NOT TO BE PUBLISHED IN OFFICIAL REPORTS
A jury convicted defendant Ron Roberson of committing an aggravated assault with great bodily injury. In this appeal, Roberson claims the trial court improperly denied three motions: his motion to continue (made as voir dire was about to begin); his motion for mistrial (made by his own counsel based on ineffective assistance); and his motion for new trial (also based on a claim of ineffective assistance of counsel).
We will find that the trial court did not abuse its discretion when it denied the continuance and mistrial motions. The continuance motion was untimely and not supported by good cause; the motion for mistrial did not establish a legal necessity.
As to the motion for new trial, the trial court concluded that Roberson's counsel provided ineffective assistance. But the court also found no prejudice: the probability of a different result in the absence of ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) We agree with the trial court.
Thus, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 24, 2011, at around 8:00 p.m., D. Heard was waiting at a bus stop in Newport Beach, where he had arranged to meet up with T. Shannon, defendant Roberson's ex-girlfriend. They had planned to take a bus together to Dana Point and spend time together on Heard's boat. Heard saw Shannon arrive in a truck, which was driven by Roberson. Shannon got out of the truck and hugged Heard. A couple of minutes later, Roberson drove by and pointed his hand at Heard, motioning as if he were holding a gun.
Shannon and Heard had just missed the bus, so Shannon made arrangements to have some friends come and pick them up in a car. As Heard was entering the door of that car, Roberson pulled Heard from behind and started hitting Heard on the side of his head. Roberson hit Heard on his head and the side of his face at least eight times with full blows. Heard fell to his knees. Roberson, who was wearing work-type boots, possibly steel-toed, kicked Heard in the back and in the ribs at least four times. Roberson knocked the wind out of Heard and he was in pain. Roberson told Heard, "don't do it again." Roberson ran back to his truck and left.
Later that night, Shannon's friends drove her and Heard to his boat in Dana Point. For the next three days, Heard and Shannon were together on the boat. Heard was in pain, but he refused to go the hospital. On the third day, a friend, Lorraine, picked up Heard and Shannon. They went to a warehouse where Shannon had been staying, and then they went to the hospital. According to a doctor at the hospital, Heard had suffered a fractured rib, a lacerated spleen, and a kidney contusion. Roberson later sent a text message to Shannon: "Hey, I know you hate me, but that's okay. He is lucky that's all he got. Next time it will be what he's got coming." When the police arrested Roberson, he told them he did not know why he was being arrested, and Shannon was "full of shit."
Roberson testified that he returned to the bus stop because he feared for Shannon's safety. Roberson said that he "dragged [Heard] away from door of the car" and had hit him no "more than twice." Roberson said Heard fell to the ground, then he kicked him no "more than once."
A jury found Roberson guilty of assault with force likely to produce great bodily injury and that he had personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(4), 12022.7, subd. (a).)
Roberson claims that the trial court improperly denied three of his motions: a) a motion to continue; b) a motion for mistrial; and c) a motion for new trial. We shall address each of Roberson's claims in turn.
A. The trial court properly denied Roberson's motion to continue the trial because it was untimely and not supported by good cause.
"To continue any hearing in a criminal proceeding, including the trial, . . . a written notice shall be filed and served . . . at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary. . . ." (§ 1050, subd. (b).) "Continuances shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) "When deciding whether or not good cause for a continuance has been shown, the court shall consider the general convenience and prior commitments of all witnesses, including peace officers." (§ 1050, subd. (g)(1).)
Generally, a criminal defendant has a right to discharge a retained attorney at any time, with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 984.) 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.) The trial court must balance the defendant's interest in hiring new counsel against the disruption that would result from the substitution. (People v. Turner (1992) 7 Cal.App.4th 913, 919.)
A trial court's denial of a defendant's motion to continue is reviewed for an abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) We defer to a court's discretionary rulings unless they exceed all bounds of reason. (People v. Cross (2005) 127 Cal.App.4th 63, 73.) If there is a factual and rational basis for a particular ruling, we cannot find an abuse of discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) We view the evidence in a light most favorable to the ruling and we can only find error if we determine that no court judge could reasonably have made the same ruling. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
In May 2012, Roberson was arraigned on a felony complaint; he posted a $25,000 bond. In September 2013, Roberson retained a private attorney, Richard Hurley. About a year later, the matter was assigned to a trial court for a jury trial. That morning, and into the afternoon, the court heard pretrial motions and ruled on the admissibility of evidence. (Evid. Code, § 402.) Roberson moved to exclude the text messages he had sent to Shannon after the assault. The court denied the motion. It then concluded with the pretrial motions and declared a recess in the mid-afternoon.
The following morning, the judge took the bench. "We'll go on the record and indicate it's 9:33. I've been asked to come out. The jurors should probably be in the hallway. [¶] What can I do to assist?" Defense counsel advised the court: "Your honor, [Roberson] has just informed me that he's terminating my employment. I told him, `I don't know if you can do that at this stage. You're going to have to take that up with the judge.'"
The trial court immediately conducted a "Marsden-style" hearing outside of the presence of the prosecutor. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) Roberson told the court that he wanted to "change counsel" because of a "conflict." When asked about the conflict, Roberson said, "It has do with another case that's in probate court, and I have a brother who is involved in it as well and we don't get along so well. But he's — it's a mess is what it is. Yeah." The court said, "So you've got a probate matter involving your brother and you don't get along with your brother?" Roberson responded, "Yeah. And it's an elderly abuse thing he's got going on. It's just crazy. And my mom and I are really close, and he's trying to do it all for the inheritance. It's a trust, and he's trying to — anyway, he represented us, or me anyway, on that case. [¶] And there's another attorney on top of that, which was recommended by — by Mr. Hurley, and he's not doing anything really and — yeah. So I have put out a lot of money for the other attorney and I have got nothing from him. And I just feel that there's something —"
The trial court asked Roberson, "Why is it coming up now just as the jurors are about to walk into the courtroom?" Roberson replied, "I would have said something, but I haven't been able to get a hold of Mr. Hurley. So I couldn't do it any other time." The court told Roberson, "He was here yesterday. He was here the day before." Roberson responded that he wasn't sure what to do and asked for a brief continuance, "I'm not asking for a whole lot of time."
The trial court denied the request. The court said it had not "heard a good reason. There was no reason not to bring it up before." The court found that a continuance would be unduly prejudicial to the prosecution and to the witnesses. The court said that given the circumstances, he thought the motion was "suspicious," and "I think this is being done to delay the trial." The court told Roberson that he could possibly represent himself, "but that will put you in an extreme disadvantage." The court said that it would get a "Faretta form" for Roberson to review and sign. (Faretta v. California (1975) 422 U.S. 806.) However, the court said that it might not allow Roberson to represent himself if he was unable to proceed that morning. After a break, Roberson indicated to the court that he was prepared to go to trial with his retained counsel.
Under an abuse of discretion standard, when a ruling turns on factual or credibility determination we accord the lower court's decision "considerable deference." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) Here, we defer to the trial court's determination that Roberson's true reason for asking for a continuance was to delay the trial, rather than any conflict with his attorney. In fact, Roberson had been out on bail for over two years and he had retained his attorney about a year prior to the trial. Moreover, Roberson's explanation of the "conflict" and the justification for the delay was incomprehensible. As such, the record fully supports the court's determination that Roberson had not established good cause for the continuance.
Further, Roberson's request was made as the potential jurors were apparently assembling in the hallway outside of the courtroom. This was after the trial court had determined on the prior day that it would admit Roberson's incriminating text messages that he had sought to exclude. Accordingly, the court's determination that the continuance motion was untimely and would be prejudicial to the prosecution and to the witnesses is also well supported by the record.
Thus, the trial court did not abuse its discretion in denying Roberson's motion to continue.
B. The trial court properly denied Roberson's motion for mistrial because it was made before the trial court could gauge the prejudicial impact of the defense attorney's failure to interview a proposed defense witness prior to trial.
A mistrial motion is a request to terminate the trial after it has begun, but before a verdict. The grounds can vary, but the motion can generally only be granted based on a legal necessity: a prejudicial error that cannot be cured by an admonition or an instruction. (See, e.g., People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [erroneous admission of prejudicial evidence]; see also People v. Williams (1997) 16 Cal.4th 153, 211 [witness volunteered prejudicial information that had been excluded].)
Here, during pretrial motions, the prosecutor asked for an offer of proof as to a proposed defense witness. Among other witnesses, Roberson's attorney said that he intended to call a person by the name of Lorraine, but neither he nor Roberson knew her last name.
During the prosecution's case-in-chief, Roberson's counsel moved for a mistrial on the basis of ineffective assistance. Defense counsel said that after he revealed Lorraine's name, the prosecution contacted her and "[t]urns out that [Lorraine] will testify that at some point prior to this trial . . . but after the incident . . . that [Roberson] asked her to fabricate this story. Okay. So now she is going to be called as a prosecution witness." Defense counsel said "none of this would have happened" if he had first interviewed Lorraine prior to listing her as a witness. "And I think that may have been ineffective assistance of counsel for me to do so."
The prosecutor confirmed that after hearing the offer of proof, he spoke to Heard, who told him that Lorraine is a good friend of his. Lorraine had arrived in the courthouse that morning. In the hallway, just prior to the motion, Lorraine told the prosecutor and the defense counsel that she was with Heard and Shannon when they went to the hospital and they "did not stop at a warehouse. And approximately four months ago, [Roberson] had contacted her . . . and propositioned her to lie for money."
The trial court denied Roberson's motion for mistrial. The court explained to Roberson that his attorney had moved to "have this case tried again with someone else and start it over from the beginning. I have not put you in that position. I've declined that because this witness is known to everybody. She'd be available at the second trial." The court said: "So I'm not going to speculate where [defense counsel] got the idea that perhaps this witness would be helpful to your side. I could draw lots of speculation. Among them are an accusation you were behind it. I'm just not going to get into it."
When ruling on a motion for mistrial, a trial court is in a unique position to gauge the relative prejudicial impact of an alleged error. The judge has had the opportunity to observe the jury during its selection, during opening statements, and throughout whatever evidence the jury had been exposed to when the mistrial motion was made. "Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis. The trial court is entrusted with broad discretion in ruling on mistrial motions." (People v. Chatman (2006) 38 Cal.4th 344, 369-370.)
Indeed, the decision to grant a mistrial is particularly consequential; if an appellate court later determines that the ruling was not based on a "legal necessity," then the prosecution generally cannot retry the defendant due to double jeopardy concerns. (Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1525 [defendant could not be retried after erroneous mistrial declared on ineffective assistance grounds].) "Where, as here, a trial court becomes convinced that defense tactics are denying a defendant a fair trial, the proper course of action, in the absence of . . . extreme circumstances . . . is to allow the case to proceed to judgment and then consider whether the defendant is entitled to a new trial." (Id. at p. 1529.) In fact, that is exactly what occurred here. As such, we shall more thoroughly analyze Roberson's ineffective assistance of counsel claim when we get to the motion for new trial.
In sum, we cannot find that the trial court abused its discretion in denying Roberson's motion for mistrial. When the motion was made, neither the court nor the jury had actually heard Lorraine's testimony. To be sure, the court had been told that Lorraine was a good friend of the victim, Heard. The court could understandably have been waiting to let the jury determine if Lorraine was credible. Thus, given the state of the record at the point when the motion was made, we cannot find that the court acted outside of the bounds of its discretion, or that no other reasonable judge would also have denied Roberson's motion for mistrial.
Roberson argues that People v. Coleman (1992) 9 Cal.App.4th 493 (Coleman), compels a different result. We disagree. In Coleman, the prosecution had charged the defendant with murder. (Id. at p. 494.) During an opening statement, defendant's counsel urged the jury to return a verdict of manslaughter; counsel said that the defendant had pointed a weapon at the victim and fired it in imperfect self-defense. (Id. at p. 495, fn. 1.) After the prosecution's case began, the defendant made a "Marsden motion" to substitute appointed counsel. (Id. at p. 495; Marsden, supra, 2 Cal.3d 118.) The defendant told the court that his counsel had misstated his affirmative defense; the defendant claimed that he never pointed the weapon at the victim and it had accidentally fired. The court granted the Marsden motion, but denied defendant's motion for mistrial (made by substitute counsel). (Coleman, supra, 9 Cal.App.4th at pp. 495-496.) The court admonished the same jury to disregard prior counsel's opening statement, just before substitute counsel made a contrary opening statement. (Ibid.)
In Coleman, the appellate court disagreed with the trial court's denial of the defendant's mistrial motions: "While the trial court recognized the conflict of interest and hence substituted counsel, that remedy was inappropriate given the facts here. The prejudice to [defendant] of his prior counsel's opening statement was incalculable. The admonition to the jury to disregard the opening statement of [defendant's] prior defense counsel could not have cured the harm. As substituted counsel argued below, the jury was understandably left with the impression that [defendant] had changed stories between defense counsel. Because the trial court erred in denying [defendant's] motion for a mistrial, we reverse." (Coleman, supra, 9 Cal.App.4th at p. 497, italics added.)
Here, unlike the situation in Coleman, the prejudice to Roberson's case was difficult to gauge at the time Roberson moved for a mistrial. At that point, the jury had not yet heard Lorraine's direct testimony, any cross-examination, or any other possible impeaching evidence Roberson might have presented. In Coleman, prior defense counsel had misrepresented the defendant's version of the evidence in the opening statement, which created a conflict; here, there is no indication that counsel's opening statement was inconsistent with what he had been told by Roberson about Lorraine. In Coleman, prior counsel's opening statement completely undermined the defendant's affirmative defense; here, the defense counsel's disclosure of Lorraine as a witness and his opening statement undoubtedly weakened Roberson's defense, but it did not completely undermine it.
Thus, the trial court did not abuse its discretion in denying Roberson's motion for mistrial.
C. The trial court properly denied Roberson's motion for new trial because he was not prejudiced by his counsel's alleged ineffective assistance.
Although not provided for by statute, a claim of ineffective assistance of counsel may be raised in a motion for new trial. (People v. Callahan (2004) 124 Cal.App.4th 198, 209.) In a defendant's appeal from a denial of a new trial motion based on a claim of ineffective assistance, we apply a mixed standard of review. We defer to the trial court's factual findings if supported by substantial evidence, but we exercise independent, or de novo review, over the ultimate issue of whether the defendant's constitutional rights were violated. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725; see People v. Nesler (1997) 16 Cal.4th 561, 582-583.)
A criminal defendant has a constitutional right to effective assistance of counsel. (U.S. Const., 6th Amend.; Strickland, supra, 466 U.S. at pp. 684-685.) To establish a violation of this right, a defendant must show: 1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) this resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.) "`The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.'" (People v. Karis (1988) 46 Cal.3d 612, 656.)
As to the prejudice prong, "the question is whether there is a reasonable probability that, absent [counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, supra, 466 U.S. at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams, supra, 16 Cal.4th at p. 215.) "We need not and do not determine whether petitioner established the first prong, deficient performance, because we conclude, as did the trial court, that even if counsel's performance was deficient, petitioner has failed to sustain his burden on the issue of prejudice." (In re Alvernaz (1992) 2 Cal.4th 924, 945, citing Strickland, supra, 466 U.S. at p. 697 ["[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed"].)
Here, following the jury's guilty verdict, the trial court appointed a substitute counsel. Roberson filed a motion for a new trial arguing that his prior retained counsel "lacked the basic knowledge of a conscientious advocate when he (1) failed to investigate the case by conducting crucial interviews, (2) failed to provide to the prosecution the most basic of information as is required under Penal Code section 1054 et seq., (3) failed to obtain crucial defense witness statements which had been gathered by prior counsel, (4) attempted to sign his name to a 995 motion, which his client handwrote, and serve[d] it on the Court after trial had begun, and (5) provided information to the prosecution which led to evidence directly harming [Roberson]."
At the hearing on the motion, there was a lengthy discussion regarding trial counsel's competence, or lack thereof. The trial court primarily focused on defense counsel's failure to interview Lorraine: "And when the D.A. found the witness, he was surprised to hear that the claim was that not only will I not say that, I'm going to tell everybody that [Roberson] offered me inducements to go with that story." Due to defense counsel's failure to interview Lorraine, the court found that his "conduct was below the standard of care for any attorney and his representation was incompetent." The court further stated that it would report the defense attorney to the State Bar.
However, the trial court went on to find that Roberson had not been prejudiced. The court said: "I believe that [Roberson] created the situation and that the jury got to hear his version of the facts, that this was such a small part of the trial compared to what the victim had to say . . . that I think the jury just weighed everybody's credibility and they weren't swayed one way or the other, including the negative things, by the way, about these victims, and that they were properly instructed, and I'm going to deny the motion." (Italics added.)
We need not address whether retained counsel's performance was ineffective. We have independently reviewed the record and we agree with the trial court that Roberson has failed to demonstrate prejudice: a reasonable "probability sufficient to undermine confidence in the outcome." (People v. Williams, supra, 16 Cal.4th at p. 215.) That is, when we look at the entirety of the evidence — in the absence of Lorraine's testimony — we have no reason to doubt that the jury would still have returned a guilty verdict. This conclusion is based, in large part, on Roberson's own testimony.
The jury was instructed on the elements of aggravated assault as follows: "To prove that the defendant is guilty of this crime, the People must prove that:
Roberson's affirmative defense was that he assaulted Heard in order to defend Shannon. The jury was instructed on the defense of others as follows: "The defendant acted in lawful self-defense or defense of another if: [¶] 1. The defendant reasonably believed that he or [Shannon] was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." (CALCRIM No. 3470, italics added.) Roberson said that after he dropped off Shannon at the bus stop, he returned because he feared for her safety. But Roberson also said that when Heard fell to the ground, he kicked him. This testimony effectively eviscerated his defense of others claim, because Heard fell to the ground after Roberson had struck him in the head. In other words, Roberson essentially admitted that he had used more force than was necessary to defend Shannon, even if the jury believed the remainder of his (somewhat incredulous) testimony.
In sum, given the testimony of Heard, the corroborating testimony of other witnesses (Shannon as to the assault and the doctor as to the severity of the injuries), Roberson's incriminating text messages sent to Shannon after the assault, and Roberson's own testimony, we find no reasonable probability of a different result.
Nevertheless, in the motion for new trial, and in this appeal, Roberson argues that his trial counsel's conduct was so prejudicial that ineffective assistance of counsel may be presumed, citing United States v. Cronic (1984) 466 U.S. 648 (Cronic). We disagree.
In Cronic, a jury convicted a defendant on charges of mail fraud. The case involved the transfer of over $9 million in checks between multiple banks in two states over a four-month period. (Cronic, supra, 466 U.S. at p. 649.) Before trial was to begin, the trial court appointed the defendant "a young lawyer with a real estate practice" and allowed counsel only 25 days to prepare for trial. (Ibid.) The Court of Appeal had "reversed the conviction because it inferred that [the defendant's] constitutional right to the effective assistance of counsel had been violated." The Supreme Court disagreed and remanded the case for further proceedings. (Id. at pp. 652, 667.)
In Cronic, the Supreme Court held that: "While the Court of Appeals purported to apply a standard of reasonable competence, it did not indicate that there had been an actual breakdown of the adversarial process during the trial of this case." (Cronic, supra, 466 U.S. at pp. 657-658, italics added.) The Supreme Court explained that: "The Court of Appeals did not find that [defendant] was denied the presence of counsel at a critical stage of the prosecution. Nor did it find, based on the actual conduct of the trial, that there was a breakdown in the adversarial process that would justify a presumption that [defendant's] conviction was insufficiently reliable to satisfy the Constitution." (Id. at p. 662, italics added.)
The United States Supreme Court has since clarified that the exception for presumed prejudiced that it had alluded to in Cronic — but had not applied — is extremely narrow. (Bell v. Cone (2002) 535 U.S. 685 [counsel's failure to argue mercy in capital case was not complete failure to present defense for which prejudice can be presumed].) "When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete." (Id. at pp. 696-697, italics added.) The California Supreme Court has also deemed the Cronic exception to be quite limited: "Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage." (In re Visciotti (1996) 14 Cal.4th 325, 353 [counsel's failure to discover mitigating evidence did not result in ineffective assistance that undermined proper functioning of adversarial process].)
Here, Roberson's trial does not resemble a "breakdown of the adversarial process" as contemplated in Cronic, supra, 466 U.S. at pages 657-658. While Roberson's trial counsel may have been ineffective, Roberson has not shown that his counsel was absent at any stage of the proceedings or that his failure was "complete." (Id. at pp. 696-697.) In fact, the record reveals that Roberson's trial counsel cross-examined each of the prosecution's witnesses, called two witnesses, and made an argument supporting a claim of self-defense and reasonable doubt. While it is apparent that the jury rejected Roberson's defense, it cannot be said that Roberson's trial counsel completely failed to present one.
The judgment is affirmed.
O'LEARY, P. J. and IKOLA, J., concurs.