Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. 152120, 152144
SIMONS, J.
Jeremiah Birchett (appellant) appeals from a judgment after a jury convicted him of two counts of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and one count of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Appellant admitted a prior prison term (Pen. Code, § 667.5, subd. (b)) and was sentenced to a total term of nine years four months in state prison. Appellant contends the court erred by (1) denying his motion for a continuance so he could secure representation by retained counsel, and (2) denying his motion for a new trial on the ground of ineffective assistance of counsel. We affirm.
The abstract of judgment incorrectly refers to appellant’s third offense as a conviction under Health and Safety Code section “11351.1,” rather than Health and Safety Code section 11351.5. We will direct the trial court to prepare an amended abstract of judgment.
BACKGROUND
Prosecution Case
March 1, 2005 Incident
Berkeley Police Officer Lindenau testified that on the afternoon of March 1, 2005, he was on duty in a semi-marked police vehicle. At around 3 p.m., he received information from a fellow officer that a female in a white Lexus had been seen purchasing suspected marijuana near Tyler and California Streets. He drove to California Street and saw the white Lexus double-parked on the street and a green Chevrolet Cavalier (Chevy) stopped alongside the Lexus. Lindenau approached the Lexus and noticed that the driver of the Chevy, later identified as appellant, looked extremely nervous.
As he got closer, Lindenau smelled burnt marijuana coming from the Chevy, noticed that appellant’s eyes were bloodshot and watery, and saw a marijuana cigarette in the console cupholder of the vehicle. Lindenau ordered appellant to step out of the vehicle, handcuffed him, and told him he was going to search the vehicle. Appellant said he had a medical marijuana card, which Lindenau recovered from appellant’s wallet. Lindenau then searched the Chevy and found three sandwich bags with rocks of suspected crack cocaine in the center console. He also found a car rental agreement for the Chevy and a registration card for Berkeley Adult School, both in appellant’s name.
April 13, 2005 Incident
Oakland Police Officer Valle testified that at around 5:50 p.m. on April 13, 2005, he was on working as an undercover officer near Uptown Liquor Store in Oakland. Valle approached a man, later identified as “Addington,” outside the liquor store, and said in Spanish that he was looking for cocaine. Addington said his supplier would be there shortly, and Valle waited with Addington. After a period of time, Addington said his supplier was arriving and waived down a Nissan Sentra driving by. The Nissan pulled over and Valle and Addington approached the passenger side of the car. Addington told the passenger, appellant, that Valle was with him and had $20. Valle gave appellant two $10 bills of controlled currency, and appellant said to the driver, a female, “Hook him up.” The driver retrieved four rocks of suspected crack cocaine from a sandwich bag and handed them to Valle. As Valle was walking away, appellant called to him, handed him a “yellow Post-It note” with the letters “J.B.” and a telephone number, and said “Call me anytime.”
Oakland police officers photocopy controlled currency in advance of “buy/bust operations” in order to keep track of the serial numbers.
Oakland Police Officer Kelly testified that at around 6:20 p.m. on April 13, 2005, while on duty in a fully marked police vehicle, he received a dispatch to stop a gray Nissan Sentra travelling northbound on Shattuck. Kelly saw the Nissan pass by and stopped the vehicle. He arrested the passenger (appellant), searched him, and found the two controlled $10 bills in his front pants pocket. On the passenger side of the Nissan, Kelly found a cell phone and yellow Post-It notes with a phone number and the initials J.B. The cell phone rang when Valle called the phone number written on the yellow Post-It notes. A female officer searched Randi Harvey, the driver of the Nissan, and found 19 rocks of suspected crack cocaine in a plastic bag in her waistband. Harvey was also arrested.
Defense Case
Appellant testified that on March 1, 2005, he had rented a car to get to Berkeley Adult School. He let a friend, Kevin Mitchell, use the car after Mitchell dropped him off at school. Mitchell picked appellant up after school around 2:30 p.m. Appellant then dropped Mitchell off on Alcatraz Avenue and waited in the car for Mitchell to return. While appellant was waiting, a number of police officers arrived from all directions and an officer pulled appellant out of the car and handcuffed him. Appellant did not know anything about the rocks of cocaine found in the rental car.
Appellant further testified that on the afternoon of April 13, 2005, he was practicing cutting hair at a barber shop. He called Harvey, whom he was dating, for a ride home. Harvey picked him up in a silver Nissan at around 6:15 p.m. They drove northbound on Shattuck to get gas, and Harvey gave appellant $20 to fill up the tank. On their way to the gas station, they were pulled over by the police.
A jury found appellant guilty of two counts of possession for sale of cocaine base (Health & Saf. Code, § 11351.5), and one count of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The court denied his motion for a new trial. Following the imposition of judgment, appellant filed this timely appeal.
DISCUSSION
I. Motion for Continuance
Appellant first contends the trial court erred in denying his motion for a continuance so he could be represented by retained counsel.
On September 19, 2006, the first day of trial, appellant presented the court with a letter from Attorney Kellin Cooper stating that appellant “is in the process of hiring me to represent him for his trial. I am not available to appear with [appellant] today, as I am in a murder trial in Napa County. [¶] Thank you for your consideration in this matter. If you have any questions, please feel free to call me.”
The trial court denied the motion, stating that “it’s my long experience in these courts that when someone tells me ‘they’re in the process of hiring me’ that’s usually a code word for we’re discussing finances and nothing has been finalized yet. So it does not appear to me on the face of this note that . . . Cooper would even be prepared to represent [appellant] at this time, but more importantly he’s not available. This letter indicates he’s in a murder trial in Napa County.” The court further explained, “This matter was called for trial this morning, all sides answered ready. The charges have been pending for over a year. It’s been sent to an available trial court that’s available and ready to try this case with more than competent counsel to represent [appellant], and it seems to me that -- well, let me just say that I’m not willing to delay these proceedings any longer on the possibility that . . . Cooper may be willing at some point in the undetermined future to represent [appellant].”
Defense counsel asked the court to reconsider its decision, conceding that “I guess the motion is untimely,” but arguing that appellant had a right to counsel of his choice. Defense counsel acknowledged that “[t]here would be some burden on administration of justice,” but noted that most of the prosecution witnesses were law enforcement officers, not civilians. The trial court responded, “As [appellant] indicated to me, he’s dissatisfied with the offer that was made to him. What this tells me is that [appellant], who has now been facing these charges for a year and a half, was hoping that the cases would be dismissed or he would get an offer that he’s willing to take. And now he’s on the threshold of a jury trial, he’s not hearing what he wants to hear, so now he’s decided he wants to go hire somebody else who he thinks will get him a better offer, which is not going to happen. He doesn’t have this person hired. The person isn’t here to stand in, so it’s nothing but toying with the [c]ourt and toying with the [c]ourt’s calendar. That’s all it is. And so it’s not going to happen. We’re going forward.”
Appellant then stated he felt he was being misrepresented. The court conducted a hearing on appellant’s Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) and, after listening to appellant’s complaints, denied the motion. The court reiterated that he would not continue the proceedings on the chance that appellant might hire Cooper, and appellant responded, “I’m not only hiring, I got -- did hire.” The court noted that was not what Cooper’s letter said.
Two days later, on September 21, 2006, appellant again expressed dissatisfaction with his counsel and stated he had a right to counsel of his choice. The court said, “I’ve explained all of this to you. You can’t wait until the day that you get sent out to trial and then decide, ‘I want to hire somebody.’ That’s not the way it works. These charges have been pending for a year and a half.” On September 25, appellant appeared in court with Attorney George Holland. The court permitted Holland to substitute in as counsel for appellant on the understanding that Holland was prepared to proceed without a continuance.
Appellant now claims that in refusing to grant a continuance, the court prevented Cooper from representing him and thereby violated his right to counsel of his choice. “The right to the effective assistance of counsel ‘encompasses the right to retain counsel of one’s own choosing. [Citations.]’ [Citation.] Underlying this right is the premise that ‘chosen representation is the preferred representation. Defendant’s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.’ [Citation.]” (People v. Courts (1985) 37 Cal.3d 784, 789.) The erroneous deprivation of a defendant’s counsel of his choice is a structural error requiring reversal, and is not subject to harmless error analysis. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 149-150.)
“Generally the trial court has discretion whether to grant a continuance to permit a defendant to be represented by retained counsel. [Citation.]” (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) “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.]” (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) Trial courts should accommodate requests for continuances to obtain retained counsel “ ‘to the fullest extent consistent with effective judicial administration.’ [Citation.]” (Id. at p. 791.) In determining whether denial of a continuance is so arbitrary as to violate due process, courts look to the circumstances of each particular case, particularly the reasons presented to the trial court. (Ibid.)
In Courts, our Supreme Court held that the trial court abused its discretion in denying the defendant’s request for a continuance one week before trial so he could have retained counsel represent him against a murder charge. (People v. Courts, supra, 37 Cal.3d at p. 791.) The record established that the defendant “engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date.” (Ibid.) The defendant had contacted counsel two months before trial and spent the following weeks trying to raise the necessary funds for a retainer. (Ibid.) The defendant’s attempt to conclude arrangements with counsel was delayed due to counsel’s vacation. (Id. at p. 792.) The record failed to show that a continuance would have significantly inconvenienced the court or the parties. (Id. at p. 794.) The court contrasted the defendant’s continuance request, made a week before trial, with cases in which defendants had made “eve-of-trial, day-of-trial, and second-day-of-trial requests” and courts had “found the lateness of the continuance request to be a significant factor which justified a denial where there were no compelling circumstances to the contrary.” (Id. at p. 792, fn. 4.)
Here, unlike in Courts, appellant made no showing that he engaged in a good faith, diligent effort to retain counsel in the weeks before the scheduled trial date. Appellant also failed to present the court with any circumstances justifying the late request for a continuance. Instead, on the first day of trial, appellant sought a continuance so he could secure the services of a retained attorney, and presented the court with Cooper’s letter stating that appellant was “in the process of hiring” him.
Although appellant contends that his public defender, John McDougall, admitted at the September 19, 2006 trial setting conference that he was not prepared for trial, the record does not support this assertion. Appellant refers us to his declaration submitted with his motion for new trial, in which he stated that “McDougall failed to file pretrial motions and did not prepare for trial. At the trial setting before Judge Clay on September 19, . . . McDougall admitted that he was not prepared for trial. However, Judge Clay sent the case out for trial before Judge Reardon. [¶] . . . I asked Judge Reardon on September 19 . . . for a continuance so that I could retain private counsel, telling the judge that . . . McDougall had done no work on the case. . . . McDougall admitted to Judge Reardon that he was not ready for trial. Judge Reardon denied my request for a continuance and gave . . . McDougall until the following day to prepare.” The record before us does not contain a reporter’s transcript of the September 19 proceedings before Judge Clay. The transcript of the September 19 proceedings before Judge Reardon does not reveal any statement from McDougall that he was not prepared for trial. To the contrary, during those proceedings, appellant asserted that he was being misrepresented, and the court held a Marsden hearing and heard appellant’s concerns. The court then denied the motion, stating, “I see absolutely no reason to discharge . . . McDougall as your counsel.” Appellant does not challenge the denial of his Marsden motion on appeal.
Because of the untimeliness of appellant’s request, we find Jeffers more apt. In Jeffers, on the day of trial the defendant sought a continuance to retain counsel after discovering his defense would be assigned to an appointed counsel whom the defendant felt was unprepared. The lateness of the request, coupled with an absence of compelling reasons to support the late request and a valid concern about inconvenience to witnesses, justified denial of the request. (People v. Jeffers, supra, 188 Cal.App.3d at pp. 849-851.) Here, as in Jeffers, appellant did not request a continuance until the day of trial and offered no explanation for his delay. The court noted that the case had been called for trial that morning and the charges had been pending for over a year, and that Cooper was not available to stand in and was not yet hired. In these circumstances, the trial court could find appellant was “ ‘unjustifiably dilatory’ ” in obtaining counsel or arbitrarily choosing to substitute counsel at the last minute. (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) The court did not abuse its discretion in denying the continuance.
Appellant asserts that at the time of the motion for continuance he had already paid a retainer to Cooper, and the court erred in interpreting Cooper’s letter to mean he was not yet hired. Appellant cites to his declaration, submitted with his later motion for a new trial, which stated that at the time of his request for a continuance “Cooper had been paid a substantial retainer to represent me.” However, this declaration was not before the court when it denied appellant’s motion for continuance. Instead, the only evidence before the court was Cooper’s letter stating appellant was “in the process of hiring” him, which the court reasonably interpreted to mean appellant had not yet hired him. Although appellant later asserted during the Marsden hearing that “I’m not only hiring, I got -- did hire” Cooper, the trial court reasonably rejected this assertion, finding it unsupported by Cooper’s letter. Moreover, we note that although appellant’s declaration states that he had paid Cooper a retainer at the time of the motion for continuance, appellant’s counsel conceded at the hearing on the motion for a new trial that “it was pretty clear that [Cooper] was not in fact retained to do the trial at that point.”
Appellant’s reliance on U.S. v. D’Amore (9th Cir. 1995) 56 F.3d 1202 is misplaced. We note initially that we are not bound by this federal decision. (People v. Williams (1997) 16 Cal.4th 153, 190.) Moreover, D’Amore held that the trial court abused its discretion in denying the defendant’s motion to substitute retained counsel of his choosing, because the court had not conducted an inquiry “adequate to create a ‘sufficient basis for reaching an informed decision.’ ” (D’Amore, at p. 1205; see id. at pp. 1205-1206, overruled on other grounds in U.S. v. Garrett (9th Cir. 1999) 179 F.3d 1143, 1145.) Here, the trial court demonstrated it was well-versed in the history of appellant’s case and the nature of appellant’s complaints about his counsel. Under these circumstances, the court had a more than adequate basis to make its decision, and no further inquiry was required.
II. Ineffective Assistance of Counsel
Next, appellant contends the court erred in denying his motion for a new trial on the ground that retained counsel, Holland, provided ineffective assistance due to a conflict of interest. Appellant argues Holland violated his duty of loyalty to appellant, because he decided not to call Harvey as a witness for appellant in part out of concern for Harvey’s welfare.
The trial court conducted an extensive evidentiary hearing on appellant’s motion for new trial and heard testimony from Harvey, Holland, and the district attorney, Stacie Pettigrew. Harvey testified that on her way to pick appellant up from the barber shop on April 13, 2005, she decided to stop at the Uptown Liquor Store. She saw Addington and did a drug transaction with him and another individual. She sold four rocks of cocaine to Addington for $20, or $5 each, after purchasing 30 rocks the previous night, also for $5 each. She then picked appellant up and they were pulled over by the police. The following day, Harvey gave the police a statement that “The white guy gave me $26 and I gave him four rocks. I was in the car with my boyfriend [J.B.] . . . we pulled off.” Harvey testified this statement was incorrect, because appellant was not in the car when she conducted the drug transaction. Although Harvey sometimes called appellant J.B. because those are his initials, she testified the yellow Post-It notes with the initials J.B. referred to her, not appellant. She was sometimes called J.B. for “Joe’s bitch,” because her first son’s father was named Joe.
Harvey further testified that on September 26, 2006, she met with Holland and discussed her testimony. On September 27, she was sworn in outside the presence of the jury and was advised of her right not to testify. Pettigrew advised Harvey of the potential penalties in her own pending criminal case. During a trial recess, Pettigrew then followed Harvey into the hallway outside the courtroom. Pettigrew told Harvey that if she testified, Pettigrew would make sure she went to prison. Harvey related the threat to Holland, who said he would not put her on the stand because “there was no reason for both [appellant and Harvey] to go to prison.” She did not tell her own attorney about the threat until several months later. Despite the threat, she was still willing to testify for appellant.
In support of the motion for new trial, Holland signed a declaration stating Harvey informed him on September 26, 2006, that she was willing to testify that appellant was not present at the drug sale. Holland declared that during the recess on September 27, Holland “heard the prosecutor tell . . . Harvey in the hall that she was going to ask that . . . . Harvey be sent to prison in her criminal case if she testified. [H]arvey’s attorney . . . was not present during this conversation.”
In his testimony at the motion for new trial, Holland was equivocal about whether his declaration was accurate. After repeated questioning by the court, Holland ultimately stated he could not now testify that Pettigrew threatened Harvey during the court recess. Pettigrew may have said something about jail or immunity during the recess, but she was speaking to another district attorney, not Harvey. Holland believed it would have been unethical for Pettigrew to have spoken to Harvey outside the presence of her attorney, and he would have reported it to the court had he observed it. Holland decided not to put Harvey on the stand because he thought her testimony would be harmful to appellant; the possibility that Pettigrew had threatened Harvey did not influence his decision.
Pettigrew testified that she never told Harvey that she would make sure Harvey went to prison if she testified. During the recess on September 27, Pettigrew might have spoken to another district attorney about her admonitions to Harvey in open court, but she did not specifically recall this.
The trial court denied the motion for a new trial. It found that Harvey’s testimony was “completely incredible” and her version of events was “downright silly.” Harvey’s insistence that the initials J.B. on the yellow Post-It note referred to her own nickname of “Joe’s bitch” was “an absolute whopper,” and Harvey’s testimony that she bought and sold the crack cocaine for the same price was “certainly ridiculous.” Harvey’s written statement to the police, which “clearly reads as [appellant] was in the car with her, though not involved in the drug transaction,” contradicted her testimony that appellant was not in the car during the transaction. As to Pettigrew’s alleged threat to Harvey, the court stated, “I don’t think that ever happened,” and noted that Harvey did not tell her own attorney about the threat at the time.
The court found that Holland “essentially . . . put together that declaration falsely.” The court “d[id] not think that [Holland] overheard . . . Pettigrew saying this to . . . Harvey,” and noted that if he had, he would have reported it to the court. The court found that Holland made a “strategic decision” not to call Harvey as a witness, because “he’s hobbled to some extent putting on a witness who is extremely incredible.” The court concluded Holland was not ineffective at trial, because there was no credible evidence that Harvey was threatened by the prosecution. The court likewise concluded there had been no prosecutorial misconduct.
“ ‘ “A criminal defendant’s right to effective assistance of counsel, guaranteed by both the state and federal Constitutions, includes the right to representation free from conflicts of interest. [Citations.] To establish a violation of the right to unconflicted counsel under the federal Constitution, [‘]a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.[’] [Citation.] To establish a violation of the same right under our state Constitution, a defendant need only show that the record supports an [‘]informed speculation[’] that counsel’s representation of the defendant was adversely affected by the claimed conflict of interest.” ’ [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 45.)
In cases in which a trial court denies a motion for new trial raising ineffective assistance of counsel claims, we uphold the trial court’s factual findings if they are supported by substantial evidence and we exercise our independent judgment on the legal issues. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) In reviewing the court’s factual findings, “all presumptions favor the trial court’s exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences. The trial court’s factual findings, express or implied, will be upheld if they are supported by substantial evidence. [Citation.]” (Id. at p. 724.)
The trial court did not err in denying appellant’s motion for new trial on the ground that Holland provided ineffective assistance of counsel. As detailed above, the court found no credible evidence that Pettigrew threatened Harvey. It found Harvey’s testimony completely incredible, and found Holland’s declaration untrue. The court concluded that Holland decided not to put Harvey on the stand, not because of any alleged threat by the prosecutor (as it found no such threat occurred), but because Holland believed her testimony would harm appellant.
It is the trial court’s function to determine the credibility of witnesses. (People v. Taylor, supra, 162 Cal.App.3d at p. 724.) On appeal, the substantial evidence rule bars us from reconsidering such credibility issues or substituting our judgment for the trial court’s. (People v. Pace (1994) 27 Cal.App.4th 795, 798.) As the trial court did not believe that Pettigrew threatened Harvey, appellant has not established the factual underpinnings of his ineffective assistance of counsel claim. The denial of the motion for new trial is affirmed.
Appellant also contends the trial court erred in denying his motion for new trial on the ground that the prosecutor acted improperly by threatening Harvey outside the presence of her attorney. As discussed above, the court found there was no credible evidence that Harvey was threatened by the prosecution. Thus, appellant has likewise failed to establish a factual basis for his prosecutorial misconduct claim.
DISPOSITION
The judgment is affirmed. We remand solely to direct the trial court to prepare an amended abstract of judgment correctly referring to the third offense as Health and Safety Code section 11351.5, and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation.
We concur. JONES, P.J., NEEDHAM, J.