Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF1865, Richard W. Stanford, Jr., Judge.
Howard C. Cohen, 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, Peter Quon, Jr., and Marissa Bejarano, 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 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 erroneously allowed the prosecution to amend this count during trial and, in any event, there was insufficient evidence to support the element 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.
One morning after the two spent the night together, they 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 returned to the hallway.
At trial, Doe admitted she called 911 seeking police assistance, but denied any 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. Doe then told the dispatcher defendant had left his mother’s apartment carrying a black bag.
A responding police 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. The officer testified Doe told him that when defendant reemerged from the apartment 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.
Defendant attempted to flee, but was caught 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, over defendant’s personal objection, Dolnick moved to continue the trial. In support of the motion, 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. Dolnick also noted his investigator “is going to be gone next week on a homicide investigation . . . .”
The court continued trial until October 2. While unpersuaded by Dolnick’s calendar conflicts, the court granted the request, expressing “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.
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.) Although defendant personally objected when his attorney moved to continue the original trial date, defendant failed to thereafter file a motion to dismiss the prosecution. “The defendant must also move to dismiss after the expiration of the allowable delay (but before the beginning of trial) so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided.” (People v. Wilson (1963) 60 Cal.2d 139, 147.)
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.” He further contends this case is distinguishable from Wright and other authorities because his attorney sought the continuance without objection by the prosecution and, as a result, a subsequent motion to dismiss would have been futile.
Case law has recognized an exception to the procedural requirements where the trial court failed to properly advise an unrepresented defendant about his or her statutory speedy trial rights. (Hill v. Municipal Court (1962) 206 Cal.App.2d 257, 260-261; Brewer v. Municipal Court (1961) 193 Cal.App.2d 510, 516.) And in People v. Wright, supra, 52 Cal.3d 367, although the defendant unsuccessfully argued the trial judge and his attorney collaborated to conceal from him the true reason for the numerous continuances, the Supreme Court intimated such a circumstance, if established, might support relief from the procedural requirements. (Id. at p. 391.) But this case is not analogous to either situation. Defendant was represented, his attorney expressed the reasons for seeking a continuance on the record, and the trial court granted the motion on one of the stated grounds. Defendant’s objection to the continuance reflects he knew about his rights. Furthermore, in People v. Johnson (1980) 26 Cal.3d 557 the defendant both objected when his attorney sought a continuance and, after the 60-day period expired, sought dismissal of the prosecution “on his own behalf . . . on the ground that he had been denied a speedy trial.” (Id. at pp. 563-564.) Defendant failed to take this crucial step here, and nothing in the appellate record supports his assertion that a motion to dismiss would have been futile.
But even on the merits, defendant’s argument is unavailing. As noted, section 1382 allows a court to continue trial beyond 60 days after arraignment where good cause to do so is shown. (§ 1382, subd. (a)(2).) “[W]hat 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. [Citation]” (People v. Ludviksen (1970) 8 Cal.App.3d 996, 999; see also People v. Johnson, supra, 26 Cal.3d at p. 570.)
While section 1382 is “‘supplementary to and a construction of’ the state constitutional speedy trial guarantee” (People v. Martinez, supra, 22 Cal.4th at p. 766), unlike the constitutional right, “the statutory right to be tried within 60 days [citation] cannot properly be termed ‘fundamental’ . . . . [Citation.]” (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.)
Here, defendant’s recently-appointed attorney sought a single continuance, in part, to complete discovery and prepare for trial. Contrary to defendant’s claim of abandonment, the trial court expressly granted the continuance to ensure he received “the best representation . . . .” As noted, a defense attorney’s need for additional time to adequately prepare for trial or secure the attendance of witnesses constitutes good cause to delay trial beyond the statutory period. (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 treated like a defense attorney’s attempt to continue trial to resolve a calendar conflict. (See People v. Johnson, supra, 26 Cal.3d at pp. 567, fn. omitted [“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.
Defendant cites no authority supporting the extension of Johnson’s holding on a defense counsel’s calendar conflicts to the caseload conflicts of investigators, nor does he cite authority imposing an obligation on defense counsel to either hire a new investigator or show why counsel could not do so. Referring to the portion of the plurality opinion in Johnson “question[ing]” the wisdom of prior “decisions which assume that court congestion or excessive public defender caseloads necessarily constitute good cause to deny dismissal” (People v. Johnson, supra, 26 Cal.3d at pp. 570-571), he suggests the same principle should apply to trial delays resulting from “too few investigators upon whom the attorneys are dependent.” But, nothing in Johnson suggests these comments extend to a public defender’s staff. “[T]he language used in any opinion is to be understood in the light of the facts and the issue then before the court,” and it is elementary that “cases are not authority for propositions not considered. [Citation.]” (McDowell and Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38.)
Defendant’s proposed rule also ignores the rationale for permitting a defense attorney to unilaterally seek a continuance to complete discovery and prepare for trial: The need to protect a criminal defendant’s right to adequate legal representation. A defendant’s right to the aid of investigative services is considered an extension of the right to the effective assistance of counsel. (Sand v. Superior Court (1983) 34 Cal.3d 567, 575, fn. omitted [“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. We affirm the order continuing trial beyond the 60-day statutory requirement.
2. The Midtrial Amendment of 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 initial 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.” At the end of the hearing, defense 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 nonetheless ordered defendant held to answer on all counts alleged, 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.” During trial, the parties questioned Doe and defendant’s mother about the nature of the relationship between Doe and defendant.
Near the end of his case-in-chief, the prosecutor moved to amend count 2 to allege Doe and defendant were “current or former cohabitants.” He conceded “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. Analysis
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 . . . .” Generally, 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.)
Given his counsel’s argument at the preliminary hearing and cross-examination of Doe and defendant’s mother at trial, defendant does not claim the late amendment to the information prejudiced him. But, citing section 1009’s limitation on the exercise of this discretionary authority by prohibiting an amendment “to charge an offense not shown by the evidence taken at the preliminary examination” (§ 1009), defendant claims the trial court erred in allowing the prosecution to amend count 2 because “there was insufficient evidence adduced at the preliminary hearing that [he] and Doe had ever cohabited.” This argument lacks merit.
First, we note defendant again waived the right to assert this claim on appeal. 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.
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.) Defendant never filed a motion under section 995 to set aside count 2.
Again, even on the merits, defendant’s argument would fail. To justify a magistrate’s order holding a defendant to answer a criminal charge, there need only be sufficient evidence as to “lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.” (People v. Nagle (1944) 25 Cal.2d 216, 222.) The evidence does not have to be such as would support a conviction at trial. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) “‘“[A]lthough there must be some showing as to the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate.”’ [Citation.]” (Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 150.) A reviewing court must draw all legitimate inferences from the evidence in favor of the information and, so long as there is some evidence supporting the information, the reviewing court cannot substitute its judgment as to the weight or sufficiency of the evidence in place of that of the magistrate. (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474; Rayyis v. Superior Court, supra, 133 Cal.App.4th at p. 150.)
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.)
Doe described her relationship with defendant to the officer as a two-year-long intimate relationship in which the couple regularly saw each other and spent the night together. Defendant attacks the officer’s testimony, parsing it and suggesting alternative inferences that could be drawn from Doe’s statements. But the foregoing authorities make clear, this approach fails to show the trial court erred in amending the complaint. To set aside the information, there must be “‘a total absence of evidence to support a necessary element of the offense charged.’ [Citation.]” (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835.) Here, there was evidence, however slight, to support a finding of each element for a prosecution under section 273.5, including current or former cohabitation. Thus, the trial court did not err in granting the prosecution’s midtrial request to amend count 2.
3. Sufficiency of the Evidence to Support Conviction on Count 2
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.)
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 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 “[i]t 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.