THE PEOPLE v. TRAYVEON DAVID LENNAN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. TRAYVEON DAVID LENNAN, Defendant and Appellant.

B221354

Decided: February 28, 2011

Theresa A. Gibbons for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Julia A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant, Trayveon David Lennan, was convicted of two counts of attempted murder.   Appellant argues the court violated his due process rights by refusing to grant a continuance on the first day of trial so he could retain another attorney.   We disagree and affirm.

FACTUAL AND PROCEDURAL SUMMARY

In December 2008, appellant was charged with two counts of attempted murder.   As to each count, it was alleged that appellant personally used, intentionally discharged, and proximately caused great bodily injury with a firearm, and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang.   It also was alleged that appellant had two prior felony convictions and that he had served two prior prison terms.

Appellant privately retained Lawrence Young as his counsel.   After multiple pretrial conferences, trial was set for June 9, 2009.   The trial was continued twice, once at the request of the prosecution and once at the request of the defense, and was set a third time for September 29, 2009.   On that date, with appellant in lockup, attorney Young appeared in Department 100 of the Superior Court and announced he was ready for trial.   The matter was then transferred to Department 107 for trial.   Prior to the commencement of jury selection, appellant moved to replace his attorney.   The court denied the motion and the trial commenced.   Appellant was found guilty of both counts with a true finding on all the special allegations.   He waived a trial on the previous conviction allegations and admitted them.   He was sentenced to state prison for a total of 78 years to life plus five years.   This timely appeal followed.

DISCUSSION

Appellant argues the trial court violated his due process rights by refusing to grant a continuance so he could retain another attorney.1

Appellant sought to replace his attorney at the moment jury selection was to begin, stating that he only met with his attorney four times outside of court appearances, they never discussed the attorney's trial strategy, and that he felt they were “ill-prepared” for trial.   He admitted he had not made this request at prior court appearances.   Attorney Young stated appellant never discussed a possible discharge but that appellant had said that he felt the trial was “coming too fast.”   The court stated:  “You've acknowledged, Mr. Lennan, you never brought this to the attention of any other court.   The matter was announced ready for trial.   It was announced ready for trial in the calendar court.   It was announced ready for trial in the master calendar court.   You apparently never brought it to anybody's attention.   It now is in this court.   It is 2:03 p.m. in the afternoon.   We have 65 jurors outside who have been ordered, and now you bring it up.”   The prosecution added that witnesses were being flown in from out-of-state for the trial.

Attorney Young joined appellant in his request for continuance because appellant had other pending matters which appellant preferred to be completed before commencement of this trial.   The court considered the request but noted that “there is at least one other case involving a charge of [murder] ․ at the prelim level ․ [S]o we have no idea when that would go.   And the interest [s] of justice ․ are such that they apply not only to Mr. Lennan but also to the People.”   The court concluded:  “There is absolutely no justification and certainly not good cause to tinker with the system.   And that is a kind word, manipulate some might say.”

A nonindigent criminal defendant has a due process right to discharge his retained attorney at any time, with or without cause.  (People v. Ortiz (1990) 51 Cal.3d 975, 984 [“While we do require an indigent criminal defendant who is seeking to substitute one appointed attorney for another to demonstrate either that the first appointed attorney is providing inadequate representation [citations], or that he and the attorney are embroiled in irreconcilable conflict [citation], we have never required a nonindigent criminal defendant to make such a showing in order to discharge his retained counsel.”].) However, a trial court may deny the request where it would significantly prejudice the defendant or if it is untimely and would result in an unreasonable “ ‘disruption of the orderly processes of justice.’ ”  (Id. at p. 982.)   When deciding whether to grant such a request, the court must balance the defendant's interest in new counsel against the disruption that would result from the substitution.  (People v. Turner (1992) 7 Cal.App.4th 913, 919.)   In doing so, the court “must exercise its discretion reasonably:  ‘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.’ ”   (People v. Ortiz, supra, 51 Cal.3d at p. 984.)   An improper denial of a defendant's right to discharge retained counsel is never a harmless error and results in automatic reversal.  (Id. at p. 988.)

Appellant was present in court on eight occasions prior to the first day of trial, but never requested a discharge of counsel and never discussed it with attorney Young.   Instead, appellant made his first and only request to discharge his counsel moments before the court began jury selection, and the court properly found it untimely.  (See People v. Lau (1986) 177 Cal.App.3d 473, 479 [trial court did not abuse its discretion by denying request to replace attorney when request “was made literally the moment jury selection was to begin” and the “timeliness, or lack thereof, of the request properly concerned the court.”].) Attorney Young and opposing counsel were ready, out-of-state witnesses were being flown in, and the jury venire was waiting.   Thus, there were ample factors supporting the court's determination that the untimely request would result in further delay of a trial that had already been continued twice.

Appellant asserts that he was not certain of the need for new counsel until days before trial, when he became more and more concerned about attorney Young's lack of preparation and failure to consult with him.   Thus, the day of trial was his first opportunity to express his concerns.   These allegations are unsupported by the record.   At trial, appellant did not articulate any specific grievance concerning attorney Young, but rather, made general statements about not feeling prepared or involved in attorney Young's trial planning.   Attorney Young was not aware of appellant's dissatisfaction and nothing on the record demonstrates an actual conflict between appellant and attorney Young.2  (See People v. Lau, supra, 177 Cal.App.3d at pp. 477, 479 [disagreement between defendant and counsel over whether to plead guilty not sufficient justification for new counsel at start of trial].)   Appellant and attorney Young never discussed a possible replacement.   But appellant did express that he felt the trial was “coming too fast,” which appears unrelated to any concerns over attorney Young's performance or preparation to date.   At trial, the court observed that appellant sought to delay trial until after his other outstanding case was resolved.   The court considered the request but concluded that it would cause an unreasonable delay and would enable appellant to manipulate the court.

Appellant cites People v. Lara (2001) 86 Cal.App.4th 139 (Lara ), in support of his position.   In that case, as soon as the court convened the trial proceedings, defendant's retained counsel immediately informed the court about a possible conflict between himself and his client.   The court conducted a closed Marsden 3 hearing and invited defendant to speak.   Defendant stated that his counsel never spoke with him about the trial prior to that day and that they disagreed about certain witness strategies.  (Lara, supra, at pp. 146-147.)   The court found the conflict was a “ ‘tactical difference’ ” that did not constitute a fracture of the attorney-client relationship required under Marsden.  (Lara, at p. 148.)   The trial proceeded and defendant was found guilty.   Defendant filed a motion for a new trial based on ineffective counsel.   The motion was denied.  (Id. at p. 149.)   On appeal, defendant argued the trial court erroneously handled his pretrial request to discharge his retained counsel as a Marsden motion.   The appellate court agreed, finding that a Marsden hearing is improper when a defendant seeks to replace retained counsel.  (Lara, at pp. 153, 155.)   The court held that Ortiz, supra, 51 Cal.3d 975, established the proper method to evaluate defendant's request.  (Lara, at pp. 153, 155.)   Thus, the trial court failed to exercise its discretion under Ortiz because it improperly applied Marsden and never discussed the Ortiz factors.  (Lara, supra, at p. 166.)

Lara, supra, 86 Cal.App.4th 139, is cited by appellant to argue that the trial court here abused its discretion by denying his motion on the grounds it was untimely and would result in an unreasonable delay.   But Lara did not turn on timeliness.   While that court rejected respondent's argument that a request made on the first day of trial is necessarily untimely and prejudicial in violation of Ortiz, it found that “this aspect of the timeliness issue must remain as mere speculation given the trial court's mishandling” of defendant's request to discharge retained counsel as a Marsden motion.   (Lara, supra, at p. 163.)   The court noted:  “[T]he prosecutor never objected to the supposed Marsden motion as being untimely.   The trial court considered the supposed Marsden motion on its merits and did not make any findings as to the motion being untimely.   We thus lack any factual findings that appellant's motion was necessarily untimely or that it would have disrupted the orderly process of justice.”  (Lara, at p. 163.)   Thus, the trial court in Lara did not err because it improperly found defendant's request untimely and prejudicial.   Rather, it erred by not discussing those factors at all and treating the request as a Marsden motion.  (Lara, at p. 166.)  Lara does not aid appellant here, when the trial court explicitly found the request untimely and explained why granting the request would result in an unreasonable delay.

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Although appellant did not specifically ask for a continuance, he asked the court if it would consider “giving me some time to get me another attorney.”   He then stated he had already found another attorney who was ready to step in, to which the court responded:  “[y]ou just don't ․ step in.”   We agree with the trial court's observation that any replacement attorney would need time to prepare and we interpret appellant's request as a request for a continuance..  FN1. Although appellant did not specifically ask for a continuance, he asked the court if it would consider “giving me some time to get me another attorney.”   He then stated he had already found another attorney who was ready to step in, to which the court responded:  “[y]ou just don't ․ step in.”   We agree with the trial court's observation that any replacement attorney would need time to prepare and we interpret appellant's request as a request for a continuance.

FN2. Appellant makes new allegations about attorney Young's representation, but we may not consider them on appeal.  (See People v. Jarrett (1970) 6 Cal.App.3d 737, 739.).  FN2. Appellant makes new allegations about attorney Young's representation, but we may not consider them on appeal.  (See People v. Jarrett (1970) 6 Cal.App.3d 737, 739.)

FN3. People v. Marsden (1970) 2 Cal.3d 118 (Marsden )..  FN3. People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).

MANELLA, J. SUZUKAWA, J.