Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC942929.
Mihara, J.
Defendant Ezell Banks, Jr. pleaded no contest to nine counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), three counts of felony false imprisonment (Pen. Code, §§ 236, 237), one count of reckless evading (Veh. Code, § 2800.2, subd. (a)), and one count of felony vandalism (Pen. Code, § 594). He also admitted allegations that he had taken property of a value exceeding $65,000 (Pen. Code, § 12022.6, subd. (a)(1)) in the commission of the robbery counts, had personally used a firearm (Pen. Code, §§ 12022.5, 12022.53, subds. (b), (e)(1)) in the commission of the robbery and false imprisonment counts, and had committed the robbery and false imprisonment counts for the benefit of a criminal street gang (Pen. Code, § 186.22, subds. (b)(1)(A), (b)(1)(C)). His pleas and admissions were entered pursuant to a “court offer” that stipulated he would receive an 18-year state prison term. The court imposed the stipulated term. On appeal, defendant’s sole contention is that the trial court abused its discretion in denying his request near the end of the sentencing hearing to discharge his retained attorney. We reject his contention and affirm the judgment.
I. Background
Defendant and two compatriots robbed a jewelry store. The robbery was captured on videotape, which showed defendant armed with a handgun and wearing a ski mask. The 10 to 12 customers and employees in the store were ordered to the ground and held by defendant at gunpoint while his compatriots smashed display cases and took 16 “high end” watches. A third compatriot manned the getaway car and drove the robbers away from the store. The police pursued the car, but they lost sight of it and later found it abandoned. The abandoned car was registered to the sister of the girlfriend of one of defendant’s compatriots. The police arrested this compatriot and recovered all of the watches. Defendant was subsequently arrested and charged with these offenses after he was identified in a photographic lineup.
On October 5, 2009, the date set for the preliminary examination, defendant pleaded no contest to all of the counts and admitted the allegations in exchange for a “court offer” of a prison term of “no more than and no less than18 years, ” to which the prosecution did not object. Defendant had been facing a prison term of over 100 years. At the time of his pleas and admissions, defendant was represented by retained attorney Charles Smith, who had represented defendant since June 3, 2009, when the public defender had been relieved. The sentencing hearing was originally set for November 20, 2009, but it was postponed to February 26, 2010.
At the commencement of the sentencing hearing, Smith noted that defendant “understands that this was a top/bottom offer, however, he’s still asking me to request the court for a lesser sentence in this case for the following reasons.” Smith pointed out defendant’s youth and minimal prior record. He stated that “[defendant] feels” that an 18-year prison term would be “unfair” because the evidence was “circumstantial, ” he had “entered a plea at first opportunity, ” and he was “not the leader” but “a follower” in the perpetration of the crimes. Smith also asserted that he had “known [defendant] for many, many years” and believed that defendant was a good person who had been led astray. Smith asked the court “to go under the stipulated top” and impose “the mandatory minimum, which is 12” years in prison. The prosecutor argued that defendant’s offenses actually merited a much harsher sentence than 18 years. Both counsel then submitted the matter.
After the matter was submitted, the trial court described its assessment of the case. During the court’s statement, defendant interrupted the court, and this colloquy occurred. “THE DEFENDANT: Your honor. Your honor, I didn’t tell him [Smith] to say anything that he’s said. [¶] THE COURT: Oh yeah. [¶] THE DEFENDANT: He didn’t came (verbatim) to me to tell me anything about anything. [¶] THE COURT: Okay. [¶] Mr. Banks, I’m not criticizing you for asking for less. Nor am I criticizing your attorney for doing it. [¶] THE DEFENDANT: Am I able to speak right now? [¶] THE COURT: Sure, I’ll hear from you. [¶] THE DEFENDANT: I want to now fire my lawyer and withdraw my plea. If it’s possible. [¶] THE COURT: At this point, sir, I’m not going to allow you to do that. I have not heard any reason for that to happen. Whether you’re -- if you want to appeal the case, you can appeal the case if you want. [¶] But as far as firing your attorney, first of all, I don’t think that’s a good idea. I think he’s done an excellent job in representing you. [¶] But as far as withdrawing your plea there’s nothing that I’ve heard here that would indicate that I would do that.” Defendant complained that Smith had not visited him in jail and had told him “we’re going to lose at trial.” The court told defendant: “If you want to appeal and raise those issues, you can do that. But right now is not the time to do that....” The court proceeded to impose the agreed 18-year state prison term. Both defendant and Smith timely filed notices of appeal and requested certificates of probable cause. The requests were denied.
II. Discussion
“The right to discharge a retained attorney is... not absolute. [Citation.] The trial court has discretion to ‘deny such a motion if discharge will result in “significant prejudice” to the defendant [citation], or if it is not timely, i.e., if it will result in “disruption of the orderly processes of justice” [citations].’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 311.) “[T]he court should ‘balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.’ [Citation.] In so doing, the court ‘must exercise its discretion reasonably: “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” ’ ” (People v. Keshishian (2008) 162 Cal.App.4th 425, 429.)
Defendant acknowledges that the standard of review is abuse of discretion. He contends that trial court abused its discretion “because the court misunderstood the applicable law” and erroneously believed that defendant was required to “show[] cause” for discharging his attorney. Defendant also argues that his request was “timely” and that the court could not have concluded that discharge of his attorney would disrupt the proceedings.
We disagree with defendant’s interpretation of the court’s comments. When defendant asked to “fire my lawyer and withdraw my plea, ” the court immediately responded: “At this point, sir, I’m not going to allow you to do that. I have not heard any reason for that to happen.” Although it was not initially clear whether the court’s reference to not having “heard any reason” related to discharging counsel or withdrawing the pleas and admissions or both, the court’s subsequent comments reflected that the “heard any reason” comment was directed solely at the request to withdraw the pleas and admissions and not at the request to discharge counsel. This is true because the court proceeded to address “firing your attorney” separately from “withdrawing your plea” and stated that, “as far as withdrawing your plea there’s nothing that I’ve heard here that would indicate that I would do that.” The court’s statement that “nothing... I’ve heard” justified “withdrawing your plea” linked its earlier “heard any reason” comment to withdrawal. When the court addressed “firing your attorney, ” it made no similar reference. The court’s comments about “firing your attorney” were prefaced (“first of all”) by the court’s advice that it would not be “a good idea” for defendant to discharge his attorney because his attorney had “done an excellent job” and ended with the court’s conclusion that “right now is not the time to do that....” These comments in no way implied that the court believed that defendant was required to “show[] cause” or provide a “reason” for discharging his attorney. Therefore, the record does not reflect that the court “misunderstood the applicable law.”
Defendant is left to argue that the trial court abused its discretion in concluding that defendant’s interest in discharging his counsel was outweighed by the disruption that would ensue from such a discharge. Defendant claims that his request was timely, but it was not. Defendant’s pleas and admissions had been entered more than four months earlier, and the sentencing hearing had already been postponed from three months earlier. Nothing had happened in the case in the interim that could explain defendant’s delay in seeking to discharge his attorney. By the time he interposed his request, the attorneys had submitted the matter, and the court had already explained its reasons for imposing the agreed sentence. A discharge of defendant’s attorney at this point in the proceedings necessarily would have been disruptive to the completion of already long-delayed sentencing proceedings. Furthermore, the court could reasonably infer from the timing of defendant’s belated request that the request was intended to disrupt the proceedings. Notably, defendant’s assertions that his attorney had not visited him in jail and had told him that he would lose at trial were not based on any recent events and did not appear to raise any genuine concerns about his attorney’s performance.
Defendant relies on People v. Munoz (2006) 138 Cal.App.4th 860 (Munoz). In Munoz, nine days before the scheduled sentencing hearing the defendant submitted a written request raising concerns about his retained counsel’s performance and asking the court to appoint a new attorney to represent him. (Munoz, at p. 864.) At the scheduled hearing, the trial court told the defendant that he needed to show incompetent representation or a conflict of interest in order to obtain new counsel. (Munoz, at pp. 864-865.) The defendant attempted to make such a showing, but the court rejected his reasons. Although the court postponed the sentencing hearing for five weeks, it refused to allow the defendant to discharge his retained attorney. (Munoz, at p. 865.) The Court of Appeal held that the trial court had erred in requiring the defendant to show incompetence to support discharge of his retained counsel. (Munoz, at p. 866.) It also held that the trial court had abused its discretion in denying the request because the defendant raised genuine concerns about his attorney, and there was no indication in the record that granting the request would have resulted in disruption, as the court delayed the sentencing hearing for five weeks in any event. (Munoz, at pp. 869-870.)
Munoz is readily distinguishable. First, the trial court in Munoz erred in explicitly requiring the defendant to make a showing that his attorney was incompetent or had a conflict before the court would consider the request, but here the trial court did not impose any such requirement. Second, the request in Munoz was submitted well in advance of the scheduled sentencing hearing, and the sentencing hearing did not actually occur until more than a month after the request. Here, defendant interposed his request at the end of the sentencing hearing after counsel had submitted the matter and the court had explained its reasons for imposing the agreed sentence. The request in Munoz was timely and had little potential under the circumstances to be disruptive. In contrast, defendant’s request was untimely and patently disruptive. Defendant’s reliance on Munoz is misplaced.
The trial court did not abuse its discretion in denying defendant’s request to discharge his retained attorney.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.