THE PEOPLE v. QUINTON MARCELL CARR

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. QUINTON MARCELL CARR, Defendant and Appellant.

B208025

-- January 27, 2010

A. William Bartz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Quinton Marcell Carr appeals the judgment entered following his conviction by jury of unlawful possession of a firearm.  (Pen.Code, § 12021, subd. (a)(1).) 1  Carr contends the denial of his requests for substitution of trial counsel and for a continuance to effectuate the substitution of trial counsel violated his constitutional right to counsel of his choice.   We conclude Carr did not assert the right to counsel of his choosing in a timely manner and the trial court committed no abuse of discretion in denying the request.   We therefore reject Carr's contentions and affirm the judgment.

BACKGROUND

1. The underlying incident.

On September 5, 2007, Los Angeles police officers went to a residence on South Defiance Street to investigate a possible disturbance of the peace.   As the officers arrived, one of them made eye contact with Carr who was standing in the street.   Carr ran, removed a pistol from his waistband and threw it over the gate of the residence.   The officers arrested Carr for possession of a firearm by a felon.

2. Carr is represented by appointed counsel.

At the preliminary hearing on October 12, 2007, Carr was represented by public defender Brent Tufeld.

Carr was arraigned on December 26, 2007, and trial was set for February 21, 2008, as day 57 of 60 for trial. (§ 1382, subd. (a)(1).)   On February 21, 2008, the trial court indicated it had discussed the case with both counsel in chambers and the trial would start the next day, Friday, February 22, 2008, at 1:45 p.m.

On Friday, February 22, 2008, both Tufeld and the prosecutor were ill.   The trial court indicated it would continue the matter to Monday, February 25, 2008, as day 60 of 60 but would prefer that Carr stipulate Tuesday, February 26, 2008, would be day 58 of 60.   At that point, the deputy public defender standing in for Tufeld stated Carr not only would waive time until Tuesday, but had been speaking to a private attorney he wished to retain.   Further, Carr had expressed displeasure with Tufeld's work on the case.

The trial court elicited from Carr a stipulation that Tuesday, February 26, 2007, would be day 58 of 60 for trial.   Defense counsel joined in the stipulation but reiterated Carr's request for a longer continuance.   The trial court indicated it would address the matter on February 26, 2007, if privately retained counsel appeared.   The trial court then advised Carr, “if it turns out that private counsel is retained, if counsel could notify the court as well as [the prosecutor] as soon as possible.   Perhaps we could call the case earlier that morning if there's going to be a request for a continuance.”

3. Carr seeks substitution of counsel.

On February 26, 2008, at 1:45 p.m., Public Defender Tufeld indicated Attorney Charles Agege telephoned him the previous evening.   Agege indicated Carr had contacted him about substituting in as counsel of record.   Tufeld further indicated Agege was present in court as Carr's retained counsel and that Agege wished to substitute in as counsel.   The trial court reminded Carr that, at the hearing on February 22, 2008, Carr had been instructed that, if Carr wished to retain new counsel, he should notify the trial court no later than the morning of February 26, 2008.   However, Carr had not given such notice.

The trial court addressed Agege:  “[W]e are expecting the panel of 50 jurors here in ten minutes.   Today is day 8 of 10 and certainly if you're able to stand in and proceed with trial at 2:00 [p.m.] in this matter, I'd be happy to allow you to stand in this case․”  Agege responded it would be “impossible” for him to start trial that afternoon.   The trial court offered to “delay the case for some time” to allow Agege to prepare, but indicated “jury selection would start today in this matter.”   Thereafter, Agege insisted on “a minimum of 60 days ․ to get ready and try this case effectively.”   The trial court indicated it appreciated Agege's professionalism but could not grant a continuance of 60 days to allow the substitution and indicated the matter would “proceed with the panel coming up in just a few minutes.”

4. Verdict and sentencing.

A jury convicted Carr of unlawful possession of a firearm but found a criminal street gang enhancement not true. (§ 186.22, subd. (b)(1).)   Carr admitted a prior conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i);  1170.12) and two prior prison terms within the meaning of section 667.5, subdivision (b).  The trial court sentenced Carr to eight years in state prison.

CONTENTIONS

Carr contends “the trial court's refusal to permit [him] to substitute counsel, including its refusal to permit a brief continuance to effectuate such substitution, was error.”

DISCUSSION

1. Legal principles.

Under the Sixth Amendment, a criminal defendant who can afford to retain counsel has a right to obtain counsel of his or her choice.  (U.S. Const., 6th Amend.;  United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 [165 L.Ed.2d. 409].)   At the same time, a defendant's right to retain counsel is not absolute.   A trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, [citation], and against the demands of its calendar, [citation].  (Gonzalez-Lopez, supra, at p. 152.)  “The trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice’ [citations].”  (People v. Ortiz (1990) 51 Cal.3d 975, 983;  see Ungar v. Sarafite (1964) 376 U.S. 575, 589 [11 L.Ed.2d 921] [decision to grant or deny a continuance to retain different counsel is discretionary].)

In view of the state's countervailing interest in judicial efficiency, a trial court generally enjoys discretion in granting or denying a continuance to permit a defendant to be represented by retained counsel.  (People v. Courts (1985) 37 Cal.3d 784, 790-791 (Courts ).)   In assessing whether the trial court's denial of a continuance amounts to an abuse of discretion, the reviewing court “looks to the circumstances of each case, ‘ “particularly in the reasons presented to the trial judge at the time the request [was] denied.”  ‘ [Citations.]”  (People v. Mungia (2008) 44 Cal.4th 1101, 1118.)

Where the defendant requests a continuance on the eve of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary.  (Courts, supra, 37 Cal.3d at p. 792, fn. 4.) Thus, a continuance may be denied where the defendant “is ‘unjustifiably dilatory’ in obtaining counsel” or “ ‘arbitrarily chooses to substitute counsel at the time of the trial.’  [Citation.]”  (Id. at pp. 790-791.)

2. Carr's contentions.

Carr contends a request to substitute retained counsel made on the day set for trial is not necessarily untimely.  (People v. Lara (2001) 86 Cal.App.4th 139, 162-163.)   Carr asserts there was no evidence the substitution would have resulted in an unreasonable disruption of the administration of justice or that the request to substitute counsel was made in bad faith or to delay the proceedings and the People did not object to the continuance.   Carr argues that, in the relatively unusual circumstance in which a defendant attempts to replace appointed counsel with retained counsel, the trial court should exercise “ ‘resourceful diligence’ in protecting the right to chosen counsel ․, even when a byproduct of a concrete and timely assertion of that right is some disruption in the process.”  (Courts, supra, 37 Cal.3d at p. 795.)

Carr notes the request for a continuance was the first Carr had made in this case and, even had the 60-day continuance been granted, the matter would have been tried within four months of Carr's arraignment, which would not have been an extended period of time.   Carr concludes the trial court's denial of the request for substitution of counsel reflects a “ ‘myopic insistence upon expeditiousness' “ which was condemned in Courts.  (Courts, supra, 37 Cal.3d at p. 791.)

3. No abuse of trial court's discretion appears.

The record indicates Carr was not diligent in retaining counsel or in attempting to inform the trial court that he had retained counsel.   In Courts, the case on which Carr places primary reliance, a defendant accused of murder retained an attorney approximately one week before trial.   (Courts, supra, 37 Cal.3d at p. 787.)   The defendant repeatedly attempted to bring a request to substitute counsel to the trial court's attention without success.  Courts concluded the defendant diligently had retained counsel in advance of trial and diligently sought to apprise the trial court of the substitution.  (Id. at pp. 791.)

Here, neither of the circumstances present in Courts obtain.   Carr failed to retain counsel until the 11th hour.   Retained counsel did not appear in court until the afternoon of February 26, 2008.   At that point, the trial court was waiting for a panel of prospective jurors to arrive in the courtroom.   Carr also failed to notify the trial court of the substitution, even though the trial court had admonished Carr to do so.  Courts contrasted the situation presented in that case “with the eve-of-trial, day-of-trial, and second-day-of-trial requests” that consistently had been held to be untimely in other cases.  (Courts, supra, 37 Cal.3d at p. 792, fn. 4.) Carr's case falls in the “eve of trial” category.   Although this factor is not determinative, the timing of the request is significant.

Additionally, Carr failed to offer compelling reasons justifying a continuance to effectuate a substitution of counsel on the eve of trial.  (See People v. Crovedi (1966) 65 Cal.2d 199, 208-209 [illness of retained counsel].)   Based on these circumstances, the trial court reasonably could conclude allowing retained counsel to substitute into the case would disrupt the orderly administration of justice.  (See People v. Turner (1992) 7 Cal.App.4th 913, 919 [no abuse of discretion in denying defendant's request to substitute counsel where “the request could not be granted without causing a significant disruption, i.e., a continuance with the attendant further inconvenience to witnesses and other participants”].)   Consequently, we reject Carr's claims of error in the trial court's refusal to permit substitution of counsel and a 60-day continuance to effectuate such substitution.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

1.  FN1. Subsequent unspecified statutory references are to the Penal Code.

KLEIN, P. J.

CROSKEY, J.ALDRICH, J.

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