Opinion
D053247 D054407
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MANUEL LANDA, Defendant and Appellant. In re ROBERT MANUEL LANDA, On Habeas Corpus.
Not to be Published in Official Reports
Robert Landa appeals a judgment revoking his probation and sentencing him to state prison. He asserts the trial court abused its discretion by denying his request for a continuance and the error is per se reversible. Landas petition for writ of habeas corpus raises the same claim but brought before this court a copy of a videotape that forms the basis for his claim of error. We affirm the judgment and deny the habeas corpus petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Offense
On July 26, 2007, while on formal probation for a previous conviction, Landa entered a Blockbuster Video store around 5:30 p.m. He surrendered his backpack and skateboard to the manager (Mr. Reyes) as Landa entered the store. A few minutes later, Landa walked from the merchandise area and started to leave. However, when he passed through the electronic security passageway located in front of the exit door, the security alarm sounded. Landa backed up and again tried to leave, but the alarm sounded again. Insisting he did not have store merchandise on his person, Landa emptied his pockets at Reyess request and walked through the passageway a few more times, but the alarm sounded each time. Landa then walked away from the exit and headed toward the game section of the store located a couple of aisles from the front register. The game section contains empty cases for video games.
Landa then emerged from the game section, collected his backpack and skateboard, and passed through the sensor again. The alarm did not sound.
Another employee, Mr. Miller, witnessed the majority of the event. Mr. Miller, assisted by a customer who had seen Landa in the game section, searched the game area. Behind one of the game cases Miller found six DVD disks for the movie "The Hills Have Eyes 2," all of which were out of their larger package. At least one of them was equipped with security sensors designed to set off the alarm as it passes through the security gate.
Procedural Background
The Peoples amended petition to revoke Landas probation alleged he had committed burglary (Pen. Code, § 459), petty theft (§§ 484, 488) and battery (§ 242). On September 5, 2007, the court granted Landas request to represent himself; the court also appointed an investigator and runner to assist Landa. On September 28, 2007, Landa filed his motion to continue the evidentiary hearing on the probation revocation petition. On October 2, 2007, the date for the scheduled evidentiary hearing, the court heard Landas arguments on the requested continuance. Landa explained the grounds were (1) he needed additional time to study the law, (2) he had a bail-related motion he wanted to file; and (3) he needed additional time to file a petition for writ of habeas corpus. The court heard and denied his bail motion on its merits, and found the other grounds were insufficient to warrant a continuance. Landa then argued he needed a continuance to prepare motions alleging various violations of his due process rights, including his right to a fair trial, to reasonable bail, to notice of the charges against him, and to receipt of a transcript. The court again rejected his request for a continuance.
All further statutory references are to the Penal Code.
Landa then articulated other grounds for seeking a continuance. He asserted full discovery had not been provided to him, because (1) he had received the helicopter videotape less than one week prior to the hearing; (2) he received notice four days before the hearing that a prosecution witness had a prior conviction; (3) police reports had been omitted from the discovery materials he received one month before the hearing; and (4) there was a "video[tape] from the Blockbuster place that [he] didnt get." The prosecutor responded that she had provided copies of all materials in her possession to Landa. The prosecutor also stated she had notified Landa about the witnesss prior conviction immediately upon learning about it, but the issue was moot because that individual would not be testifying.
After Landa left the Blockbuster Video store, there was a police pursuit involving a police helicopter.
Landa then complained that "I need to see the video[tape] of the actual Blockbuster place. Its in evidence." The prosecutor stated she had a copy she could provide to him, and the court directed the prosecutor to provide Landa a copy of the videotape (and the equipment necessary to view it), and then ordered a recess to allow Landa the chance to view the videotape. Landa then stated he had yet "another motion for a continuance," and stated his ground for the motion was that "I didnt know there was going to be witnesses" at the revocation hearing. The court again denied the requested continuance. However, the court did order a recess to allow Landa to view the Blockbuster videotape.
The prosecutor also stated she had tried to give Landa a copy of the videotape the preceding week, but the Sheriff declined to give it to Landa because the Sheriff viewed it as a possible weapon.
After a nearly three-hour recess, during which Landa viewed the videotape, the court asked whether Landa had any additional grounds to continue the hearing. Landa stated he required a continuance because the investigator assigned to him had not complied with crucial assignments; however, after an ex parte hearing at which Landa explained his complaints about the investigator, the court denied the continuance. After rejecting Landas effort to file a peremptory challenge, the evidentiary hearing commenced.
Court personnel stated Landa watched the videotape twice, but Landa claimed he only saw it once because the second time he "was experiencing some medical problems."
At the close of the evidentiary hearing, the court asked Landa whether he wished to present any defense evidence. Landa claimed he wanted to call witnesses but his investigator "wasnt able to do it because [Landa] didnt have enough time" or "didnt do his job." The court asked who he wished to subpoena, but Landa stated he could not recall "off the top of my head" but could "figure [it] out . . . if you want to do a recess." The court declined a further continuance, and again asked if Landa wished to present any evidence. Landa complained he was only given one month to prepare and he needed a continuance "because the District Attorneys office [less than one week earlier] gave me these charges." However, after the court explained the amended petition had merely alleged violations that were lesser included offenses of the originally charged offense, the court asked if Landa had "[a]nything further." Landa said he had nothing further, and the defense rested.
ANALYSIS
Landas appeal and writ petition assert the trial court abused its discretion when it denied his request for a continuance, and the error is per se reversible because it denied him the right to counsel.
Legal Framework
The decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) The party challenging a ruling on a continuance motion bears the burden of establishing an abuse of discretion, and an order denying a continuance motion is seldom successfully attacked. (Ibid.) Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. (See People v. Jones (1998) 17 Cal.4th 279, 318.) Although the denial of a continuance may be so arbitrary as to deny due process (see, e.g., People v. Frye (1998) 18 Cal.4th 894, 1013, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), not every denial of a request for more time violates due process, even if the party who sought the continuance thereafter fails to offer evidence. (Ungar v. Sarafite (1964) 376 U.S. 575, 589.) Although "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] [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process." (Id. at p. 589.) Instead, "[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." (Id. at p. 589, italics added.)
Where, as here, the defendant is representing himself in propria persona, he must be given adequate time and opportunity to prepare for trial. (People v. Maddox (1967) 67 Cal.2d 647, 652-653.) A defendant appearing in propria persona is not entitled to any greater privileges or time than that accorded attorneys, but neither is the defendant entitled to any less. (Ibid.) Although a defendant in custody who chooses to conduct his or her defense in propria persona "does so subject to the disabilities normally attendant upon the status as a prisoner [citation], a pro se defendant must be given a reasonable opportunity to prepare a defense." (People v. Cruz (1978) 83 Cal.App.3d 308, 324.)
Analysis
In this proceeding, Landa argues by analogy to Cruz and to People v. Schulz (1992) 5 Cal.App.4th 563 that the denial of the continuance here was an abuse of discretion and mandates reversal. Landa asserts his in-custody status prevented him from viewing the videotape prior to trial, and he was given only a poor-quality videotape to view during the short continuance allowed by the court. Landa asserts his request for a continuance should have been granted to give him more time to discern whether the videotape (even in its poor quality) provided possible value to his defense, or, alternatively, to allow him to have the videotape enhanced by an expert to render it more viewable. He therefore asserts that denial of the continuance, like the denials in Schulz and Cruz, was an abuse of discretion and mandates reversal.
However, although Landa cited multiple reasons to the trial court as grounds for the requested continuance (allegedly new charges; inadequate assistance of the investigator; need to subpoena witnesses for trial; filing a writ of habeas corpus; additional time to study the law), he never asserted (after viewing the videotape) that his review of that videotape required additional trial preparation or that he needed to have the tape enhanced to assist in his defense. Because "[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process [and the] answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied" (People v. Crovedi (1966) 65 Cal.2d 199, 207, quoting Ungar Sarafite, supra, 376 U.S. at p. 589, italics added), we cannot conclude the trial court abused its discretion by failing to divine this newly minted basis for a continuance and to grant the motion.
We note that, despite the fullness of time that has elapsed since Landas trial, neither the brief filed in connection with Landas appeal nor his brief filed in connection with his writ of habeas corpus suggests the tape in fact contained evidence even remotely beneficial to his defense. Instead, Landa simply asserts he "might" have seen "something exculpatory" had he been given additional time to view the tape or to have it enhanced, without identifying where on the videotape that "something" might have been.
We are unpersuaded by Landas claim that his circumstances were akin to the circumstances present in either Schulz or Cruz. In Schulz, the propria persona defendant was beginning to prepare for the retrial of an enhancement allegation, and had begun to accumulate his trial materials, when he was transferred to state prison and denied all propria persona privileges, including access to his accumulated materials or legal files, to law books, or to telephone privileges to contact prospective expert witnesses. He was not fully restored to his propria persona privileges for almost two months. Moreover, his access to his accumulated files lasted only three days because he was again transferred to state prison and denied all propria persona privileges, including access to his accumulated materials or legal files. When he was finally transferred back to county jail three days before the start of trial, he was denied access to necessary resources; jail personnel lost the box containing his accumulated defense materials; and the reporters transcripts from the first trial (which the court had ordered to be prepared and given to him to allow him to prepare for the retrial) had not been given to the defendant. (People v. Schulz, supra, 5 Cal.App.4th at pp. 571-573.) The defendant alerted the trial court to these circumstances in support of his request for a continuance, but the trial court denied the request. This court, noting the lost and withheld materials were "noteworthy both because of the breadth of the materials compiled and the direct relevance of many items to presenting an adequate defense" (id. at p. 573), held it was an abuse of discretion to deny him a continuance. (Id. at pp. 573-574.) In contrast, Landa does not claim on appeal that he was denied access to resources to prepare for trial, but instead claims only that he received tardy access to a videotape not entered into evidence and apparently duplicative of the descriptions of events by witnesses, which descriptions were contained in police reports Landa was given well before trial. Moreover, unlike Schulz, Landa did not assert below that the abbreviated viewing opportunity attendant to his tardy receipt of the videotape necessitated a continuance. We conclude that Schulz has no resemblance to Landas circumstances.
Cruz bears even less relevance to this matter. In Cruz, the defendant was given propria persona status one month before the scheduled trial date (People v. Cruz, supra, 83 Cal.App.3d at pp. 317, 319) and, despite being incarcerated until four days before the scheduled trial date (id. at p. 322), was not provided an investigator to locate a key witness to his defense. (Id. at p. 325.) The defendant informed the trial court these circumstances prevented him from locating the key witness and justified his request for a continuance, but the trial court denied the request. The Cruz court concluded the denial of the continuance was an abuse of discretion. (Ibid.) Here, Landa was provided with an investigator, and did not contend below that a continuance was justified because of problems engendered by the last minute receipt of the videotape, rendering Cruz inapposite.
DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is denied.
WE CONCUR:
NARES, Acting P. J.
OROURKE, J.