Opinion
F074308
02-28-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD WILLIAM JAMIESON, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13904799)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Richard William Jamieson was convicted by a jury of continuous sexual abuse arising out of conduct with his son. On appeal, defendant challenges the admission of propensity evidence under Evidence Code section 1108, arguing it was more prejudicial than probative, and its late disclosure violated his rights to due process, equal protection, and a fair trial. He also argues the trial court reversibly erred in excluding evidence of the victim's alleged past theft. He further contends his original trial counsel and his substitute counsel provided ineffective assistance during the sentencing proceedings, and the trial court reversibly erred by denying him the right to retained counsel of his choice. Finally, he asserts he did not make an unequivocal request to represent himself during sentencing; thus, his case should be remanded for resentencing.
Undesignated statutory references are to the Evidence Code.
For the reasons set forth below, we vacate defendant's sentence and remand for a resentencing hearing and further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged and convicted of continuous sexual abuse of a child after his adult son (Son) reported to police incidents of sexual assault that had occurred when Son was between the ages of seven and 14. Before trial, the trial court held admissible evidence of uncharged offenses under section 1108 related to incidents when defendant would "spoon" Son on the couch.
Guilt phase proceedings
Son, who was 33 years old at the time of trial, testified regarding the incidents of sexual abuse. He stated when he was a child, once or twice a week, defendant would "spoon" him—lie close behind Son with defendant's chest pressed against Son's back— on the couch while they were covered with a blanket. Defendant would have clothes on but would have an erection and rub it against Son's buttocks and between Son's legs. Thereafter, the sexual activity increased.
Son testified the next incident he recalled was giving and receiving oral sex to and from defendant when he was eight. He did not have a distinct memory of the first time it happened, but he testified "it happened a lot." The last time it occurred, Son was "[p]robably 14." Son testified defendant also sodomized him when he was 10 years old and continued to initiate that activity over a period of years. Defendant asked Son to perform anal sex on defendant and Son recalled one incident during which he complied. One time when Son was 10 or 11, his mother walked in when defendant was sodomizing Son in the shower. Thereafter, Son's mother "called a meeting." The sexual acts resumed six months after the meeting.
Son recalled an incident when he was 14 years old when he heard his mother screaming for help and calling his name. He ran to her room where he found defendant hitting her. Son pulled defendant off his mother and began punching him in the face and stomach. The sexual acts stopped after that incident.
Son did not tell anyone about the abuse until he became concerned about defendant's interactions with Son's nephew, K., defendant's grandson. Son never saw defendant do anything inappropriate to K., but K. would refuse to go to defendant. Son recalled an incident when defendant repeatedly asked K. to come sit in his lap, and K. refused to go to him. He recalled another incident when defendant took K. to the bathroom and Son worried it was taking too long. Son became concerned and spoke to his mother about what defendant had done to him. According to Son, his mother acted like she had been unaware of the abuse and began crying. Son demanded that his mother tell K.'s mother what defendant had done to Son. He later learned from his girlfriend, Ashley, that his mother was not going to say anything. That day, Son decided he had to tell K.'s mother what defendant had done to him.
Son went to his parents' house with Ashley and confronted defendant. Son's mother was present, and his grandfather was in a different room. Son asked defendant several times, "Did you sexually abuse me?" According to Son, his father eventually responded, "'It was a long time ago.' 'Yes, it happened. It was a long time ago.'" Defendant also admitted to having anal sex with Son and said, "'Yes. It was a long time ago. What do you want me to do about it now?'" Son asked Ashley to call K.'s mother. K.'s mother eventually arrived with her husband Jeff, and Son again confronted defendant. Defendant again admitted assaulting Son, stating: "'Yes, it was a long time ago.'" He eventually left the house and Son did not see him again that night. A week after the confrontation, Son received a letter from defendant that said:
"'I guess maybe this has been a life-changing wake-up call for me.... As sorry as I am ... that I can't change the past, somehow maybe we can pick up what few pieces remain and find a mutual starting point towards healing the wounds.... The way you feel about me now is understandable but ... please don't take it out on your mom by shutting her out of your life. I think she is just as much if not more hurt by this than by when she found out what went on with me and you. ... We had a talk with [clergy] up at the church and the post office has an employee assistance program in which I will be seeing a counselor/therapist. I will be always your dad and I do love you. Let's try to be in contact again one of these days. [¶] Love, Dad.[¶] PS: I am apologizing for the way I have acted.'"
The People introduced the handwritten letter into evidence. Approximately a week or two after receiving the letter, Son called the police.
K.'s mother testified she never personally saw anything inappropriate happen between Son and defendant. She recalled the night Ashley called her and her husband to come to her parents' house. When she and Jeff entered the house, she remembered it being "[v]ery chaotic" and "[a]nger flying around." She recalled her brother talking about defendant molesting him when he was a child. She did not recall how defendant responded in that moment, but testified she spoke to defendant later when they were alone and asked him if he had molested Son and defendant said, "'it was just a stupid thing I did when I was young.'" She told him he could never see her kids again.
Jeff testified he did not recall defendant admitting to the allegations that night when the whole family was present and Son and Ashley were confronting him. However, following that confrontation, when Ashley and Son went outside, Jeff spoke to defendant one-on-one and Jeff asked him if the allegations were true. Defendant responded "'it was a long time ago'" and that he wished "'him and [Son] would have talked about it before it blew up like this.'"
Ashley testified when she and Son started dating and before they became exclusive, she told Son she was concerned about the disrespectful way he spoke to his mother and defendant. Son became quiet and then confided in her that defendant had molested him. Ashley recalled Son being concerned about defendant's interactions with K. and, after two incidents, Son decided to talk to his sister about defendant. Ashley testified about the day Son confronted defendant. She stated defendant admitted abusing Son and said it "was a long time ago."
Defendant's wife denied hearing defendant admit the allegations of sexual abuse at any time. She testified Son was not truthful. She also denied ever seeing defendant lying on the couch with any of the children and denied walking in on defendant and Son in the shower. She said defendant was never physical with her and she never saw defendant have a physical fight with Son.
Defendant testified on his own behalf and denied the allegations of abuse. He also denied admitting the allegations were true at any time. He further denied physically abusing his wife at any time.
On April 19, 2016, the jury convicted defendant of continuous sexual abuse of his son and found true the allegation that defendant had substantial sexual conduct with a victim under the age of 14 years. He was sentenced to the aggravated term of 16 years in prison.
DISCUSSION
I. Admission of Testimony Pursuant to Section 1108
In three related issues, defendant challenges the court's admission of certain propensity evidence pursuant to section 1108.
A. Procedural History
During his opening statement, defense counsel stated Son would testify that
"he and his friend were with [defendant] ... at a jet ski symposium at Anaheim back in '97. He named somebody by ... name. And says that he walked in on [defendant] masturbating to pornography and [defendant] invited both these 14-year-old boys to come join him. This is after his alleged confrontation with his father. And you will hear that there is no one coming to fill in that void of his statement. So all you have here is [Son] telling you what other people observed and said, but they are not coming to say that."The prosecutor did not reference this incident during his opening statement, and Son did not discuss it when he initially testified.
Midtrial, the prosecutor notified the court and defense counsel his investigator found M.S., the individual who went on the trip with defendant and Son in 1997 during which they all shared a hotel room. The prosecutor stated he intended to offer M.S.'s testimony under section 1108. In arguing for its admissibility, the prosecutor noted defense counsel had referred to the incident in his opening statement and had stated the incident would not be corroborated.
Defense counsel argued the prosecutor's pretrial report did not include M.S.'s name, but rather referred to the witness by the name Wyatt. Defense counsel explained "after the opening statement [he] was informed by the District Attorney at that point that [Son] represented to him that the person was [M.S.], ... a completely different name and individual." Defense counsel asserted he could not have discovered M.S.'s name and was "going to need a little bit of time to do [his] background investigation on this individual because he is not a party nor has he ever been in the police report or on a witness list." The court ruled M.S.'s testimony was admissible evidence under section 1108, noting "[i]t was referenced by defense counsel in front of the jury, the statement that there would be no one who could testify to that act."
The next day, M.S. testified he met Son in seventh grade and they "hung out" for a brief period of time. He recalled going to Los Angeles with defendant and Son when they were in middle school. Before M.S. continued, the court instructed the jury it should only consider such evidence "if the People prove by a preponderance of the evidence that the defendant in fact committed the uncharged offense" and if the jurors "decide that the defendant committed the uncharged offense, [they] may, but are not required, to conclude from that evidence that the defendant was disposed to or inclined to commit [the charged] sexual offenses." M.S. then testified that during the trip, he, Son, and defendant stayed at a hotel and he and Son went swimming at the hotel pool. When they returned to the hotel room, they found defendant watching pornography on the hotel television. M.S. sat on the other bed and Son went for a shower. Defendant then "laid back and dropped his drawers, pulled his pants off, to expose himself" and began to masturbate. Defendant "asked [M.S.] if [he] was excited, and if [he] had a hard on, and he asked if he could see it." M.S. was "[r]eally uncomfortable" and said, "Absolutely not. Stop it." After the incident, M.S. stopped associating with Son. At the time of trial, M.S. had not seen or talked to Son in at least 10 years.
Son, who was subject to recall, testified again after M.S. regarding the incident. He testified he had not seen or spoken to M.S. since high school but recalled going on a trip with him and defendant to a jet ski show in Anaheim when they were in junior high. During the trip, Son testified he and M.S. returned to the hotel room from the pool and found defendant masturbating while watching a pornographic film. Defendant told them they could "stay there and watch or join him."
Defendant denied ever meeting M.S. or taking him to a jet ski show. Officer Ramiro Garza testified he met with Son to investigate his allegations of sexual assault, and Son reported taking the overnight trip to Anaheim with defendant and an individual named Wyatt, not M.S.
Defense counsel then argued Officer Garza's report was "inconsistent with any representation of a person by the name of [M.S.], and that was a surprise to the defense." Defense counsel further asserted:
"... That name was never provided prior to trial. I had no way of doing any investigation in regard to that witness. The first that I discovered the People had found a witness by that name was yesterday afternoon during the lunch hour. That didn't give me any opportunity to spend any time investigating that since we went right back into trial.
"When he was called this morning, I had no previous indication that he was going to be the next witness up so I couldn't put this on the record as timely as I could, but I did make the objection last night, or yesterday afternoon after court. Again, I want to reintroduce that objection, that this is a surprise, that it was—it is a very crucial piece of evidence, I believe, against my client, and I wasn't able to prepare for it appropriately and adequately."
The court asked counsel: "[W]hat steps if any did you take to find out who that was before mentioning that to the jury [in your opening statement?]" Defense counsel stated he looked for the name Wyatt on the witness list and had his investigator search for a connection between a Wyatt and Son's family but he did not find anyone. The court then asked defense counsel if he had asked the district attorney to identify the person who was the subject of the section 1108 evidence before referencing it in front of the jury in his opening statement. Following a back and forth with defense counsel during which defense counsel failed to give the court a "yes" or "no" response, the court called for a break and then stated on the record:
"Prior to this break the Court asked multiple times whether defense counsel had inquired of the District Attorney's Office for information relating to the identity of the person making the allegation that was the subject of the 1108 evidence this morning. The Court never got a direct answer to that. It is apparent to the Court that defense counsel never did so. That actually happened in this courtroom off the record when the People brought up the
fact that they were going to intend to find the person given what was stated by defense counsel in opening. At that exact point defense counsel mentioned the name Wiley [sic], and the People immediately were able to provide him with the actual name of the person that just testified this morning. It is apparent to the Court that the defense could have easily obtained that information, if they wished to do so, prior to mentioning those allegations to the jury in open court during opening statement. So the Court's previous rulings on these issues remain."Defense counsel again noted he disagreed with the court's order.
After the prosecution rested and the defense began presenting witnesses, defense counsel reiterated that he was unable to investigate M.S. because of the prosecutor's untimely disclosure of M.S.'s identity:
"[DEFENSE COUNSEL]: My recollection of the incident was, when I made my opening statement, I mentioned the trip down to Anaheim. At that time I [had] never been provided with a name of anyone other than Wyatt. After I made the opening statement, [the prosecutor] advised me that he had heard from [Son] that the person's name wasn't Wyatt, but it was [M.S.] And he advised me at that time that the People would be looking to try to subpoena that individual. [¶] That's the first I heard of [M.S.] It was after that opening statement. I did not attempt to discover [M.S.], nor make any attempt at that point, because that was the first that I had heard of it, and it was while we were in the process of the trial. [¶] Then, yesterday afternoon during the lunch hour, [the prosecutor] advised me that that individual had been found and had been interviewed and had been subpoenaed. That was the first I discovered the name of the individual. And he provided me with his name, his date of birth, phone number as well. It was a complete description of the individual. But I do not believe while in trial I had an adequate opportunity to investigate that individual, and his story, receiving it just 24 hours before he testified. [¶] That is my objection, that that witness was not discoverable because he wasn't identified until we were in the trial process."
Defendant confirmed he did follow up before trial with the district attorney's office regarding the identity of the person who went on the 1997 jet ski trip.
B. Standard of Review and Applicable Law
1. Evidence admitted under section 1108 is subject to the constraints of section 352
Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (§ 1101.) But the Legislature has created exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence (§ 1109). And the California Supreme Court has held that section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915.)
Section 1108 provides in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not inadmissible character evidence under section 1101 if such evidence is not inadmissible pursuant to section 352. (§ 1108.) Section 352 affords the trial court discretion to exclude such evidence if its probative value is "substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) "A challenge to admission of prior sexual misconduct under ... sections 1108 and 352 is reviewed under the deferential abuse of discretion standard and will be reversed 'only if the court's ruling was "arbitrary, whimsical, or capricious as a matter of law."' [Citation.]" (People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
2. Penal Code section 1054 requires timely disclosure of witness's names
When the prosecution seeks to present evidence of a defendant's commission of other acts of sexual offense, it is statutorily required to "disclose" that evidence to the defendant under Penal Code section 1054.7. (§ 1108, subd. (b).) Under Penal Code section 1054.1, the prosecuting attorney shall disclose to the defendant or to the defendant's attorney "[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged." (Pen. Code, § 1054.1, subd. (c).) The disclosure of such evidence must be made "at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (Pen. Code, § 1054.7.) "If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (Ibid.) The purpose of section 1108's disclosure requirement is to protect the defendant from unfair surprise and provide adequate time for preparation of a defense. (People v. Soto (1998) 64 Cal.App.4th 966, 980.)
C. Analysis
Defendant argues M.S.'s testimony should have been excluded as more prejudicial than probative under section 352 and because it was untimely under Penal Code section 1054. He also challenges the admission of evidence pursuant to section 1108 on due process and equal protection grounds.
1. The trial court did not abuse its discretion in admitting M.S.'s testimony under section 352
Defendant contends the prejudicial nature of M.S.'s testimony outweighed its probative value. He argues the "record shows no balancing test performed at all" under section 352 as required under section 1108.
But defendant did not object to the admission of M.S.'s testimony on the grounds its prejudicial effect outweighed its probative value. Thus, defendant waived his objection by failing to specifically object that M.S.'s testimony should have been excluded under section 352. (§ 353, subd. (a).)
Irrespective, "a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under ... section 352." (People v. Taylor (2001) 26 Cal.4th 1155, 1169; accord, People v. Williams (1997) 16 Cal.4th 153, 213 [rejecting argument trial court's comments were too short and conclusory to demonstrate balancing required by § 352, Supreme Court stated, "All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under ... section 352"].)
Although the court's final order regarding the admissibility of M.S.'s testimony did not expressly mention the weighing process required by section 352, the record reflects the court was aware of its duty to weigh the probative value of such evidence against its potential for prejudice. Before the trial began, the court ruled on the admissibility of evidence, pursuant to section 1108, that defendant would "spoon" Son on the couch when he was young. In its motion in limine briefing arguing for the admissibility of such evidence, the People noted propensity evidence under section 1108 is subject to the constraints of section 352. It argued there is a presumption toward admissibility and that the probative value of the referenced evidence outweighed any potential for prejudice. The court referred to the People's motion in limine briefing in discussing such evidence, and it ultimately held that evidence defendant spooned Son was admissible under section 1108 subject to precautionary instructions the court would provide to the jury. The court noted it intended to read the full jury instruction on the limitations of use of such 1108 evidence to avoid juror confusion.
And when the prosecutor sought admission of M.S.'s testimony, the court acknowledged the notice was untimely. The prosecutor explained his reason for the late notice—his investigator had just found M.S.—and offered to submit to a section 402 hearing. The court confirmed the substance of M.S.'s testimony was included in the reports that had previously been produced, though such reports referred to the witness as Wyatt. The court also confirmed the incident involving M.S. was raised for the first time by defense counsel in his opening statement in which he discussed the Anaheim trip. It further noted it had discussed the matter with the parties off the record the day before and concluded the witness, if found, could testify given the reasons it previously stated. Accordingly, the court held M.S.'s testimony was admissible under section 1108.
This record reflects the court understood its responsibilities under section 352 and it implicitly conducted a section 352 analysis when it considered M.S.'s testimony outside of the presence of the jury. (Accord, People v. Villatoro (2012) 54 Cal.4th 1152, 1168 ["'[W]e are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.'"].)
Regardless, any error in failing to conduct such an analysis was harmless. (People v. Padilla (1995) 11 Cal.4th 891, 925 ["assuming the trial court did not evaluate the evidence under ... section 352, had he done so he would have admitted it in any event" (italics omitted)]; see People v. Villatoro, supra, 54 Cal.4th at p. 1168.) M.S. testified to a distinct episode of sexual misconduct by defendant that M.S. experienced firsthand with Son when they were teenage boys. Son's testimony corroborated M.S.'s account of defendant masturbating in front of them. Such evidence was highly probative of defendant's propensity to commit sexual misconduct with young boys, and its value substantially outweighed its potential for prejudice.
2. Exclusion of M.S.'s testimony was not justified under Penal Code section 1054
We also disagree with defendant's contention the late disclosure of such evidence entitled him to exclusion of M.S.'s testimony. He contends the prejudice here was "'substantial and irremediable'" because the jury heard "defense counsel promise ... that no witness would appear, only to have defense counsel exposed as a sham when that witness did appear."
Penal Code section 1054.1 requires the prosecution to disclose specific information to the defense including, among other things, the names and addresses of witnesses that the prosecution intends to call at trial. (Id., subd. (a).) "To establish on appeal a violation of [Penal Code] section 1054.1, subdivision (a), in failing to disclose a witness, the record must affirmatively demonstrate that a specific witness or witnesses were known to and intended to be called by the prosecutor, but were undisclosed to the defense as required by the discovery chapter." (People v. Tillis (1998) 18 Cal.4th 284, 292.) Violation of this statute may result in the imposition of sanctions. (Pen. Code, § 1054.5.) However, "the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) "[T]he prejudice would necessarily have to be substantial and irremediable[, and] ... the consequence to the truth-finding process would have to be carefully balanced. It should not be lightly considered that the consequence of exclusion of significant evidence may so distort the truth-finding process as to undermine its reliability." (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757-1758.)
We cannot conclude the record before us affirmatively demonstrates that M.S. was known to and intended to be called by the prosecutor but was undisclosed. Rather, the record does not reflect the prosecution intended to offer M.S. until defense counsel referenced him in his opening. At that point, the prosecutor told defense counsel that Son advised him the witness's name was M.S. as opposed to Wyatt and that he was going to try to subpoena him. Nothing in the record suggests the prosecutor was aware of M.S.'s identity before that point.
The record before us also does not reveal substantial and irremediable prejudice resulted from the late disclosure. Defendant argues he was prejudiced because M.S.'s appearance at trial undermined his counsel's credibility given his statement in opening that the prosecution would be unable to produce this witness. However, defense counsel was permitted to argue in closing that M.S. had never been "named over the past years that this case has been percolating through the system." And the prosecutor even noted in his closing argument that M.S. was a "surprise witness" that "didn't make the witness list." Thus, the jury was on notice that M.S. was previously undisclosed. Additionally, here, defense counsel was aware of the substantive allegations regarding the 1997 jet ski trip that were disclosed in the prosecutor's report before trial, though the report had referred to the witness as Wyatt. In fact, defense counsel referenced the incident during his opening statement even though he had not contacted the witness and the prosecutor had not referred to the incident in his opening. Also, while defense counsel stated he needed "a little bit of time to do [his] background investigation" after the prosecutor reported he had located M.S. and intended to present him, defense counsel did not formally request a continuance. (E.g., People v. Medina (1995) 11 Cal.4th 694, 771 ["Ordinarily, unless the untimely notice adversely affected earlier proceedings, the failure to seek a continuance precludes any showing of prejudice attributable to delay in giving notice of aggravating evidence"].) For all these reasons, we cannot conclude any resulting prejudice was substantial and irremediable or that the trial court erred in permitting M.S. to testify.
3. The admission of propensity evidence under section 1108 did not violate due process or equal protection
For the first time on appeal, defendant argues the admission of evidence pursuant to section 1108 violated his constitutional rights to due process and equal protection.
Even assuming, arguendo, this issue was not forfeited by the failure to object at trial, defendant acknowledges our Supreme Court has held section 1108 is constitutional on its face; it has withstood both due process and equal protection challenges. (See People v. Falsetta, supra, 21 Cal.4th at pp. 907, 916-922 [no due process violation]; People v. Fitch (1997) 55 Cal.App.4th 172, 182-184 [no equal protection violation]; see also People v. Manning (2008) 165 Cal.App.4th 870, 877.) The California Supreme Court has specifically "held that because of the protections written into ... section 1108, there [is] no undue unfairness in the statute's limited exception to the historical rule against the use of propensity evidence." (People v. Manning, supra, at p. 878.) As defendant recognizes, we are bound to follow the decisions of our Supreme Court and, thus, reject his constitutional challenge to section 1108. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Additionally, "[t]o show a violation of due process, a defendant must show that the statute, as applied, offended a principle of justice so rooted in the traditions and consciousness of the country that it is considered fundamental. [Citation.]" (People v. Manning, supra, 165 Cal.App.4th at p. 877.) To the extent defendant is asserting an as-applied challenge, he has not established section 1108 was unconstitutional as applied to him under the particular facts of this case such that it rendered his trial fundamentally unfair. Accordingly, we reject defendant's challenges to the constitutionality of section 1108.
II. Exclusion of Evidence of Victim's Alleged Prior Theft
Defendant next argues the trial court abused its discretion by not allowing a defense witness to testify Son stole property from him.
A. Procedural History
Before trial, defense counsel stated he intended to call attorney Tim Cox to testify Son had stolen property from him. He asserted such testimony was relevant and admissible to impeach Son's credibility. The record does not reveal when the alleged theft occurred, or the value of the property alleged to have been stolen. The court excluded such testimony because it was "merely an allegation, not a conviction" and concluded it was inadmissible under People v. Castro (1985) 38 Cal.3d 301.
B. Standard of Review
We review for an abuse of discretion a trial court's decision to admit or exclude evidence of a witness's prior offenses for impeachment. (People v. Clark (2011) 52 Cal.4th 856, 931-932.) "[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad." (People v. Wheeler (1992) 4 Cal.4th 284, 296.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (People v. Clark, supra, at p. 932.)
We evaluate alleged error in the exclusion of impeachment evidence under the prejudice standard from People v. Watson (1956) 46 Cal.2d 818 and determine whether, after a review of the entire record, "it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (Id. at p. 836; see People v. Marks (2003) 31 Cal.4th 197, 226-227; People v. Ghebretensae (2013) 222 Cal.App.4th 741, 750.)
C. Applicable Law
Although all crimes of moral turpitude are relevant for purposes of impeachment, it has been held that a crime involving dishonesty is more probative of credibility than a crime involving violence. (People v. Burns (1987) 189 Cal.App.3d 734, 738.) Theft is a crime of moral turpitude involving dishonesty. (E.g., People v. Cudjo (1993) 6 Cal.4th 585, 626 ["Grand theft necessarily involves both moral turpitude and dishonesty"]; People v. Waldecker (1987) 195 Cal.App.3d 1152, 1156 [petty theft is a crime of moral turpitude].)
But, "[i]n general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony." (People v. Wheeler, supra, 4 Cal.4th at p. 296.) "Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present." (Ibid.) "Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id. at pp. 296-297.)
D. Analysis
On appeal, defendant argues the trial court abused its discretion in excluding this impeachment evidence. He contends the trial court's exclusion of such evidence violated his constitutional right to present a defense.
Here the trial court had before it an allegation of theft rather than a conviction. The trial court's citation to People v. Castro reflects its awareness that a section 352 analysis was required in considering the admissibility of evidence of Son's alleged past misconduct as impeachment evidence. (See People v. Castro, supra, 38 Cal.3d at p. 312 [holding, in part, Prop. 8 calls for admission of relevant evidence but does not strip trial court of discretion in ruling on admissibility of evidence under § 352]; People v. Villatoro, supra, 54 Cal.4th at p. 1168 [concluding citation to "key case" in that area of law considered in light of record was sufficient basis to permit reviewing court to infer trial court had conducted implicit weighing under § 352].) And, while a defendant has a right to present a complete defense at trial, state evidentiary rules do not ordinarily infringe upon this right. (See Nevada v. Jackson (2013) 569 U.S. 505, 508.)
On this record, we cannot conclude the trial court abused its broad discretion in excluding evidence of Son's alleged theft of property. In evaluating the admissibility of Cox's testimony, the court reasonably could have concluded the danger of prejudice outweighed the evidence's probative value. The admission of such testimony could have resulted in a minitrial within the trial regarding whether Son committed the theft, consuming an undue amount of time and creating a substantial danger of confusing the issues.
Moreover, even if we were to conclude the court erred in excluding this evidence, defendant was not prejudiced by the court's ruling. Here, the evidence against defendant was strong. Son, Ashley, K's mother, and Jeff all testified defendant admitted the sexual assault allegations to them. The jury also had before it defendant's handwritten letter in which he apologized to Son for his actions. Also, throughout trial, defense counsel attempted to impeach Son's credibility with his prior inconsistent statements and conflicting statements by other witnesses. Given this strong evidence inculpating defendant and defense counsel's other efforts to impeach Son, we cannot conclude there was a reasonable probability the result of the trial would have been different if the jury had been presented with Cox's allegation that Son had stolen property from him.
III. Structural Error in Denying Defendant Right to Aid of Retained Counsel
Defendant argues the court's failure to continue the sentencing hearing to permit his retained counsel of choice to appear resulted in structural error, requiring reversal.
Initial sentencing hearing
Following the jury verdict on April 19, 2016, the court set the sentencing hearing for Friday, May 27, 2016. For reasons not apparent from the record, the first sentencing hearing was ultimately held on June 24, 2016. At that hearing, defendant's trial counsel, Charles Magill, reported he was not prepared to proceed with sentencing because defendant advised him he was in the process of retaining a private attorney to serve as substitute counsel and to file a motion for new trial. Magill explained new counsel was requesting the matter be reset 60 days later. The court reset the sentencing hearing to Friday, July 29, 2016, "to make sure that there [was] an actual attorney coming in." The court noted, "If there is another attorney coming in, that attorney would need to be here on that date."
Second sentencing hearing
Defendant's chosen substitute counsel, Sara Caplan, did not appear at the sentencing hearing on July 29, 2016. At that hearing, Magill stated defendant had financially retained Caplan as his attorney about three weeks earlier, after the last continuance. Magill thought Caplan had filed the request for substitution she had signed weeks before. The court responded it "made it very clear that if someone was substituting in, that they needed to be here today" and it had not received "anything showing there ha[d] been a new attorney substituted in" nor a motion to continue sentencing or a "showing of good cause why a motion wasn't filed."
Magill explained Caplan "had hip surgery about two weeks ago and is still immobile due to the surgery, and she advised [him] that under doctor's orders, she can't travel." He further noted he had a conflict because defendant had essentially fired him and hired new counsel for sentencing. The court disagreed there was a conflict between Magill and defendant, noting Magill was "currently still retained counsel." The court noted it gave defendant "a significant period of time for the express purpose of substituting in new counsel with the specific requirement that that counsel be present and either prepared to go forward with a filed motion, or something to document why there was good cause for setting a further continuance" but "[n]one of that has occurred" and it had "no information about when, if ever, it will occur."
Defendant then stated he did not want Magill to represent him and instead he wished to proceed in propria persona, but he was not prepared to proceed that day. After the court questioned him, defendant clarified his request to represent himself was an attempt to get more time to permit his retained attorney to appear. The court responded: "That's not a proper reason to go pro per."
Magill stated substitute counsel Caplan would be well enough to travel by the following Wednesday. Magill suspected Caplan had not yet filed anything, including a motion for new trial, because she was still recovering from her hip surgery.
The court noted it was "in a little bit of an awkward position because, quite frankly, there [was] a good reason for proceeding with sentencing" but it did not "want to create appellate issues that [it didn't] have to create." It then reset the hearing for the following Monday, noting "[t]hat [substitute] attorney, or someone other than Mr. Magill on that attorney's behalf, needs to be here. There will be a sentencing hearing on Monday. I can't make it any clearer than that. And I can appreciate she might have had surgery, but that is not going to be a reason for this to get stretched out into some unknown date in the future."
Third sentencing hearing
On Monday, August 1, 2016, Pahoua Lor made a courtesy appearance on behalf of Caplan, defendant's retained substitute attorney. The court stated it received a substitution after the hearing the previous Friday that was signed by defendant and all counsel, but it had no proof of service and was on an incorrect form. The court noted, however, it had not received a Penal Code section 1050 request for a continuance since the original June 24, 2016, sentencing date, nor was it aware of any facts establishing good cause for failing to file the motion under Penal Code section 1050, subdivision (c); thus, it believed Penal Code section 1050, subdivision (d) required it to deny any motion for further continuance. Defendant's trial counsel, Magill, then stated:
"My recollection of the circumstances were before the last sentencing, I received word through a third party that [defendant] did not wish to have me represent him, that he was dissatisfied with the result of the trial. And he wanted to hire new counsel for the purposes of filing a motion for new trial, and also for setting it for sentencing. [¶] ... [¶] I also was advised by [defendant]'s wife that they had a number of letters from [defendant]'s employment, from his church, a variety of people .... So I assume that he would want to provide the Court those letters of recommendation ....
"At that point I was contacted by—sometime—and I apologize, because I was on vacation in July, and my memory is more focused on my vacation in July than I am of the practice, but before I left on my vacation I was contacted by an attorney from Beverly Hills, and had a long conversation with that attorney about her intending to substitute in as attorney of record and take over the representation. I represented to her that I would need the substitution of attorneys signed by her to provide to the Court because the Court had represented to me that you wanted a proper substitution, and if there was a request of continuance, it should be made in writing.
"I signed that form in July before I left on my vacation, and I'm unaware of what transponded [sic] after that until the time of sentencing. I
wasn't concerned about this because it was my understanding that another attorney was going to substitute in, and I had no reason to believe that those things wouldn't happen. I was aware, however, based on my conversation with Counsel and Ms. Caplan ... that she had just had a hip surgery days before we had our conversation. In fact, I called her in the morning and she said I need to call you back in the afternoon because I'm highly medicated.
"And so we talked, and she represented to me that she was going to be highly medicated for a period of two or three weeks because of the hip surgery and was not practicing and was not in her office, nor was she making any court appearances. [¶] At this point I clearly feel as though I have a conflict in my representation of [defendant] because of his strong feeling about my ineffectiveness in his representation, and because he's substituted—and because he has attempted to substitute new counsel in for his representation. I don't feel like I can represent him at sentencing conflict free.
"So that gives [sic] us to the point of his failure to provide the Court with a timely substitution as well as a timely motion to continue, and I think it runs into, directly, [defendant]'s right to have counsel of choice, as well as his exercise of adequately prepared counsel for sentencing. And again, I submit. I did not seek the letters of—from other people on his behalf because it was my understanding that he had hired new counsel, and it was my understanding that he no longer wished to have me representing him, and that would have been before—actually before the last sentencing. It came to my attention a week before that sentencing that he didn't—he no longer wanted me to represent him, that he would be seeking new counsel."
The court responded:
"Well, I agree that the Court normally will do anything within reason to accommodate someone's ability to have the attorney of their choice, but that right is not a trump card on the orderly process of the court, and the Court has continued this for well over a month for that process to have been taken care of. And what I was told this morning was that Ms. Caplan didn't believe she needed to file a 1050, and I don't know exactly how that conclusion could have been reached given the pretty clear language of 1050. I have nothing in front of me, and I do mean nothing in front of me, that would let me know anything about why Ms. Caplan has not done what she would be required to do under 1050, nothing that would allow me to find that good cause exist[s] for the failure to comply with 1050, which has me a bit boxed into a corner. [¶] ... [¶]
"... I did make it very clear on the 24th of June that this was not going to just stretch out into the future, that there would need to be not only somebody substituted in, but that person or someone on their behalf needed to be here last Friday the 29th, and that if there was going to be a request to continue sentencing beyond the 29th of July, a 1050, with established good cause, needed to be before the Court. And we are now here on August the 1st with none of those things occurring."
Lor then addressed the court regarding Caplan's situation, and the court declined to continue the sentencing hearing:
"MS. LOR: Your Honor, I of course am making a courtesy appearance on behalf of Ms. Caplan, and so I am learning information through Ms. Caplan. Again, as I represented when we were off the record, that, and as Mr. Magill mentioned, Ms. Caplan had a total hip replacement surgery at the end of June. As Mr. Magill mentioned she was highly medicated. I believe in my conversation with Ms. Caplan she was aware that there was a 1050 requirement; however, she seemed to be under the impression, and it may have been through her conversation with Mr. Magill, that that may not have been necessary, that the only thing that was necessary was substitution of attorney.
"THE COURT: Well let me interrupt, because that wasn't even done. The only time there was a substitution of attorney filed was after the sentencing hearing on the 29th when it was, I think abundantly clear, that I was not particularly pleased with the status of the case. After that hearing, apparently Ms. Caplan decided that filing it was actually necessary, and she filed it about 3:00 that afternoon. So she didn't even file a substitution of attorney let alone a 1050.
"MS. LOR: And, Your Honor, if I may ask the Court to have leniency where that's concerned, and have the Court look at the totality of the circumstances. Ms. Caplan is down in Beverly Hills as Mr. Magill mentioned, she just had surgery, she is on medication, and she is trying to rely on a number of people to let her know what she is supposed to do in this particular situation. She signed the substitution back in July which she believed was going to be filed. So she didn't learn until much later that it had not been filed.
"THE COURT: Who did she intrust [sic] with the filing of the substitution then? It is not done by osmosis. If she didn't have it filed, how did she believe it was going to be filed?
"MS. LOR: I believe she thought Mr. Magill was the one that was going to file the substitution of attorney, Your Honor.
"THE COURT: I don't know Ms. Caplan, but what is being described to me right now as it relates to how somebody substitutes in as attorney of record and how somebody gets a case continued—I'm assuming she practices criminal law. You can't, in good faith, say that you just expected somebody else to pick up those obligations and run with them. Those were her obligations, not Mr. Magill.
"MS. LOR: And I understand the Court's position, Your Honor. Just in this particular situation with her particular circumstances, the fact that she was medically out and in this time period and may have had to rely medically on the assistance of other people, in particular perhaps Mr. Magill, in particular an agent, investigator, who may have dropped the ball, Your Honor. I'm just asking the Court to take that into consideration. I come in here on her behalf, which is the first time, I believe, anybody has come on her behalf. So certainly I will take the Court's words back to her and let her know the Court's words in what Your Honor has to say.
"THE COURT: My words I think were really clear on the 24th of June. And as far as this concept of showing leniency, I granted a five week continuance of a hearing orally to accommodate [defendant]'s request to have Ms. Caplan come into the case. I have yet to have received anything other than an improperly filed substitution of attorney from Ms. Caplan. This isn't an issue of leniency from the Court. This is an issue of me having people in my Court for a third time now for a sentencing hearing, including the victim of the case, and being asked to continue it, yet again, when I still, to this date, have no information from Ms. Caplan that would justify doing so.
"So I am not trying to be unkind or overly aggressive towards anyone, but at some point the sentencing hearing has to go forward, and it does not somehow cutoff [defendant]'s ability to seek relief if his position is that there has been an ineffective assistance of counsel. That is not an uncommon thing for people to pursue on appeal. But it does get to a point where the Court no longer, without any basis for doing so, is simply going to kick the can farther down the road on the off chance that somebody might actually follow through and file a motion. So, I mean, there does need to be some finality at some point.
"MS. LOR: Yes, Your Honor. The last thing I would ask the Court to consider is the fact that, as I mentioned off the record, I do have an
electronic copy of the motion, that if the Court was inclined to continue this, I could immediately have this filed, Your Honor.
"THE COURT: But what you don't have, and what I—and I sympathize with the position you're in right now—is what I would need to have to get to hearing that actual motion, which is good cause for why it wasn't properly filed and served according to the code. I can't just—well, if People want to waive notice we can, but short of that, what Ms. Caplan has to establish and I don't know how she does that when the substitution was filed over a month ago, or not over a month ago just shy of a month ago, or having not provided anything to the Court. There is no declaration before me. There is nothing before me either to establish good cause for the continuance, or to establish good cause for failing to file the motion appropriately."
After the court stated its decision not to continue the sentencing hearing, it noted:
"[T]he bigger question right now is, is [defendant] ready to go forward with a sentencing hearing with [Ms. Lor] proceeding as representing the substituted counsel, is he going to want to go forward with Mr. Magill[, his original counsel], or is he going to want to go forward representing himself, which was raised at the last hearing, but it was pretty clear at that date that it was simply because he wanted to afford more time for Ms. Caplan to actually be here."
Lor then stated she was instructed by Caplan not to proceed with sentencing that day and thus, no longer moved for substitution on Caplan's behalf. Defendant then requested to continue in propria persona. The court explained to defendant the disadvantages of self-representation and, after defendant confirmed he understood, the court granted his request. Thereafter, the court sentenced defendant to the upper term of 16 years' imprisonment.
A. Standard of Review
A continuance may only be granted for good cause, and trial courts have broad discretion to determine whether good cause exists. (Pen. Code, § 1050, subd. (e); People v. Alexander (2010) 49 Cal.4th 846, 934.) We review an order denying a motion to continue for an abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) This standard applies to motions to continue sentencing hearings as well as requests for time to allow a defendant to retain different counsel. (See, e.g., People v. Jeffers (1987) 188 Cal.App.3d 840, 850 (Jeffers).)
The party challenging a ruling on a continuance bears the burden of establishing an abuse of that discretion. (People v. Beames (2007) 40 Cal.4th 907, 920; People v. Strozier (1993) 20 Cal.App.4th 55, 60; Jeffers, supra, 188 Cal.App.3d at p. 850.) "Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames, supra, at p. 920.) In determining whether the denial was so arbitrary as to violate due process, we look to the circumstances of each case, particularly the reasons presented to the court at the time the request was denied. (People v. Courts (1985) 37 Cal.3d 784, 791 (Courts); Jeffers, supra, at p. 850.)
B. Applicable Law
"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.]" (Courts, supra, 37 Cal.3d at p. 789.)
"Both [the California Supreme Court] and the United States Supreme Court have emphasized that trial courts have the responsibility to protect a financially able individual's right to appear and defend with counsel of his own choosing. 'A necessary corollary [of the right] is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. [Citations.]' [Citations.] In addition, counsel, 'once retained, [must be] given a reasonable time in which to prepare the defense.' [Citation.] Failure to respect these rights constitutes a denial of due process. [Citations.]" (Courts, supra, at p. 790.)
"Any limitations on the right to counsel of one's choosing are carefully circumscribed. Thus, the right 'can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' [Citations.] The right to such counsel 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.' [Citation.]" (Courts, supra, 37 Cal.3d at p. 790; see People v. Leonard (2000) 78 Cal.App.4th 776, 784.) In assessing a claim based on the denial of the defendant's right to counsel of choice, the court cannot engage in a harmless error analysis. (See Courts, supra, at p. 796.)
While due process secures a defendant's right to appear with retained counsel of choice, this right is not absolute, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is unjustifiably dilatory or arbitrarily desires to substitute counsel at the time of trial. (People v. Leonard, supra, 78 Cal.App.4th at p. 784; Jeffers, supra, 188 Cal.App.3d at p. 850.) "'[O]nly an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel.'" (People v. Alexander supra, 49 Cal.4th at p. 934.) A good faith, reasonable effort to retain private counsel must be "sharply contrasted 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." (Courts, supra, 37 Cal.3d at p. 791, fn. 3.) Notably, "the 'reasonable efforts' required of the courts to ensure that a financially able individual be represented by counsel of his choice assume greater importance where the accused is not responsible for the absence of retained counsel." (See Courts, at p. 792.)
C. Analysis
Defendant argues the trial court erred in failing to continue the sentencing hearing to permit Caplan, defendant's newly retained counsel, to appear. He contends his constitutional right to retained counsel of his choice at sentencing was violated, and he did nothing to cause the delays. The People respond the court gave defendant ample time to hire new counsel, counsel belatedly filed a motion for substitution of counsel, no motion for continuance was filed, and "the trial court had no facts before it to support a good cause showing for another continuance." We agree with defendant.
Penal Code section 1050, subdivision (b) provides a party seeking to continue a hearing in a criminal proceeding must file and serve notice of the request, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, at least two court days before the scheduled hearing. (Ibid.) Nevertheless, Penal Code section 1050, subdivisions (c) and (d) provide that a party may still move for a continuance without complying with the requirements of subdivision (b) if the moving party shows good cause for the failure to comply with those requirements. (Id., subds. (c), (d).) In such cases, the court must hold a hearing to determine if there is good cause for the failure to comply with subdivision (b)'s requirements. (Id., subd. (d).) "At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding.... If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted." (Ibid.)
Here, both Magill and Lor provided good cause for Caplan's failure to comply with the requirements of Penal Code section 1050, subdivision (b). At the second sentencing hearing, Magill and defendant notified the court defendant had retained Caplan as substitute counsel weeks earlier. Magill explained he had spoken to Caplan, and she had had a full hip replacement and been heavily medicated in the weeks leading up to the hearing. He also explained Caplan could be present three business days after that sentencing hearing—Wednesday, August 3, 2016. Nevertheless, the court reset the sentencing hearing one business day later, on Monday, August 1, 2016, thereby making it impossible for Caplan to comply with the two court days' notice requirement of Penal Code section 1050, subdivision (b). Before that hearing, Caplan filed a substitution of attorney form signed by defendant, Magill, and Caplan (albeit on the incorrect form and without a completed proof of service). At the August 1, 2016, hearing, Lor, who appeared on behalf of Caplan, reiterated that Caplan had just had surgery and was medicated and had been medicated during the period leading up to the hearing. She requested a continuance to permit Caplan time to appear. Importantly, the prosecutor never objected to defendant's requests for a continuance to permit his counsel to appear.
Based on this record, we conclude the court abused its discretion in failing to continue the sentencing hearing to permit Caplan to appear, effectively denying defendant the right to counsel of his choice during the sentencing hearing. Defendant was diligent in retaining Caplan, who he retained weeks before the sentencing hearing, and the delays in seeking a continuance and Caplan's inability to attend the sentencing hearings were not defendant's fault. (See Courts, supra, 37 Cal.3d at p. 792 [defendant could not be faulted for lack of diligence in failing to conclude arrangements with substitute counsel while substitute counsel was on vacation].) Thus, we cannot conclude defendant was "unjustifiably dilatory." (Id. at p. 791; see People v. Leonard, supra, 78 Cal.App.4th at p. 784; Jeffers, supra, 188 Cal.App.3d at p. 850.) And the record does not reflect that continuing the sentencing hearing would have resulted in significant prejudice to defendant or in such an inconvenience as to disrupt the orderly processes of justice. (See Courts, supra, at p. 794 [no circumstance warranted limitation of defendant's right to counsel based on considerations of judicial efficiency where record failed to show continuance would have "significantly inconvenienced" court or parties].) Indeed, the court granted a continuance after the second sentencing hearing but reset the hearing for the following Monday despite Magill's representation that Caplan could be present if it was continued to that Wednesday, two days later. Moreover, because Caplan filed a notice of substitution and sent Lor to appear on her behalf, "the court was not confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel." (Courts, at p. 791.) Thus, based on the specific circumstances of this case, the court abused its discretion in refusing to continue the sentencing hearing to allow Caplan to appear on defendant's behalf, violating defendant's right to counsel of his choice during sentencing. (Ibid. ["'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.' [Citation.] For this reason, trial courts should accommodate such requests—when they are linked to an assertion of the right to retained counsel—'to the fullest extent consistent with effective judicial administration.' [Citation.]"].)
Accordingly, we reverse and remand for the trial court to conduct a new sentencing hearing. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 146 [because "the right at stake here [was] the right to counsel of choice, not the right to a fair trial," the violation was "complete" when the court erroneously denied the defendant the right to be represented by counsel of his choice; "[n]o additional showing of prejudice is required"].)
The People do not argue that, if we were to conclude defendant was deprived of his right to counsel at sentencing, such deprivation should be reviewed for harmless error. However, even if we were to conclude the error was not structural, applying the standard articulated in Chapman v. California (1967) 386 U.S. 18, 23, we cannot conclude it was harmless. This is not a situation where the court imposed the minimum sentence available, such that there was no possibility defendant could obtain a more favorable result on remand. Rather, here, defendant could be sentenced to either a lower term of six years, the middle term of 12 years, or the upper term of 16 years, and the court exercised its discretion to sentence defendant to the upper term of 16 years' imprisonment. Permitting defendant counsel of his choice at sentencing and the opportunity to file a motion for new trial might have made a difference. (E.g., People v. Ngaue (1991) 229 Cal.App.3d 1115, 1127 [remanding for resentencing where "[c]ounsel might have made a difference" because trial judge could have imposed different sentence].) Thus, we cannot conclude beyond a reasonable doubt that the denial of defendant's right to counsel of his choice during sentencing did not affect the judgment. --------
In two other issues on appeal, defendant argues he is entitled to a new sentencing hearing because he received ineffective assistance of counsel during the posttrial proceedings and the trial court improperly granted his request to appear in propria persona during sentencing because he did not make an unequivocal request to represent himself. Because we reverse and remand for a new sentencing hearing based on the other grounds stated herein, we need not address these issues.
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for a new sentencing hearing. If defendant is unable to retain counsel, counsel shall be appointed to represent him at this hearing.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.