Opinion
No. 34271-5-II.
April 3, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02595-8, Katherine M. Stolz, J., entered December 9, 2005.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
Lisa Diane Chavez appeals her convictions and sentence for one count of attempting to elude a police vehicle, one count of driving under the influence, and one count of failure to remain at the scene of an injury accident. Chavez claims that (1) the trial court denied her Sixth Amendment right to counsel by refusing a continuance, so she could obtain counsel of her choice; (2) the evidence was insufficient to support her felony elude conviction; and (3) the trial court erred in calculating her offender score. Finding no error, we affirm.
[I]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.' U.S. Const., amend. VI.
FACTS
On the evening of May 24, 2005, Lisa Diane Chavez rear-ended a car driven by Carlton Spuck, pushing his car into the rear of a car driven by Josephine Cusumano. Cusumano left her car, approached the vehicle behind hers, and asked the driver if he was okay. Chavez jumped out of her vehicle, asked if everybody was okay, and then returned to her white Dodge and fled the scene, heading north on Union Avenue in Steilacoom, Washington. Cusumano called 911 and reported both the accident and the license plate number of the white Dodge. Cusumano and Spuck described the white Dodge and its driver to Steilacoom Public Safety Officer Brian Weekes when he arrived at the scene of the accident. While Weekes was at the scene, Chavez drove past and Weekes left the scene to pursue her.
Weekes activated his emergency lights and siren in an attempt to stop Chavez. Chavez refused to pull over when Weekes signaled to her. She made a right turn, swerved into oncoming traffic, and hit the curb on the opposite side of the street. Weekes called for backup and Public Safety Officer Larry Whelan joined the pursuit.
Officers Weekes and Whelan performed a "felony stop" and ordered Chavez out of her vehicle at gunpoint after she turned into a dead end cul-de-sac and stopped her car. Report of Proceedings (RP) at 23. Weekes found both an empty and a full bottle of Mad Dog 20/20 fortified wine on the passenger seat floor. Weekes read Chavez her Miranda rights. Both victims identified Chavez as the individual who fled the scene of the accident.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The day after the accident, Cusumano consulted her chiropractor about back and neck pain. She experienced "unbearable pain" for the first week and a half following the accident and lingering pain for two to three additional weeks. RP at 84.
On May 26, 2005, the State charged Chavez with attempting to elude a pursuing police vehicle (count I) and driving under the influence of intoxicants (count II). The State later amended the information, adding charges for failing to remain at the scene of an injury accident (count III) and violation of duty in case of damage to attended vehicle or other property (count IV). On June 16, 2005, the trial court filed a scheduling order setting the trial for July 12, 2005. Chavez signed the scheduling order and indicated that the Department of Assigned Counsel (DAC) would represent her. On June 29 the trial court granted Chavez's first motion to continue and set trial on August 30, 2005, to allow assigned counsel more time to investigate. On August 30, the trial court granted Chavez's second motion to continue so that assigned counsel could continue to interview witnesses and continued the trial to October 24, 2005. On October 24 the trial court granted the State's first motion to continue, due to witness availability, and continued the trial to November 2, 2005. On November 2 the trial court again continued the trial to November 3, 2005, because Chavez's counsel was sick. On November 3 the trial court continued the trial to November 8, 2005, because no courtroom was available.
On November 7, 2005, Chavez requested a continuance so that she could retain a new attorney. The attorney who she proposed called both the prosecutor and her assigned counsel to tell them that Chavez wanted to hire him. However, he also told her assigned counsel that he was not available for trial until late January 2006. The State objected to another continuance. Chavez's assigned counsel stated that he was ready to proceed to trial; he had interviewed the witnesses for the case, reviewed the videotape, reviewed the case law, filed a brief, and spoken to Chavez about her recollection of the facts. The trial court denied Chavez's motion, stating that the case was 165 days old and the proposed private attorney would not be available to try the case for another two to three months.
On November 8 the trial court continued the trial to November 16, 2005, because no courtrooms were available. After a three-day trial, which began on November 16, 2005, the jury found Chavez guilty on all counts and returned a special verdict finding that Chavez refused to take a breath test.
At sentencing, the trial court dismissed count IV (duty in case of damage to attended vehicle or other property). The trial court sentenced Chavez to standard range sentences of 18 months on count I, 365 days on count II, and 57 months on count III.
ANALYSIS
I. Denial of Sixth Amendment Right to Choice of Counsel
Chavez argues that the trial court violated her Sixth Amendment right to counsel when it refused to continue the trial so that her chosen private counsel could represent her. Defendants have the right to retain counsel of choice and the denial of a motion for continuance may unlawfully deprive the defendant of that right. State v. Chase, 59 Wn. App. 501, 506, 799 P.2d 272 (1990) (citing Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)). The right to retain counsel of one's choice, however, is limited — the assertion of the right must be made within a reasonable time before trial. Chase, 59 Wn. App. at 506. `"In the absence of substantial reasons a late request should generally be denied, especially if the granting of such a request may result in delay of the trial."' Chase, 59 Wn. App. at 506 (quoting State v. Garcia, 92 Wn. 2d 647, 655-56, 600 P.2d 1010 (1979)). `"A motion for continuance to secure or replace counsel will routinely be denied where the accused's lack of representation is attributable to his own lack of diligence in procuring or replacing counsel."' State v. Early, 70 Wn. App. 452, 458-59, 853 P.2d 964 (1993) (quoting 12 royce a. ferguson, jr., washington practice: criminal practice and procedure §§ 1913, at 375 (1984).
"We review a trial court's refusal to grant a continuance for abuse of discretion." State v. Campbell, 78 Wn. App. 813, 820, 901 P.2d 1050. CrR 3.3(f) states that trial courts may grant continuances "[u]pon written agreement of the parties" or "by motion of the court or a party."
A criminal defendant, however, is not entitled to a continuance as a matter of right. The trial court in exercising its discretion considers various factors including diligence, due process, the need for an orderly procedure, and the possible impact on the trial. It may also consider whether prior continuances have been granted. Denial of the motion will not be disturbed absent a showing that the defendant was prejudiced or that the result of the trial would likely have been different had the motion been granted.
State v. Early, 70 Wn. App. at 457-58 (citations omitted).
Chavez states that she requested a brief continuance to allow the private attorney to represent her, but that the trial court denied her motion without "any discussion of how the State would be prejudiced or how the court's calendar would be inconvenienced." Br. of Appellant at 7. This is not a correct reading of the record.
On the day before trial was scheduled to begin, Chavez's proposed private counsel indicated that Chavez wished to retain him. He had earlier told her assigned counsel that he would agree to represent Chavez, but that he was unavailable for trial for the next three months. The State objected to the continuance because the trial court had already continued the trial several times and the State was ready for trial that day. Assigned counsel stated that he was also ready to proceed.
The trial court denied Chavez's motion, stating that trial was assigned for that day, the case was already 165 days old, new counsel would be unable to try the case for three months, and that the court had to weigh the interests of the alleged victim against her right to counsel of her choice.
Chavez contends that a recent United States Supreme Court decision, United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 165 L. Ed. 2d 409, 2006 U.S. LEXIS *5165 (2006), provides an absolute right to counsel of choice.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence[sic]." We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him. See Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). Cf. Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed. 158 (1932) ("It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice").
Gonzalez-Lopez, 126 S. Ct. at 2561. The Court further stated:
So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided — to wit, that the accused be defended by the counsel he believes to be best. "The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause." In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation "complete."
Gonzalez-Lopez, 126 S. Ct. at 2562 (internal citations omitted). But Gonzalez-Lopez is factually distinguishable.
In Gonzalez-Lopez, defendant's family hired a local attorney to represent him. Following arraignment, the defendant contacted an out-of-state attorney regarding representation as co-counsel. Eventually, the defendant decided to retain only the out-of-state attorney and the out-of-state attorney filed for admission pro hac vice. But the District Court denied his application without explanation. Later, the District Court revealed that it denied his application because he had violated the local rules of professional conduct by communicating with a represented party. Gonzalez-Lopez, 126 S. Ct. at 2560. Despite repeated attempts on the part of the defendant and the attorney, the District Court refused to allow the defendant the counsel of his choice. Gonzalez-Lopez, 126 S. Ct. at 2561. The Supreme Court held that the District Court violated the defendant's Sixth Amendment right to counsel of choice, noting that the Government conceded that the District Court erred when it denied the defendant his choice of counsel. The Supreme Court clarified the scope of its holding at the end of its majority opinion.
Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice. . . . We have recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar. . . . This is not a case about a court's power to . . . make scheduling and other decisions that effectively exclude a defendant's first choice of counsel.
Gonzalez-Lopez, 126 S. Ct. at 2565-66 (internal citations omitted).
Here, the trial court did not repeatedly deny Chavez's requests to obtain her counsel of choice. At arraignment on June 16, 2005, Chavez requested that the Department of Assigned Counsel represent her. Over the following four and one-half months, the trial court granted several continuances, three of which were at the request of Chavez (twice to allow assigned counsel to prepare for trial and once because assigned counsel was sick).
The record provides no evidence that Chavez requested private counsel until she orally requested another continuance on the day before trial was scheduled to begin. Chavez failed to provide any reason for the delay. We routinely deny a motion for continuance to secure or replace counsel where the defendant's lack of representation is attributable to his own lack of diligence in procuring or replacing counsel. State v. Early, 70 Wn. App. at 458-59. Furthermore, the continuance would have delayed the trial an additional three months.
The trial court did not wrongfully deny Chavez her Sixth Amendment right to counsel, nor did it abuse its discretion in refusing to continue the trial until her chosen counsel could represent her three months hence.
II. Offender Score Calculation
Chavez argues that the trial court erred in scoring the Driving While Under the Influence of Intoxicants (DUI) offense as a felony "other current offense" under RCW 9.94A.525(1) for purposes of her offender score. She contends that her offender score was 6 instead of 7.
Statutory interpretation is a question of law that we review de novo. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1070, 151 L. Ed. 2d 972 (2002). When interpreting statutory provisions, our primary objective is to ascertain and give effect to the intent and purpose of the legislature in creating the statute. State v. Sullivan, 143 Wn.2d 162, 174-75, 19 P.3d 1012 (2001). We look first to the language of the statute to determine legislative intent. State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992). If the statute is clear on its face, we must derive its meaning from the plain language of the statute alone. Keller, 143 Wn.2d at 276. We discern the plain meaning of a statutory provision from the "ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).
When a sentencing provision is reasonably subject to two different interpretations, we must choose the interpretation most favorable to the criminal defendant. State v. Roberts, 117 Wn.2d 576, 586, 817 P.2d 855 (1991). But we will avoid unlikely, absurd, or strained results from a literal reading. McDougal, 120 Wn.2d at 350.
Chavez first argues the trial court erred when calculating the offender score for her felony eluding charge (count I) by including a point for her current DUI charge (count II). Chavez acknowledges that a prior DUI would count as one point toward her offender score, but contends that RCW 9.94A.525(11) only applies to prior convictions because the statute says "for each serious traffic offense, . . . count one point for each adult . . . prior conviction." Here, the trial court sentenced Chavez for both convictions on the same day.
RCW 9.94A.589(1)(a) provides that "whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score." Eluding a police officer is a felony traffic offense and driving under the influence is a serious traffic offense. RCW 9.94A.525(11) provides that, when calculating an offender score for felony traffic offenses, serious traffic offenses count as one point for an adult.
"`Felony traffic offense' means: . . . eluding a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW 46.52.020(4))." RCW 9.94A.030(24)(a).
"`Serious traffic offense' means: . . . [d]riving while under the influence of intoxicating liquor or any drug (RCW 46.61.502)." RCW 9.94A.030(40)(a).
The trial court did not err by including Chavez's current DUI, sentenced on the same day as the felony eluding charge, in calculating her offender score.
Next, Chavez states that if we find that RCW 9.94A.525(1) designates the DUI as an "other current offense," our interpretation renders RCW 9.94A.589(1) ambiguous. Chavez claims that RCW 9.94A.589(1)(a) only applies to felonies because the statute uses the clause, "the sentence range for each current offense." Without providing additional authority or support, Chavez contends that this language presumes that the current offense has a sentencing range, which is only applicable to felonies, because a DUI "has a mandatory minimum sentence and a maximum possible sentence but no sentencing range." Br. of Appellant at 11.
Chavez urges us to hold that RCW 9.94A.589 applies only to felonies or, in the alternative, that it is susceptible to two reasonable meanings, such that the rule of lenity required the trial court to find in her favor. We decline this invitation.
Chavez incorrectly interprets the language of RCW 9.94A.589. The statute states that "whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score." RCW 9.94A.589(1)(a) (emphasis added). The plain language does not indicate that it applies only to felonies. Rather, it is clear that only the current charge, for which the trial court is calculating an offender score, must have a sentencing range.
The trial court did not try to calculate an offender score for the DUI charge. Moreover, the plain language does not require that the other current and prior convictions have sentencing ranges. Finally, if we were to accept Chavez's interpretation, the result would be absurd because the court would punish Chavez more harshly for her prior DUI than for her current DUI. The trial court did not err by including Chavez's current DUI in her offender score for the felony eluding charge.
Chavez's criminal history also contains an unrelated DUI from 2000.
III. Sufficiency of Evidence
Chavez argues that the evidence was insufficient to support finding that "the officer giving such a signal shall be in uniform," for the eluding charge. RCW 46.61.024. Chavez does not contest the sufficiency of the evidence for other elements of the offenses or convictions. "A reviewing court will reverse a conviction for insufficient evidence only where no rational trier of fact could find that all elements of the crime were proved beyond a reasonable doubt." State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). "By claiming the evidence is insufficient, the defendant admits the truth of the State's evidence and all inferences that can reasonably be drawn from it." State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). We will not independently review the evidence because "the trier of fact is in a better position to assess the credibility of witnesses, take evidence, and observe the demeanor of those testifying." State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994).
RCW 46.61.024 provides:
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.
RCW 46.61.024(1) (emphasis added).
Chavez correctly asserts that Weekes did not testify that he was in uniform during the pursuit. Furthermore, Chavez correctly asserts that Whelan, the officer in the car behind Weekes's vehicle, testified that, as a public safety officer, he worked for the police department, fire department, and as an EMT. Whelan testified, without elaborating, that he wears the same uniform everyday. Chavez contends that this Page 12 evidence alone is insufficient to prove that the officers were in uniform. But the State also admitted and played a videotape for the jury that clearly showed that both officers were in uniform.
The record on appeal includes this videotape. The videotape originated from a camera attached to Whelan's patrol car. When the officers exited their respective vehicles to apprehend Chavez, the word "POLICE" is clearly visible on the back of Weekes's black uniform. Plaintiff's Exhibit 2.
Any rational trier of fact would conclude that both officers were in uniform and Chavez's claim of insufficient evidence fails.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C. J., QUINN-BRINTNALL, J. Concur.