends the court at sentencing denied him his constitutional rights to counsel of his choice and to due process and abused its discretion when it refused to allow a fourth continuance so he could finalize arrangements to retain new counsel to file a motion for a new trial. The contention is unavailing.

It is well settled that the constitutional rights to due process and to counsel afford a criminal defendant the right to appear and defend with retained counsel of ones own choice. (Wheat v. United States (1988) 486 U.S. 153, 159; Chandler v. Fretag (1954) 348 U.S. 3, 9-10; People v.Courts (1985) 37 Cal.3d 784, 789-790.) Therefore, the trial court should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney. [Citation.] To this end, the state should keep to a necessary minimum its interference with the individuals desire to defend himself in whatever manner he deems best, using any legitimate means within his resources . . . . (People v.Courts, supra, at p. 790.)

Nonetheless, the right to counsel of ones choosing is not absolute, and may be denied 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. (Ibid.) The right to counsel in such a circumstance must be carefully weighed against the 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. (Ibid.)

A trial court has broad discretion whether to grant a continuance to permit a defendant to be represented by retained counsel, but should afford a defendant a fair opportunity to secure counsel of choice. (People v.Ortiz (1990) 51 Cal.3d 975, 983.) There are no mechanical tests for deciding when a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Ungar v. Sarafite (1964) 376 U.S. 575, 589.) The trial court may, for example, deny a defendants request for a continuance if the accused is unjustifiably dilatory in obtaining counsel. (People v.Courts, supra, 37 Cal.3d at pp. 790-791.) A trial court can abrogate the right to counsel of choice to ensure the proper and orderly administration of justice (People v.Lara (2001) 86 Cal.App.4th 139, 153), or the preservation of the integrity of the proceeding. (U.S. v. Stites (9th Cir. 1995) 56 F.3d 1020, 1026.)

The trial courts denial of a defendants motion for a continuance is not grounds for reversal unless it is an abuse of discretion and results in prejudice to the defendant. (People v.Beeler (1995) 9 Cal.4th 953, 1003; People v.Fudge (1994) 7 Cal.4th 1075, 1105.) The trial court need not grant a defendants request for a continuance to obtain retained counsel where participation by retained counsel is still speculative or is based upon a representation that the defendant will be able to hire counsel of his choosing eventually. (People v.Courts, supra, 37 Cal.3d at p. 791, fn. 3.)

To the extent there is not merely an abuse of discretion but a claimed constitutional error, the unreasonable refusal to grant a continuance to accommodate retained counsel would be per se reversible error. (People v.Courts, supra, at p. 796; see Reynolds v. Cochran (1961) 365 U.S. 525, 531.) However, appellant has forfeited any such constitutional error by the failure of appellant or his trial counsel to raise any objection, constitutional or otherwise, in the trial court. (Compare People v.Partida (2005) 37 Cal.4th 428, 433-436; see United States v. Olano (1993) 507 U.S. 725, 731.) In any event, as discussed below, we find no constitutional error or abuse of discretion under the circumstances.

In the present case, the trial court was willing to grant a continuance to enable Attorney Kielty to substitute in as retained counsel if Kielty could prepare appellants new trial motion in a reasonable amount of time.^[2] However, Kielty was either unable or unwilling to give the trial court any estimate as to when appellant would be ready to proceed on a motion for a new trial. As Kielty stated, I need to review the transcripts, and I dont know how long that will take. (Italics added.) Then Kielty insisted he had a right to obtain transcripts, and asserted that without resolving the transcript issue he could not estimate how long it would take him to prepare a new trial motion. Also, during the three-month period after the jury returned its verdicts, the case had already been continued three times at appellants request. In view of all the circumstances, the trial courts denial of a fourth continuance was not an abuse of its broad discretion. Nor was it a denial of appellants constitutional right to counsel when weighed against the value of orderly and expeditious judicial administration. (People v.Courts, supra, at p. 790.)

Appellant erroneously suggests that the trial court denied his motion for a continuance solely because Kielty needed one more week to finalize financial arrangements. In fact, Kielty ultimately (and reluctantly) agreed to substitute in on the day of the proceeding at issue, irrespective of his financial arrangement with appellant. The trial court denied Kieltys request to substitute as counsel based solely on his inability to inform the court of a date upon which he would be ready to proceed with a new trial motion.

Appellant also errs in claiming that he had a right to obtain transcripts to prepare a motion for a new trial. There simply is no absolute right under federal or state law to obtain trial transcripts for the purpose of preparing a motion for a new trial. (People v.Bizieff (1991) 226 Cal.App.3d 1689, 1702.) Rather, a trial court may deny a request for trial transcripts where the defendant fails to show a particularized need to have them for his new trial motion. (Id. at pp. 1702-1703; People v.Lopez (1969) 1 Cal.App.3d 78, 83.) To be entitled to such transcripts a defendant must show that a trial courts denial of a request was so arbitrary that it violated due process or denied a defendant the effective representation of counsel during the proceedings on his new trial motion. (People v.Bizieff, supra, 1702-1703.)

Here, Kielty never made any showing of a particularized need for the transcripts. Kielty erroneously assumed he was entitled as a matter of right to trial transcripts to prepare a motion for a new trial. Appellant initially advised the trial court he wanted personally to prepare a new trial motion on the grounds of newly discovered evidence and ineffective assistance of counsel. However, appellant subsequently told the trial court that his motion would be predicated only on newly discovered evidence, and he agreed that his trial attorney could prepare the motion on his behalf.

Because the motion was to be predicated only on newly discovered evidence in a rather simple case, there was little need for Kielty to obtain a transcript of the trial prior to filing the motion. The nature of the evidence against appellant was straightforward, the trial was relatively brief, and appellant and Attorney Murphy presumably would be available to assist Kielty with a factual overview of the trial evidence. Thus, it is unlikely that the absence of a trial transcript would hinder Kieltys ability to file a new trial motion.^[3] Appellant has not established that he would have benefited from a continuance of his sentencing hearing. (See People v.Lara, supra, 86 Cal.App.4th at p. 154.)

Accordingly, the circumstances in the present case establish that the trial court afforded appellant a fair opportunity to secure retained counsel of choice prior to the sentencing hearing. (People v.Ortiz, supra, 51 Cal.3d at pp. 983.) Because appellants choice of retained counsel was unable to give the trial court any estimate of when he would have been able to proceed with a new trial motion, and because the matter had already been continued after trial three times at appellants request, the trial courts denial of the motion to continue the sentencing hearing was not an abuse of discretion or a violation of appellants constitutional rights. (Id. at pp. 983-984; People v.Courts, supra, 37 Cal.3d at pp. 789-791.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2] Appellant points to numerous pretrial continuances granted over his objections and to his battle to replace his assigned public defender, which ultimately resulted in the appointment of Attorney Murphy from the bar panel. However, regardless of who bore the blame for pretrial delays and continuances, appellant obtained three posttrial continuances and was responsible for delaying the sentencing.

^[3] We also note that appellant has not raised on appeal any claims related to trial counsels effectiveness, or any complaint about his failure to raise a new trial motion on appellants behalf. Thus, there is no showing on appeal that appellant actually had any viable issues to raise in a new trial motion.