Filed 1/22/20 P. v. Hanna CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

HANY ARMYA HANNA,

Defendant and Appellant.

B297877

(Los Angeles County

Super. Ct. No. PA090965)

APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Ulfig and Hilleri G. Merritt, Judges. Affirmed.

Werksman Jackson & Quinn, Kelly C. Quinn, Elizabeth Little and Kimberly Barreto for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller, Acting Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Hany Armya Hanna was charged with corporal injury on a spouse (Pen. Code, § 273.5, subd. (a); count 1), and false imprisonment (§ 236; count 2), with an allegation he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e), count 1). Pursuant to a plea agreement, defendant pled no contest to count 1 and admitted the great bodily injury enhancement. The court dismissed count 2 and the enhancement on the People’s motion and sentenced defendant to state prison for a term of 3 years. Defendant appeals from the judgment of conviction, contending the trial court erred by denying his requests to substitute retained counsel and continue trial on the day it was set to begin. We disagree and affirm the judgment.

BACKGROUND

Because they frequently engaged in physical altercations, defendant and his wife, Christine H., separated and began living in separate homes. Christine lived with their two children, and defendant could visit them in Christine’s home only if she was not around.

Christine had surgery on April 26, 2018, and went home to rest. While in her bedroom with a male friend, Christine suddenly felt like someone was trying to get into her room from a sliding backdoor. She looked and saw defendant at the door. Rather than answer Christine’s question why he was there, defendant pushed Christine and walked inside.

After defendant told the male friend to leave, defendant forcibly pushed Christine against the bedroom wall. Christine fell down, and defendant kicked and punched her back, stomach, head, and face. Defendant prevented Christine from getting to her car and brought her into the kids’ room. He then punched Christine again, causing blood to “fall[] everywhere.”

Defendant and Christine suddenly heard knocking at the front door, so defendant ordered Christine to stay in the room. After he answered the door, the police informed defendant they had received a noise complaint. Moments later, Christine walked out of the bedroom so the police could see her injuries.

In light of defendant’s alleged conduct, the trial court issued a criminal protective order prohibiting defendant from having any contact with Christine.

DISCUSSION

Defendant contends the trial court violated his Sixth Amendment right to counsel by denying his requests to substitute private counsel on the day trial was set to commence. We disagree.

Procedural Background

From time defendant appeared at the preliminary hearing on September 17, 2018, to the trial readiness conference and first day of trial on February 6, 2019, defendant retained and was represented by attorney Ronald Hedding. After defendant pled not guilty to the charges and denied the enhancement allegations, the court set a pretrial hearing for October 30, 2018, and last day for trial on November 30, 2018.

Due to ongoing plea negotiations, the court continued the pretrial hearing three times and set a trial readiness conference for February 6, 2019. The court informed defendant he should expect to go to trial within 30 days of December 18, 2018. Four days before the readiness conference, the parties ended plea negotiations with the People offering defendant an overall term of imprisonment of three years.

On the day of the readiness conference and first day of trial, attorney Joshua Ritter filed a section 1050 motion for a continuance. In the motion, Ritter sought a 30-day continuance of trial because defendant had retained him the day prior and Ritter had not reviewed any discovery pertaining to the case.

When the court called the matter for trial readiness, the People and Hedding appeared and stated they were ready to proceed to trial. Ritter also appeared but sought to be substituted as defense counsel, stating “recent developments between [defendant] and his prior attorney, that obviously, [I] can’t get into . . . has caused him to seek other counsel.” Ritter requested a “short one-time continuance so that we can have time to adequately look through the discovery. I saw it for the first time this morning.” In the alternative, Ritter sought to be substituted as counsel with the first day of trial set for the following day. If substituted, Ritter would “either settle this case or bring it to trial.”

The People objected to a continuance. The prosecutor informed the court that defendant continued to violate the protective order by having ongoing contact with Christine.

Finding no good cause warranting a substitution and/or continuance, the court denied the motion and request. The court found the motion and request were untimely. A contrary ruling would continue a case that was ready to proceed to trial with an available courtroom, jurors, and witnesses. Although the court had trailed the case several times, Ritter had not been retained until the day before the trial readiness conference and had not reviewed discovery for a case involving serious charges and a great bodily injury enhancement. Under the circumstances, the court noted a substitution without a continuance would be grounds for reversal due to ineffective assistance of counsel. It also stated it believed defendant was “playing games.”

After the case was transferred for a jury trial, Ritter renewed his request to be substituted as defense counsel, this time requesting a one-week continuance. The People restated their opposition and added that both of the attorneys’ schedules were cleared for trial, and the victim had stated “that she wanted the case to be resolved, they were in [family] counseling, they’re working things out, and she was begging [the People] to give him a non-prison offer.”

The court responded to Ritter’s renewed request: “You were literally hired yesterday. So I would imagine you don’t have the discovery; you don’t have—have not had an occasion to go through the preliminary hearing transcript, the police reports, the medical records I see that are here.” A review of the discovery documents would inevitably cause additional delay. Following an unreported conference in chambers, the court again denied the request, finding it would be unfair to Ritter, who would have one night to prepare for trial, as well as to the People, who were ready to proceed with a victim who was emotionally ready to testify.

After the court denied Ritter’s motion and requests, defendant reached a plea agreement, pleading no contest to the charge and admitting to the allegations in the enhancement. The court accepted the plea, issued a 10-year protective order, dismissed count 2 on the People’s motion, and sentenced defendant to a term of three years in state prison on count 1.

Defendant filed a timely notice of appeal.

Analysis

A criminal defendant has a Sixth Amendment right to retained counsel of his or her choice. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 (Gonzalez-Lopez); People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) That right, however, is not absolute. (Ortiz, supra, 51 Cal.3d at p. 983.) 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].” (Ortiz, supra, at p. 983; People v. Lopez (2018) 22 Cal.App.5th 40, 47 (Lopez); see also People v. Verdugo (2010) 50 Cal.4th 263, 311 [“a trial court has ‘wide latitude in balancing the right to counsel of choice against the needs of fairness’ and ‘against the demands of its calendar’”].)

Given 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 close to the date of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary. (Courts, supra, at p. 792, fn. 4 [eve-of-trial requests may be “a significant factor” justifying a denial where there are “no compelling circumstances to the contrary”].) 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 trial.’ [Citation.]” (Id. at pp. 790–791.)

Under the circumstances faced by the court in this case, we cannot say it abused its discretion in consistently denying the motion and requests for a continuance. The requests, by written and oral motion, were made on the day trial was set to commence. Each request was unjustifiably dilatory. (Courts, supra, 37 Cal.3d at pp. 790–791.) Nothing in the record suggests defendant made a good faith or diligent effort to substitute retained counsel leading up to trial. Nor did defendant provide any compelling reason for waiting until the day of trial—after settlement negotiations had failed—to ask to delay the trial to hire a different attorney, who himself suggested the substitution would cause additional delay and could lead to further plea negotiations. (See People v. Keshishian (2008) 162 Cal.App.4th 425, 429 (Keshishian) [right to counsel “‘“cannot mean a defendant may continually delay his day of judgment by discharging prior counsel,”’ and the court is within its discretion to deny a last-minute motion for continuance to secure counsel”]; People v. Blake (1980) 105 Cal.App.3d 619, 623–624 [“a defendant who desires to retain his own counsel . . . may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial”].) Contrary to defendant’s contention, the court did not assume but reasonably concluded additional delay would inevitably ensue if it substituted Ritter in as defense counsel. The court’s finding is substantiated by Ritter’s varied continuance requests—beginning with 30 days, subsequently changed to one week, and again changed to one night.

Absent a continuance, the requested substitution would have significantly prejudiced defendant. (Ortiz, supra, 51 Cal.3d at p. 983.) Contrary to defendant’s contention, the court properly determined Ritter was not prepared for a trial involving sensitive issues of domestic violence within a dysfunctional family dynamic, and it found Ritter could not effectively review discovery and prepare for trial in one night’s time. (See People v. Lara (2001) 86 Cal.App.4th 139, 153 [court retains discretion to deny motion to substitute counsel if it would cause “‘“significant prejudice”’ to the defendant, e.g., by forcing him to trial without adequate representation”].)

The substitution also would have disrupted the orderly processes of justice. (Ortiz, supra, 51 Cal.3d at p. 983.) At the commencement of trial, both Hedding and the People announced they were ready to proceed. Up to that point, Hedding had continuously represented defendant. (See People v. Maciel (2013) 57 Cal.4th 482, 512 [court may consider whether retained attorney is inadequate or has an irreconcilable conflict with defendant when deciding if discharge would disrupt orderly processes of justice].) Witnesses had been subpoenaed, a trial court had been assigned (thereby rendering that court unavailable for other ready trials), and jurors were ordered for defendant’s trial. Despite the parties’ and trial court’s readiness to proceed, defendant requested to substitute in an unprepared attorney whose participation would have inevitably continued trial for an unspecified period of time.

Defendant’s reliance on Lopez, supra, 22 Cal.App.5th 40 is misplaced. In that case, the defendant requested to substitute private counsel or have counsel appointed at a readiness conference that was held a week before trial was scheduled to begin. (Id. at pp. 44–45.) The requested substitution followed multiple continuances and was unopposed by the People. (Id. at pp. 44, 49.) Nevertheless, the trial court denied defendant’s request because the case was almost two years old and defendant’s attorney was prepared for trial even though he was not retained for that proceeding. (Id. at pp. 44–45.) The court reversed, finding no “basis for concluding that the trial court made an implied finding that allowing [defendant] to discharge [his attorney] ‘would result in “‘disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’”’ [Citation.]” (Id. at p. 50.)

The differences between this case and Lopez are many. Most significantly, the trial court in this case determined defendant would be prejudiced by the requested substitution. (See Lopez, supra, 22 Cal.App.5th at p. 47 [trial court “did not suggest it was concerned about potential prejudice” and the Attorney General never argued the ruling was justified on that basis].) Moreover, the trial court in this case weighed the concerns about the case’s progress against defendant’s right to discharge a prepared attorney for an unprepared one. (See id. at p. 49.) Further, defendant in this case was represented by retained counsel and knew trial would commence on the day he sought to substitute counsel. (Compare id. at p. 48 [request came “before it was clear whether the trial would proceed,” and counsel was not retained for trial, “raising the specter . . . [defendant] would ‘“get what he paid for”’” if forced to go to trial with unpaid counsel].) Finally, in light of the ongoing attempts at continuing trial, the court in this case believed defendant had an improper motive behind the requests. (Compare id. at p. 48 [“the trial court did not indicate it believed [defendant] had improper motives”].) Thus, Lopez is inapposite.

In short, the trial court did not abuse its discretion when it denied the requests for substitution and for a continuance. The continuance requests were unjustifiably dilatory, and the substitution would prejudice defendant and would inordinately delay the trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

CURREY, J.