Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed, Super. Ct. No. 06CF1865
Andrew E. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Angela Borzachillo and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury found defendant Anthony Maurice Elston guilty of several crimes, including assault with a firearm (Pen. Code, § 245, subd. (a)(2); all further statutory references are to the Penal Code) and domestic battery with corporal injury (§ 273.5). It also found he personally used a firearm in committing some of the offenses. Subsequently, the court found defendant had suffered a prior serious felony conviction. (§ 667, subds. (a)(1), (d) & (e)(1); § 1170.12, subds. (b) & (c)(1).) Based on the verdicts and findings, the court sentenced him to a 15-year prison term.
Defendant now seeks reversal of his entire conviction, claiming the trial court violated his statutory speedy trial right by granting, over his personal objection, defense counsel’s request to continue trial beyond 60 days after the arraignment (§ 1382, subd. (a)(2)). He also argues his conviction on count 2 for violating section 273.5 should be reversed because the trial court allowed the prosecution to amend this count during trial and because there was insufficient evidence of cohabitation. Finding no error, we affirm the judgment.
FACTS
The victim, who testified under subpoena using the fictitious name Jane Doe, claimed she had a two-year “off and on” intimate relationship with defendant that included a “few months” during which he lived with her. In June 2006, defendant lived at his mother’s apartment where he and Doe slept together “once, maybe twice” a week.
Doe spent the night of June 16 with defendant. The next morning, the two had an argument over a telephone call defendant received from another woman. Defendant walked Doe to the apartment door, placed her purse in the hallway, and told her to get out. While in the hallway, the two engaged in a physical altercation. Defendant entered the apartment, but then reappeared in the hallway.
Doe admitted calling 911 from a nearby apartment seeking police assistance, but she denied recollection of what occurred when defendant reemerged from the apartment. The police dispatcher who received the call testified Doe reported that her boyfriend beat her, attempted to hit her with a gun, and pointed it at her. She then told the dispatcher defendant had left his mother’s apartment carrying a black bag.
A responding police officer testified Doe told him that when defendant reemerged from the apartment the first time, he held a gun, grabbed her by the collar, put the gun into her mouth, and said, “I am going to kill you, bitch.” Defendant then struck Doe on the upper lip with the butt of the gun. The officer described Doe as “trembling and crying,” wearing a shirt with a torn collar, with red marks and bruising on her face and neck, swelling and bruising on her left eye, and a cut on the inside of her upper lip.
Defendant attempted to flee, but was stopped and arrested by the responding police officers. Although an officer, at one point, saw defendant carrying a black plastic bag, the arresting officers never located either it or a gun.
DISCUSSION
1. The Speedy Trial Claim
a. Background
The trial court arraigned defendant on July 11, 2006. At that time, he was represented by a member of the public defender’s office. Trial was initially scheduled to commence on August 28. But on Friday, August 25, the public defender’s office declared a conflict. The court then appointed Jeremy Dolnick, a member of the alternate public defender’s office to represent defendant and trailed the commencement of trial until September 8.
On the latter date, Dolnick moved to continue trial. Defendant personally opposed the motion. In support of the request, Dolnick cited “my own trial calendar,” and his office’s “need [for] adequate time to go through the discovery . . . provided . . . by the People” and to contact witnesses, including the victim. In part, Dolnick noted his investigator “is going to be gone next week on a homicide investigation . . . .”
The court granted the request and continued trial until October 2. While finding Dolnick’s “other trials . . . don’t play much of a factor in [the] analysis,” the court expressed “concern” about “the limited amount of time that [the defense] investigator has had on this case and his ability to prepare . . . the trial for you.” “[Y]ou need time for investigation to make sure that [defendant] gets the best representation . . . .”
b. Analysis
Defendant contends his right to a speedy trial was violated by the continuance of trial beyond 60 days after his arraignment. He argues that, for purposes of determining whether good cause exists for the delay, the defense investigator’s scheduling conflict should be treated the same as an attorney’s scheduling conflict. Furthermore, defendant claims that since his trial attorney sought the continuance over his express objection, the objection should be treated as a motion to dismiss the prosecution.
Both the federal and state Constitutions guarantee a defendant the right to speedy trial in a state criminal prosecution. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1; see People v. Martinez (2000) 22 Cal.4th 750, 754.) In addition, by statute a felony prosecution “shall . . . be dismissed” if “a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information,” “unless good cause to the contrary is shown . . . .” (§ 1382, subd. (a)(2).)
Preliminarily, we note defendant waived his right to raise this issue. “[A] defendant’s failure to timely object to the delay and thereafter move for dismissal of the charges is normally deemed a waiver of his right to a speedy trial. [Citations.]” (People v. Wright (1990) 52 Cal.3d 367, 389.) Defendant argues his express objection to the continuance should be treated as both an objection and a motion to dismiss, claiming “it will almost never be possible for an indigent defendant who demands a trial within the sixty-day speedy trial limit to challenge his attorney’s request for a continuance other than by making the basic objection.” Not only does defendant fail to cite any supporting authority for this proposition, in People v. Johnson (1980) 26 Cal.3d 557, the defendant both objected and sought dismissal of the prosecution “on his own behalf . . . on the ground that he had been denied a speedy trial” where his attorney sought a continuance of the case. (Id. at p. 564.)
Even on the merits, defendant’s argument is unavailing. Contrary to his assertion that section 1382 codifies the constitutional speedy trial right, “The statutory speedy trial provisions . . . are ‘supplementary to and a construction of’ the state constitutional speedy trial guarantee. [Citations.]” (People v. Martinez, supra, 22 Cal.4th at p. 766.) Unlike the constitution speedy trial guarantees, “the statutory right to be tried within 60 days [citation] cannot properly be termed ‘fundamental’ . . . .” (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781.) Consequently, the general rule “that the power to control judicial proceedings is vested exclusively in counsel” (ibid.) applies, and “[a] continuance granted at the request of counsel normally constitutes such good cause [citation], at least in the absence of evidence showing incompetency of counsel [citation] or circumstances where counsel’s request for a continuance is prompted only by the need to service other clients and the defendant himself objects to the delay. [Citation.]” (People v. Wright, supra, 52 Cal.3d at p. 389.)
The Supreme Court has recognized that a defense attorney’s continuance request premised on a need to adequately prepare for trial or secure the attendance of witnesses constitutes good cause for a continuing trial beyond the statutory period, but a continuance sought simply to resolve a calendar conflict with the attorney’s other clients will not satisfy the good cause requirement. (People v. Frye (1998) 18 Cal.4th 894, 938-939; People v. Johnson, supra, 26 Cal.3d at pp. 566-568; Townsend v. Superior Court, supra, 15 Cal.3d at pp. 782-784.) Acknowledging this fact, defendant argues the defense investigator’s scheduling conflict with another case should be equated to and treated like a defense attorney’s effort to resolve a calendar conflict. (People v. Johnson, supra, 26 Cal.3d at pp. 567, fn. omitted [“the consent of appointed counsel to a postponement of trial beyond the statutory period, . . . given solely to resolve a calendar conflict . . ., cannot stand unless supported by the . . . consent of the client himself”].)
We reject this approach. First, defendant again cites no authority to support extending Johnson’s holding to the calendar conflicts of defense investigators. Nor does he cite any authority requiring a defense attorney to either hire a new investigator or show why another investigator could not have been hired.
Second, it ignores the rationale for permitting a defense attorney, in some cases, to unilaterally seek a continuance: The need to protect a criminal defendant’s right to the effective assistance of counsel. A criminal defendant’s right to the aid of investigative services is considered an extension of his right to the effective assistance of counsel. (Sand v. Superior Court (1983) 34 Cal.3d 567, 575 [“both state and federal decisions have recognized that the right to counsel and to due process may include the right to expert and investigative services”]; In re Ketchel (1968) 68 Cal.2d 397, 399 [“the right to an effective counsel at trial includes not only the personal advice and service of counsel but also the aid and advice of experts whom counsel deems useful to the defense”].) Thus, where an investigator’s conflicting caseload delays his or her efforts to assist counsel in preparing a case for trial, the question is whether that delay will adversely affect counsel’s ability to adequately represent the defendant. If so, good cause exists to permit a continuance.
The trial court so found in this case and defendant has failed to show its conclusion was an abuse of discretion. (People v. Ludviksen (1970) 8 Cal.App.3d 996, 999 [“what constitutes good cause for the delay of a trial is a matter within the discretion of the trial court and . . . its determination in the premises, absent a showing of any abuse of that discretion, will not be disturbed on appeal”].) We affirm the order continuing trial beyond the 60-day statutory requirement.
2. Count 2
a. Background
Section 273.5, subdivision (a) makes it a felony to “willfully inflict[] upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition . . . .” Count 2 of the felony complaint charged defendant with violating this statute, alleging he “inflict[ed] corporal injury . . . upon Jane Doe, who currently has a dating relationship with [him]” (Capitalization omitted.)
The officer who interviewed Doe was the sole prosecution witness during the preliminary hearing. When asked “[w]hat did [she] tell you about her relationship with [defendant],” the officer responded, “She referred to the relationship as they’ve been in an intimate relationship for approximately two years. They see each other regularly. She spends the night at his house regularly.” Counsel argued defendant should not be bound over for trial on count 2, claiming section “273.5 . . . requires cohabitation, spouse[,] or a child in common” and asserting “I don’t think there’s sufficient evidence to prove the relationship between [defendant] and [Doe].” The magistrate ordered defendant held to answer all of the charges, including count 2.
The prosecution filed an information that charged defendant with a felony violation of section 273.5, subdivision (a), again alleging Doe “currently has a dating relationship with the defendant.” But during trial, the prosecutor moved to amend count 2 to delete this allegation and insert in its place that the two were “current or former cohabitants.” The prosecutor conceded that “a dating relationship without more is insufficient” to support a conviction under section 273.5, but argued the amendment was appropriate citing “the testimony of Miss Doe” that she and defendant had previously “lived together . . . in an intimate relationship . . . .” Over a defense objection, the trial court granted the request and amended count 2 by interlineation to allege Doe was the “cohabitant or former cohabitant of the defendant.”
b. Validity of the Amendment
Defendant claims the trial court erred in allowing the prosecution to amend count 2 “because there was insufficient evidence in the preliminary hearing transcript to support the . . . section 273.5 allegation.” This argument lacks merit.
The felony complaint charged defendant with violating section 273.5, and at the completion of the preliminary examination, the magistrate issued a commitment order finding sufficient cause to believe he was guilty of this offense. (§ 872, subd. (a).) In conformity with the magistrate’s finding, the district attorney filed an information charging defendant with the same crime. (§ 739.)
Section 1009 declares, “The court in which an action is pending may order or permit an amendment of an . . . information . . . at any stage of the proceedings . . . .” Whether or not to allow an amendment is a matter falling within the trial court’s discretion. (People v. Witt (1975) 53 Cal.App.3d 154, 164-165.)
Defendant notes that section 1009 further provides that an information “cannot be amended . . . so as to charge an offense not shown by the evidence taken at the preliminary examination.” (§ 1009.) But here, the information charged defendant with violating section 273.5. The prosecutor merely sought to amend this count to correct a defect in the allegation of the crime’s substantive elements. In People v. Cancimilla (1961) 197 Cal.App.2d 242, the court upheld an order allowing the prosecution to amend the information at the close of evidence to correct a conspiracy charge that failed to identify a coconspirator or specify an overt act. “Section 1009 . . . permits this ‘at any state of the proceedings.’ Applied to the circumstances of this case, neither the code section itself nor the granting of the motion to amend impaired any substantial right of appellant nor denied him due process otherwise. No new offense is permitted to be charged by the section and none was charged by the amendment.” (Id. at p. 252.)
To the extent defendant claims there was insufficient evidence presented at the preliminary examination to support count 2, he waived the right to assert this claim. Section 995 allows a motion to set aside an information where “the defendant had been committed without reasonable or probable cause.” (§ 995, subd. (a)(2)(B).) But section 996 declares that “[i]f the motion to set aside the . . . information is not made, the defendant is precluded from afterwards taking the objections mentioned in Section 995.” In People v. Bartlett (1967) 256 Cal.App.2d 787, the court noted “[a] defendant who fails to move under section 995 to dismiss an information charging an offense other than the one designated in the commitment order has been held to have waived such objection. [Citations.]” (Id. at p. 792.) And, in People v. Ortiz (1962) 208 Cal.App.2d 313, the appellate court applied the waiver rule where the defendant claimed he had been “committed to stand trial for an offense not proven to exist.” (Id. at p. 316.) Defendant’s reliance on Jones v. Superior Court (1971) 4 Cal.3d 660 is unavailing since that case involved a writ proceeding challenging an order denying a section 995 motion.
c. Sufficiency of the Evidence
Defendant also challenges his conviction of section 273.5 on the ground “the evidence adduced at trial was insufficient to prove the cohabitation element.” Again, we disagree.
“The applicable standard of review is well settled: ‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.)
Section 273.5 applies where a defendant inflicts corporal injury on a “cohabitant” or “former cohabitant.” (§ 273.5, subd. (a).) “The term ‘cohabitant’ has been interpreted ‘broadly’ to refer to those ‘“living together in a substantial relationship-one manifested, minimally, by permanence and sexual or amorous intimacy.”’ [Citations.] ‘The element of “permanence” in the definition refers only to the underlying “substantial relationship,” not to the actual living arrangement.’ [Citation.] Permanence does not require exclusivity in either the relationship or the living arrangement. [Citation.]” (People v. Taylor (2004) 118 Cal.App.4th 11, 18-19.)
At trial, Doe testified that before the assault, she had a two-year “off and on” intimate relationship with defendant that had included a “few months” during which he lived with her. Defendant was living with his mother when the incident occurred, but Doe testified they still slept together “once, maybe twice” a week. In addition, defendant’s mother admitted Doe “called me Mom,” and when asked “how many times” Doe “spent the night” at her apartment, defendant’s mother responded, “[a] lot.”
Defendant questions the veracity of Doe’s trial testimony claiming “none of her statements to the police indicate that there was a living arrangement” between them. But “[i]f a trier of fact has believed the testimony [of a witness] . . . this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions. [Citations.]” (People v. Swanson (1962) 204 Cal.App.2d 169, 173.) “Contradictions and inconsistencies alone will not necessarily constitute inherent improbability. [Citations.]” (Id. at p. 172.) And “it is not enough that the testimony may disclose circumstances which are unusual. [Citations.]” (Ibid.) Consequently, we conclude the evidence supports the jury’s verdict on count 2.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.