Opinion
H034299.
2-18-2010
THE PEOPLE, Plaintiff and Respondent, v. ROSEMARY BELLE GREENLAW, Defendant and Appellant. H032961.
Not to be Published in Official Reports
Defendant Rosemary Belle Greenlaw was charged with three felonies: one count of grand theft (Pen. Code, §§ 484, 487, subd. (a), count 1) and two counts of recording a false instrument (id., § 115, counts 2 & 3). The charges arose from actions defendant took in connection with the homeowners association (HOA) that governed the townhome complex where she lived. Defendant allegedly made an unauthorized withdrawal from the HOA checking account at Bank of America. She also filed statements of information with the Secretary of State, representing herself as the secretary and chief financial officer of the HOA, when, according to the minutes of HOA meetings, she did not hold those positions.
The jury acquitted defendant of the theft charge but found her guilty of the two false instrument offenses. The trial court suspended imposition of sentence, imposed a fine of $ 5,000, and placed defendant on probation for three years. The trial court later imposed a victim restitution order, requiring defendant to pay restitution to the HOA in the amount of the allegedly unauthorized withdrawal.
Defendant has filed two appeals. Case No. H032961 challenges the judgment; case No. H034299 challenges the postjudgment restitution order. On our own motion we have ordered the two appeals considered together for purposes of oral argument and opinion.
In case No. H032961, defendant argues that the trial court erred in admitting into evidence copies of HOA meeting minutes from 2003, 2004, and 2005, which, she claims, were inadmissible hearsay. She further argues that the prosecutor committed prejudicial misconduct in her argument to the jury, that the trial court erred in refusing defendants request to discharge her retained counsel on the first day of trial, and that the court improperly imposed a fine based upon count 1, of which she was acquitted. Defendants first argument has merit insofar as it applies to the 2003 meeting minutes. We reject her remaining contentions. Since the 2003 minutes were the only evidence to support defendants conviction of count 2, we shall reverse the judgment in case No. H032961 and remand the matter for resentencing on count 3 only.
In case No. H034299, defendant claims there is no evidence to support the finding that the HOA suffered any loss and that the restitution order is not related to the false instrument count or to her rehabilitation. The Attorney General concedes the first point. The HOA did not suffer any loss because Bank of America replaced the money defendant allegedly withdrew from the HOA account. The Attorney General maintains, however, that Bank of America is entitled to restitution and, therefore, that we should remand the matter for the trial court to reconsider the issue. Although defendant disagrees with the contention that she could properly be ordered to pay restitution to Bank of America, she agrees that remand is appropriate. We accept the concession and shall reverse the order in case No. H034299, remanding for the trial court to determine the victim restitution issue.
I. FACTS
Defendant owned a townhome that was part of a four-unit complex. In 2003 the other units were owned by Scott Owens, Rex Churchward, and Nick Ginsburg. The HOA that governed the complex was organized as a corporation and managed by the individual owners. The HOA held annual meetings, usually in the spring.
Minutes of the March 22, 2003 meeting showed that Owens was elected treasurer/secretary that day; Churchward was elected vice president and Ginsburg was elected president. At the same meeting, the HOA removed defendant "from signature authority for any [HOA] bank accounts." Minutes of a meeting held on August 9, 2003, showed that the HOA passed a financial policy that limited access to the HOA bank accounts to Ginsburg, Churchward, and Owens as president, vice president, and secretary/treasurer, respectively. Defendants reference to the HOA officers in a November 2003 letter to Ginsburg conflicted with the information contained in the minutes. Defendant wrote to Ginsburg, "[Y]ou stated that you are now the treasurer and secretary, as well as the president, in spite of the fact that California law prohibits an associations president from the concurrent offices of secretary or treasurer." On October 20, 2003, defendant filed a statement of information with the Secretary of State in which she listed herself as secretary and chief financial officer. This filing was the basis for the charge in count 2.
By the time of the 2004 annual meeting, Tower Adams had purchased Owenss townhome. Adams soon learned that defendant had had some prior dispute with the other homeowners. In an effort to reconcile all the HOA members, Adams convinced his fellow homeowners to elect defendant to the office of secretary. Adams was elected treasurer. Minutes of the March 20, 2004 meeting prepared by Churchward corroborated Adamss account. Adamss signature on those minutes is dated June 11, 2005. A second set of minutes for the same meeting prepared by defendant shows the treasurer position as unfilled. These minutes reflect acts that do not appear in Churchwards version and are the only minutes submitted at trial that bear the HOA corporate seal.
The dispute that led to the theft charge began on February 29, 2005. Ginsburg had died and David Gage was in the process of purchasing his townhome from the Ginsburg estate. The title company involved in the transaction wrote to defendant asking her for information about the HOA and whether the HOA was planning any assessments. Defendant responded that roof repairs and painting were anticipated and that a special assessment of $3,500 per unit was planned and that there would be a $125 fee for document preparation. Accordingly, Gage caused funds to cover these charges to be placed in escrow for distribution to the HOA upon closing. The title company asked Adams for instructions about where to deposit the funds. Adams claimed there was no proposed assessment but realized that the money in escrow had to go somewhere and, therefore, instructed the title company to deposit the money into the HOAs general operating account at Bank of America. Believing the money belonged to Gage, Adams intended to return it to him. But before Adams was able to do anything with the funds, defendant withdrew the money and placed it in another account in a different bank in the name of the HOA. Sometime in April 2005, Adams discovered the money was missing from the Bank of America account. He reported the loss to the police on May 4, 2005, accusing defendant of having stolen the money from Gage.
Bank of America, which had improperly allowed defendant to withdraw the funds when she had no authority to do so, reimbursed the HOA for the mistake by re-depositing the amount withdrawn into the HOA account. By the time of trial, that money was still in one of the HOA accounts. Adams did not know what happened to the money defendant had withdrawn. Gages realtor clarified that the funds originally deposited into the escrow had not come from Gages pocket but had been placed in escrow by the sellers to pay for the proposed painting and roof assessment.
At a HOA meeting on June 11, 2005, attended only by Adams, Gage, and Churchward, the HOA elected Gage as president and secretary, Churchward as vice president, and Adams as treasurer. Adams testified that the HOA had excluded defendant from any HOA office due to her uncooperative conduct. On September 19, 2005, defendant filed another statement of information with the Secretary of State, again listing herself as secretary and chief financial officer. This filing was the basis for the charge in count 3.
Gage, who had been elected secretary at the June 2005 meeting, prepared the minutes for that meeting. After the meeting, which had been held in the parking lot, Gage retired to his townhome, typed up the minutes, then returned to the parking lot and had the other attendees sign them. Gage added a handwritten certification to the copy of the June 11, 2005 minutes introduced at trial. The certification stated that the document was a "true and correct" copy of the minutes of the meeting held that day. Gage added an identical certification to the copies of the 2003 and 2004 meeting minutes. Thus, each set of minutes (except the minutes for the March 20, 2004 meeting prepared by defendant) bore Gages handwritten certification dated February 1, 2007. Gage explained that he had executed the certifications at the direction of the prosecutor during a meeting at the prosecutors office. Gage believed he had received the 2004 minutes prepared by Churchward from Churchward, himself. He did not know who had prepared the 2003 minutes or how they had come into his possession. He thought his real estate agent might have given them to him.
II. PROCEDURAL BACKGROUND
Defendant was charged in count 1 with grand theft of property belonging to David Gage. Count 2 charged her with filing a false instrument on October 20, 2003. And count 3 charged the filing of a false instrument on September 19, 2005. Defendant did not testify in her own behalf. She defended the theft charge by showing that the money she withdrew did not belong to Gage but to the HOA and that she had treated it as such. As to the false instrument charges, she argued that the prosecution had not carried its burden of proof and that she had acted only in the best interests of the HOA, as the de facto officers she had represented herself to be.
As we have noted, the jury found defendant not guilty on count 1 but guilty on counts 2 and 3. We shall include further procedural background in the sections that follow.
III. DISCUSSION — H032961
A. Admissibility of the HOA Minutes
1. Background
The prosecution offered copies of the HOA minutes to prove, among other things, the element of falsity required for conviction under Penal Code section 115, subdivision (a). That subdivision makes it a crime to knowingly offer "any false or forged instrument" for filing "in any public office within this state." (Pen. Code, § 115, subd. (a).) The minutes purportedly showed that defendant did not hold any office when she filed the documents in which she represented herself as HOA secretary and chief financial officer.
The trial court admitted the minutes, over defendants objection, pursuant to Corporations Code section 314, which provides that the original or a copy in writing "of the bylaws or of the minutes of any incorporators, shareholders, directors, committee or other meeting or of any resolution adopted by the board or a committee thereof, or shareholders, certified to be a true copy by a person purporting to be the secretary or an assistant secretary of the corporation, is prima facie evidence of the adoption of such bylaws or resolution or of the due holding of such meeting and of the matters stated therein." The trial court held that under this section the minutes were admissible to show the acts of the HOA but that statements of individuals recorded in the minutes were inadmissible for their truth. The court gave the jury the following limiting instruction: "Certain things are reported as having been said by people at that meeting and are attributed to the people. Those statements are not admitted for the truth of whats said. Similar to the emails which I admitted yesterday, they are admitted to show that this is what occurred at the meeting, this is the action taken at the meeting and this is what people said at the meeting, but not that what they said was necessarily true or not true."
This section does not, by its terms, apply to nonprofit corporations. It is, however, identical in all pertinent respects to Corporations Code section 7215, which applies to nonprofit mutual benefit corporations like the HOA. Thus, for our purposes, the evidentiary analysis is the same. For simplicitys sake, we shall refer in our analysis only to Corporations Code section 314.
2. Issues and Standards of Review
Defendant argues that, notwithstanding the plain language of Corporations Code section 314, the HOA minutes were hearsay and, therefore, inadmissible to prove any of the facts recited therein. She also argues that the statute requires some showing of trustworthiness and that the minutes the court admitted in this case were inherently untrustworthy and were inadmissible for that reason, as well.
The preliminary question we must decide is what principles of law apply to the evidence in question. That is a question of law subject to our independent review. (People v. Louis (1986) 42 Cal.3d 969, 985.) Indeed, it is always our job to decide the applicable rule of law. (Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1223-1224 (conc. opn. of Rushing, P.J.).) Absent any indication to the contrary, we presume that the trial court applied the correct legal standard (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443) and that its ultimate ruling incorporates all the factual findings required for admissibility (Evid. Code, § 402, subd. (c)). In that case, the courts ruling on the admissibility of the evidence is reviewed for abuse of discretion. (Cf. People v. Martinez (2000) 22 Cal.4th 106, 119-120 [applying abuse of discretion standard to review of Evid. Code, § 1280 trustworthiness determination].)
3. Analysis
Relying upon Filipino Federation of America v. Repollo (1961) 191 Cal.App.2d 89, 93 (Filipino Federation), defendant first argues that all of the facts recorded in the minutes were hearsay because oral testimony of the same facts would not be admissible at trial. Filipino Federation does not support defendants argument. Filipino Federation recognized that Corporations Code section 314 (then section 832 of the Corporations Code) was analogous to the then-current official records exception to the hearsay rule, former Code of Civil Procedure sections 1920 and 1926. The court reasoned that, like its analogous provisions in the Code of Civil Procedure, former section 832 of the Corporations Code "creates an exception to the hearsay rule to the extent that certified minutes of a corporation are admissible to show the action taken by the corporation, or what transpired at the meeting [citations], the statute does not change the rule of competency or relevancy with respect to recorded facts which are hearsay." (Filipino Federation, supra, at p. 92.) Rather, the section merely provides a method of proof of an admissible act, condition or event; it does not make the record admissible when oral testimony of the recorded facts would be inadmissible. (Id. at p. 93.) Accordingly, Filipino Federation held that the statement in the minutes, which was that the defendant had asked for a $1,500 loan, was inadmissible to prove that the defendant had asked for a $1,500 loan. (Ibid.)
Filipino Federation did not hold that the minutes were inadmissible as evidence of the act of the federation (the occurrence of a $1,500 transaction), which is what defendant would have us do here. To the contrary, the court accepted the notion that the statute made the minutes admissible for that purpose. (Filipino Federation, supra, 191 Cal.App.2d at p. 92.) Since the trial court in this case instructed the jury that the statements reflected in the minutes were not admitted for their truth, the particular hearsay problem confronted by Filipino Federation is not present here.
To the extent the argument is that the minutes were inadmissible to prove the acts of the HOA, such as the election of officers, it goes too far. One of the purposes of corporate minutes is to show what actions were taken at the meeting. In many cases, there may be no other way to prove corporate action. Together with the records of corporate transactions, the minutes constitute the corporate "memory." (Hurwitz v. Gross (1907) 5 Cal.App. 614, 621.) If we were to hold that the minutes were inadmissible as evidence of the acts of the corporation, our decision would directly conflict with Corporations Code section 314, which explicitly provides that minutes are "prima facie evidence" of "the matters stated therein."
Defendants alternative argument is stronger. She maintains that even if, as a general matter, meeting minutes are admissible to show corporate action, these minutes are inherently untrustworthy and, therefore, do not qualify for exception from the hearsay rule. Trustworthiness is the common thread running through many of the exceptions to the hearsay rule, including the business and official records exceptions, both of which expressly condition admissibility upon a finding of trustworthiness. For example, Evidence Code section 1280 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness." According to the Law Revision Commissions comment to Evidence Code section 1280, the section does not require a witness to testify as to the identity of the record and its mode of preparation in every instance, so long as "the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness." (Cal. Law Revision Com. com., reprinted at 29B pt. 4 Wests Ann. Evid. Code (1995 ed.) foll. § 1280, p. 347.)
"Because the Legislature adopted [Evidence Code] section 1280 exactly as the Law Revision Commission proposed, these comments are persuasive evidence of the Legislatures intent. [Citation.] Indeed, because both the Senate and Assembly Committees on the Judiciary expressly stated that these comments `reflect[ed] [their] intent in approving section 1280, the comments `are declarative of the intent . . . of the legislators who . . . enacted it." (People v. Martinez, supra, 22 Cal.4th at p. 129.)
Although Corporations Code section 314 does not expressly require a finding of trustworthiness, we see no reason to treat corporate minutes differently than other types of documentary evidence. Indeed, the predecessor statutes to Evidence Code section 1280 were stated in language identical to that used in Corporations Code section 314. Former sections 1920 and 1926 of the Code of Civil Procedure stated that entries in public records or made by public officials were "prima facie evidence of the facts stated." Nevertheless, these sections were never permitted literal application. As the Law Revision Commission comment pointed out, "[T]he cases require[d] the same showing of trustworthiness in regard to an official record as is required under the business records exception." (Cal. Law Revision Com. com, 29B pt. 4 Wests Ann. Evid. Code foll. § 1280, supra, at p. 347.) The Attorney General concedes that the minutes were not admissible absent some evidence or circumstance indicating that they were trustworthy.
Indications of trustworthiness can take many forms. Evidence Code section 1271, subdivision (d) contains the familiar business records requirements that the records have been made in the regular course of a business, at or near the time of the act, condition, or event, and that "the sources of information and method and time of preparation were such as to indicate its trustworthiness." The guarantee of trustworthiness in the case of business records "lies in the habit or practice of accurate and systematic bookkeeping by trained persons." (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 226, p. 943.) In the case of official records, an additional circumstance indicating trustworthiness is the presumption of proper performance of an official duty by a public officer. (Evid. Code, §§ 1280, 664; see also Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 79; 1 Witkin, Cal. Evidence, supra, § 244, p. 962.)
Corporate minutes, like business records and official records, can be shown as trustworthy by evidence of the routine preparation and approval of the minutes at or near the time of the meeting by persons who understand the corporations record keeping requirements. There are, undoubtedly, many other ways to show such documents to be trustworthy. All that is needed are some facts or circumstances that would allow the court to find that the minutes reliably reflected the actions taken at the meeting.
In the present case, the trial court made no explicit finding of trustworthiness. Even though we indulge all reasonable inferences in support of the trial courts ruling (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718), there is no evidence from which to infer that the minutes submitted were generally trustworthy. There was no evidence that they were routinely prepared by persons with the duty to prepare them. There was no evidence that they were prepared at or near the time of the meeting, or promptly reviewed and approved thereafter. If anything, the evidence tended to show there was no system or routine for preparing meeting minutes. Furthermore, the homeowners who managed the HOA were not public officials and were not, as far as the record reveals, trained in corporate formalities or the management of a homeowners association.
What evidence there was tends to undermine our confidence in the records. There were two sets of conflicting minutes for the March 20, 2004 meeting. Adamss signature on Churchwards version was dated June 11, 2005, over a year after the meeting had taken place. Both Adams and Gage admitted that they did not know what the law required of them or of the HOA. Adams even admitted having never read the HOA bylaws or the covenants, conditions, and restrictions pertaining to the townhome complex. Although neither Adams nor Gage was involved at the time of the 2003 meetings, there is nothing in the record to suggest that their predecessors were any better informed than they were.
The lack of any evidence to support a finding that the HOA minutes were generally trustworthy is fatal to the admissibility of the 2003 minutes because there was no other evidence pertaining to the preparation of these particular minutes. Gage certified the copy of the March 22, 2003 minutes as a true copy of the minutes in his possession, but he did not know how they had come into his possession or who had prepared them. We do not know whether they were prepared at or near the time of the meeting nor when they were reviewed by Owens, Ginsburg, and Churchward, whose undated signatures appear at the bottom. The Attorney Generals only argument is that Churchwards signature on both the 2003 minutes and the minutes from 2004 and 2005 show that the 2003 minutes were trustworthy. The Attorney General does not explain the connection nor is the connection evident to us. Absent any fact or circumstance to show that the March 22, 2003 document was a trustworthy reflection of the HOA acts reflected therein, the trial court abused its discretion in finding it admissible.
The August 9, 2003 minutes do not contain evidence of any act of the HOA relevant to either count 2 or count 3. Accordingly, we need not analyze their trustworthiness.
The error is necessarily prejudicial because the March 22, 2003 minutes were the only evidence to support the element of falsity necessary for conviction of count 2, which pertained to the October 20, 2003 filing. The Attorney General disagrees, pointing to the letter defendant sent to Ginsburg in which she wrote, "[Y]ou stated that you are now the treasurer and secretary, as well as the president . . ." The letter, allegedly sent in November 2003, does not tend to show that defendant knew in October 2003 that she was not the secretary. If anything, the statement casts further doubt upon the trustworthiness of the 2003 minutes, which show Owens as the secretary, not Ginsburg. Since there is no other evidence of who held the offices of secretary and chief financial officer on October 20, 2003, the error was not harmless; defendants conviction of count 2 must be reversed.
We reach a different conclusion with respect to the June 11, 2005 minutes, which showed that defendant was not elected to any office and, therefore, could not have been secretary or chief financial officer when she filed the second statement of information on September 19, 2005. There is sufficient independent evidence to support a finding that these minutes were trustworthy. Gage testified that he had attended the meeting, prepared the minutes at the close of the meeting, and then immediately submitted them to the other attendees for their signatures. Adams testified that he was present at the June 11, 2005 meeting and signed the minutes after reviewing them and finding them to be accurate.
Defendant argues that the June 11, 2005 meeting was held under suspicious circumstances because it was called after Adams and Gage had accused her of the theft. But the fact that Adams and Gage were upset with defendant does not bear upon the question whether the minutes could be trusted as accurately reflecting the actions taken at the meeting. Since there were facts and circumstances relating to the 2005 minutes upon which to base a conclusion that the minutes could be trusted as accurate, defendant has failed to show that the trial court abused its discretion in admitting them.
B. Prosecutorial Misconduct
Defendant next argues that the prosecutor committed prejudicial misconduct and that her attorney provided ineffective assistance in failing to object. To demonstrate constitutionally ineffective assistance of counsel, defendant must prove that counsels performance was unreasonable when measured by prevailing professional norms and that there is a reasonable probability that but for counsels acts or omissions, the result of the proceeding would have been more favorable to her. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
The conduct to which defendant refers relates to the prosecutors opening argument to the jury. The prosecutor had anticipated that defense counsel would attack the validity of the minutes by reference to the fact that Gage had certified them at the prosecutors direction. The prosecutor attempted to deflect the attack by telling the jury, "If I had done anything illegal or improper, the judge would not have let those . . . minutes into evidence for you to consider." But defense counsels questions to Gage about the circumstances of his certifying the minutes related only to the 2003 minutes. Since we have found these were improperly admitted, we need not consider whether counsel should have objected to this portion of the argument.
To the extent defendant maintains that the argument improperly bolstered the reliability of the 2005 minutes, there is no reasonable probability that counsels objection would have changed the result. Any reasonable jury would have reached the same verdict in the absence of the challenged remarks. (People v. Bolton (1979) 23 Cal.3d 208, 214.) Both Adams and Gage testified to the actions taken at the 2005 meeting, corroborating the recitation in the minutes that defendant had been relieved of her duties as secretary that day. Gage himself attended the meeting and prepared the minutes. Thus, even if the prosecutor told him to certify them, the jury was aware that he did so with personal knowledge of their contents.
C. Denying Defendants Motion to Discharge Retained Counsel
Defendant next argues that she was deprived of her right to counsel, as guaranteed by the Sixth Amendment to the United States Constitution, when the trial court denied her request to discharge her retained counsel. We conclude that, under the circumstances, the trial court did not err in refusing the request.
1. Background
At the pretrial conference on Thursday, October 11, 2007, the prosecutor informed the court of several pending settlement offers, which the prosecutor intended to leave open until "Monday morning when the jury is brought in." The offers all required a plea of guilty or no contest to misdemeanor violations of several different code sections. Defense counsel mentioned an additional offer, then stated, "I think the court should also, we should also recognize that theres a substantial danger of [defendant] being convicted, in my opinion, of the two nonalternative felonies, the [Penal Code section] 115 [charges], and I would advise [defendant] to seriously continue to consider this offer, and if she has questions to ask me, ask another lawyer, get a second, third, fourth opinion while we still can."
The court asked defendant if she understood what her lawyer had said and defendant, who is an attorney herself, responded, "Yes. And my concern was moral turpitude, some of the language in the statute, and apparently there is no movement on that issue." The court responded, "The suggestion maybe to get a second opinion may not be a bad suggestion, but Ill let you make that decision." Court was recessed until Monday, October 15, 2007, for jury selection.
On Monday, defendant asked the court for leave to discharge her retained counsel. The court reporter was unable to provide a transcript of the proceedings that day and, therefore we ordered the trial court to prepare a settled statement, which we have made part of the record on appeal. In pertinent part, the statement is as follows:
The settled statement was prepared in compliance with this courts order of December 9, 2008, and its accuracy and inclusion in the record are not questioned in this appeal.
"A request by the defendant to discharge her retained counsel was held outside of the presence of the jury. At the beginning of the hearing, the defendant indicated that she was making the request because of ineffective assistance of counsel. Thereupon the court excused the prosecutor and ordered that the hearing be a closed hearing . . . . "The defendant orally stated her reasons for wishing to discharge her attorney. They were principally that the attorney had advised the defendant to accept the prosecutors offer to settle the case by pleading `no contest to a misdemeanor in exchange for the court sentencing her to two years court probation i.e., informal probation, with no custody time. When she would not accept that settlement, she said that her attorney was exasperated with her and that she feared that he was not prepared to go to trial and would not fulfill his professional responsibilities to use his best efforts to advocate her case during trial. In the event that the request were [sic] granted, the defendant said that she would seek a continuance in order to retain new counsel or ask the court to appoint counsel to represent her. "The defense attorney responded that he had recommended that the defendant accept the prosecutors settlement offer, but upon her failure to do so, he was prepared, willing, and intended to represent his clients interests in trial to the best of his ability. "In view of the fact (1) that the trial had begun and was in the second day of jury selection; (2) that discharge of defendants attorney would necessitate a delay of the trial, and (3) that the grounds for the request (i.e., ineffective assistance of counsel) appeared not to be genuine and unlikely to occur, the court found that granting the request would result in a disruption of the orderly administration of justice and was, therefore, untimely. Consequently, the court denied the defendants request to discharge her attorney."
2. Analysis
A criminal defendant has the right to discharge retained counsel with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983-984.) However, "[a] nonindigent defendants right to discharge his retained counsel . . . is not absolute. The trial court, in its discretion, may 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]. As the court stated in Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613, the `fair opportunity to secure counsel of choice provided by the Sixth Amendment `is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time."" (Ibid.) Thus, a "defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial." (People v. Blake (1980) 105 Cal.App.3d 619, 623-624.)
Granting a continuance for the purpose of retaining private counsel is within the sound discretion of the trial court. No mechanical test is employed; each case is decided on its own facts. The burden is on the defendant to show that the trial court abused its discretion. (People v. Blake, supra, 105 Cal.App.3d at p. 624.) In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, placing particular focus upon the reasons presented to the trial judge at the time the request was denied. (People v. Courts (1985) 37 Cal.3d 784, 791 (Courts).)
Defendant cites Courts, supra, 37 Cal.3d 784, as support for her argument that the trial court abused its discretion in denying her day-of-trial motion to replace retained counsel. Courts is distinguishable. In Courts, trial was scheduled for October 26. In September, the defendant, then represented by the public defender, called a private attorney to discuss retaining him. On several occasions prior to the trial date the defendant attempted to obtain a continuance to hire the attorney, whom he had identified but not yet formally retained. (Id. at pp. 787-789.) In concluding that the trial court abused its discretion in denying the defendants requests, the Supreme Court emphasized that the defendant had "engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date." (Id. at p. 791.) Significantly, the court inserted a footnote that contrasted the defendants motion with "the eve-of-trial, day-of-trial, and second-day-of-trial requests" made and denied in several specific cases. "In those cases, the Courts of Appeal 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.) Another footnote contrasted the defendants motion with "cases which have upheld the denial of a continuance on the ground that participation by a particular private attorney was still quite speculative at the time the motion for continuance was made." (Id. at p. 791, fn. 3.)
Here, defendants request to discharge retained counsel was the type of case cited in the Courts footnotes. Defendant made her motion after trial had begun and she did so with no idea of who might replace him. The lateness of her request, the uncertainty of actually retaining counsel, and the need for orderly and expeditious administration of justice support the trial courts exercise of discretion in denying the request. (Cf. People v. Turner (1992) 7 Cal.App.4th 913, 919.)
Defendant argues that she had a good faith reason for wanting to discharge her retained attorney. She had lost confidence in her attorney because he had urged her to accept the prosecutions settlement offer and had become frustrated with her refusal to consider it. The problem is much like that described in People v. Keshishian (2008) 162 Cal.App.4th 425, 429, where the appellate court upheld the trial courts rejection of the defendants last minute attempt to discharge counsel: "Appellant asked for and was given an opportunity to address the court concerning his desire to discharge counsel and his reasons for doing so. He stated only that he had `lost confidence in his attorneys. This request was made on the day set for trial after the case had been pending for two and a half years. An indefinite continuance would have been necessary, as appellant had neither identified nor retained new counsel. Witnesses whose appearances had already been scheduled would have been further inconvenienced by an indefinite delay. `"The right to counsel cannot mean that a defendant may continually delay his day of judgment by discharging prior counsel," and the court is within its discretion to deny a last-minute motion for continuance to secure new counsel. [Citations.] That appellant had inexplicably `lost confidence in his experienced and fully prepared counsel did not constitute good cause for granting the continuance requested, nor justify the disruption to the judicial process that would have ensued."
In the present case, the trial court implicitly found that the difference of opinion pertaining to whether or not defendant should accept the prosecutions offer of settlement was not so egregious as to infect counsels ability to represent defendant or his preparedness for trial. The court balanced defendants expressed concerns with the courts own findings and concluded that the motion should be denied. There was no abuse of discretion.
Defendant argues that the trial court incorrectly applied a Marsden type standard in rejecting her request. Defendant is correct that a Marsden hearing, at which the court determines whether counsel is providing ineffective assistance or whether the attorney client relationship has irremediably deteriorated, is not an appropriate vehicle for considering a defendants complaints against retained counsel. (People v. Hernandez (2006) 139 Cal.App.4th 101, 108.) The applicable test for retained counsel requires the trial court to balance the defendants interest in new counsel against the potential disruption flowing from the substitution. (People v. Keshishian, supra, 162 Cal.App.4th at p. 429.) Here, the court rejected defendants request for three stated reasons, untimeliness, the delay that would result if the request were granted, and the courts finding that the basis for the request, which was defendants claim of ineffective assistance, was "not genuine." Thus, the court used the proper standard and did not reject the motion based solely upon its assessment of counsels effectiveness.
People v. Marsden (1970) 2 Cal.3d 118.
D. The Penal Fine
The trial court made a general order of restitution and also ordered defendant to "pay a fine for the offenses that she has committed in the amount of $5,000 plus penalty assessments. And Im going to indicate that I will consider modification of the fine and reduction of the fine to [$]2,500 plus penalty assessments if the court receives proof that the Bank of America has been reimbursed for its loss of $3,500 in this case." Defendant argues that the courts offer to reduce the fine was, in effect, a restitution order, which, she says, is improper because she was acquitted of the theft. Because her attorney did not object to the fine, we reach the merits via her claim that counsel provided ineffective assistance.
As we have explained, to demonstrate constitutionally ineffective assistance of counsel, defendant must first prove that counsels performance was unreasonable when measured by prevailing professional norms. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.) Defendants argument fails because counsels failure to object to the fine was not objectively unreasonable. The fine was not a restitution fine. The trial court made that quite clear when it explained, "[T]he Bank of America matter is not a restitution order, but the court is aware that there are monies held in trust, and so far as the court could ascertain, its only Bank of America who is out the money at this point. So if that matter is cleared up, then well go forward."
The $5,000 was clearly a penal fine, imposed as punishment for the crimes of which defendant was convicted. "As with other sentencing decisions, the trial court has wide discretion in deciding the amount of the fine." (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798.) The trial courts explanation demonstrates that the courts concern was that the money that Bank of America had deposited into the HOA account be returned to the bank. The courts willingness to reduce the fine upon proof that the bank was made whole does not change the fine into an order of restitution.
IV. DISCUSSION — H034299
Relying upon the general order of restitution imposed at sentencing, the trial court entered a postjudgment "order of restitution to the homeowners association in the amount of $3,625," the amount of defendants allegedly unauthorized withdrawal from the HOA checking account. It is undisputed that the HOA did not suffer this loss. The Attorney General argues, however, that Bank of America is entitled to restitution. Bank of America had allowed defendant to withdraw the funds when she was not authorized to make the withdrawal and, therefore, deposited another $3,625 into the HOA account to remedy its error. Thus, according to the Attorney General, Bank of America lost $3,625 as a result of defendants misdeeds. Defendant maintains that an order of restitution is unrelated to the false instrument charge of which she was convicted and, in any event, that the money she allegedly took is still in one of the HOA accounts.
To the extent defendant argues that acquittal of the grand theft conviction precludes a restitution order, she is incorrect. It is well settled that a court may impose a victim restitution order as a condition of probation regardless of whether or not the defendant has been convicted of the underlying crime. (See, e.g., People v. Lent (1975) 15 Cal.3d 481 (Lent).) The rule is based upon the notion "that the granting of probation is not a right but a privilege, and that if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense he is free to refuse probation." (People v. Miller (1967) 256 Cal.App.2d 348, 356.) Because a defendant has no right to probation, the trial court may impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the Lent criteria, which are that the condition must be reasonably related to the crime of which defendant was convicted or to future criminality. (See Lent, supra, at p. 486.)
Although the jury acquitted defendant of the theft charge, it did not do so for lack of evidence that defendant had made the unauthorized withdrawal. Defendants own theory at trial did not deny that she had taken the money out of the HOA account at Bank of America when she was not officially authorized to access those funds. Rather, defendant maintained simply that the money did not belong to Gage, from whom she was alleged to have stolen it, and, in any event, that she was a de facto HOA officer and had acted as such in putting the money into another HOA account. But even accepting the defense theory, as the jury apparently did, it remained undisputed that defendant had withdrawn the money by falsely representing that she had authority to access the bank account. The crime of which she was convicted involved her falsely representing that she was an officer of the HOA. Since it was defendants false representations that gave rise to the apparent need for restitution and to the crime of which she was convicted, an order of restitution would be related to her crime and to the potential she would commit similar crimes in the future. Whether restitution to Bank of America is appropriate under the circumstances is a factual question we leave to the trial court on remand.
V. DISPOSITION
Case No. H032961: The judgment is reversed. The matter is remanded to the trial court to resentence defendant on count 3 only.
Case No. H034299: The order of the trial court requiring defendant to pay restitution of $3,625 to the homeowners association is reversed. The matter is remanded to the trial court to reconsider the question of victim restitution in light of the opinions expressed herein.
WE CONCUR:
Rushing, P.J.
Elia, J.