Filed 4/6/15 P. v. Ellis CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066893
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF140536A)
                   v.

ORLANDO JEROME ELLIS,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush and David R. Lampe, Judges.
         Dawn Schock, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
       This case analyzes the tensions that exist between a criminal defendant’s statutory
right to a speedy trial (Pen. Code, § 1381)1 and his Sixth Amendment right to competent
and adequately prepared trial counsel. Following a jury trial, appellant Orlando Jerome
Ellis stands convicted of resisting an executive officer (§ 69) and misdemeanor battery on
a parole agent (§ 243, subd. (b)).
       Prior to trial, appellant’s appointed counsel attempted to conduct a Pitchess2
hearing to discover information, if any, contained in the personnel file for the only
witness against appellant, his parole officer. Despite proper service of notice, the
Attorney General (the custodian of records) did not send a representative to the hearing.
Defense counsel re-filed the Pitchess motion.
       At trial call (Department 1), defense counsel stated she was not ready to proceed
to trial and wanted the Pitchess motion heard, which was scheduled for hearing in seven
days. Appellant, however, refused to waive time. The court, without addressing defense
counsel’s concerns regarding her lack of preparedness or the pending Pitchess hearing,
directed the parties to the trial department. Later that same day, defense counsel renewed
her request for a continuance with the trial judge (Department 7) because of the
unresolved Pitchess motion. The trial judge stated he could not address that issue
because it had been decided by the previous judge and a motion for reconsideration was
needed.
       Following his convictions, defense counsel followed up with the Pitchess hearing.
The court denied the motion after the prosecutor argued no “pending litigation” existed.
Defense counsel filed a motion for reconsideration and a motion for new trial, which the


1      All future statutory references are to the Penal Code unless otherwise noted.
2      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).



                                             2.
court denied without comment. At no time did an in camera review occur of the parole
officer’s personnel file.
       On appeal, we are asked to analyze whether appellant’s convictions should be
reversed because defense counsel was not adequately prepared for trial after the court
denied a continuance necessary to complete the pretrial Pitchess hearing. Despite
appellant’s refusal to waive time, we determine that the court abused its discretion in
neither addressing defense counsel’s concerns nor granting a reasonable seven-day
continuance to resolve the Pitchess motion. Because appellant was denied the
opportunity to have a pretrial Pitchess hearing, we conditionally reverse the judgment
and remand for the trial court to conduct a new Pitchess hearing consistent with this
opinion.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Since May 2011, appellant was a parolee assigned to parole agent Donette
Aguilera.3 In January 2012, Aguilera made a regular monthly visit with appellant at his
home in Kern County, and she wore her equipment belt, gun, handcuffs and pepper spray.
During the visit, appellant became argumentative with Aguilera after she instructed him
to report to the parole office in four days to complete a test. She left appellant’s house
and went to her vehicle.
       While Aguilera sat in her vehicle, appellant approached and spoke to her through
the open window, telling her not to be mad and she was “too pretty” to be mad at him.
Aguilera told him to step away, but appellant refused and became argumentative again.
Aguilera again told him to step away, and appellant said, “Fine. Fuck you, bitch,” and
pushed the top of her vehicle, a Ford Focus, causing the vehicle to move. Appellant
walked away and she told him to place his hands behind his back. Appellant complied

3     Aguilera was the only witness at trial. Appellant rested after the prosecution
concluded its case.



                                             3.
and Aguilera decided to handcuff him because his demeanor was bizarre, argumentative
and she felt threatened.
       When she attempted to place handcuffs on appellant, he pushed against her,
causing her to lose balance. Appellant said something like, “Oh, no. You’re not going to
arrest me today. Fuck that[.]” She lost her hold of him, and appellant walked away and
did not comply when Aguilera ordered him to stop.
       Aguilera called the Kern County Sheriff’s Department for assistance. A search
was conducted of appellant’s residence, and a live 12-guage shotgun shell was located
inside a closed cupboard. In addition to the shotgun shell, the cupboard held debris. No
firearm was located in appellant’s residence.4
       In September 2012, the Kern County District Attorney’s Office charged appellant
by information with resisting an executive officer (§ 69; count 1); unlawful possession of
ammunition (§ 30305, subd. (a); count 2); misdemeanor battery on a parole agent (§ 243,
subd. (b); count 3); and misdemeanor resisting a parole officer (§ 148, subd. (a)(1); count
4). It was further alleged as to counts 1 and 2 that appellant had three prior strikes
(§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and that he served a prior prison term
(§ 667.5, subd. (b)). Appellant was arraigned and pled not guilty to all charges and denied
all allegations.
       Following the one day jury trial, the jury found appellant guilty of counts 1 and 3,
and not guilty of count 2.5 The trial court found true the special allegations associated
with count 1.




4     The parties stipulated that appellant had been previously convicted of a felony and
was prohibited from owning or possessing a firearm or ammunition.
5      Pursuant to the trial court’s instruction, the jury did not determine appellant’s guilt
regarding count 4.



                                              4.
       The court sentenced appellant to an aggregate term of five years in prison on count
1, and 90 days in county jail for count 3, which was stayed pursuant to section 654. The
court imposed various fines and fees.
                                        DISCUSSION
I.     The Court Abused Its Discretion In Not Granting A Short Continuance.
       Appellant contends, inter alia, that the court erred in not continuing the trial date to
allow resolution of his pretrial Pitchess motion. He maintains the court’s error deprived
him of the right to a fair trial, the ability of his trial counsel to provide effective
assistance, and the ability to confront the only trial witness against him, Aguilera.
Accordingly, he seeks reversal of his convictions.
       A.      Background.
       Because of the importance of the history regarding appellant’s attempts to have his
Pitchess motion heard, we set forth in some detail the events occurring from October 25,
2012, through March 13, 2013.
       1.      The Attorney General’s office fails to appear.
       On October 29, 2012, appellant’s trial counsel, Janice Kim, filed a Pitchess motion
for discovery of records of inmate or citizen complaints made and/or maintained against
Aguilera pursuant to section 832.5. The hearing was scheduled for November 21, 2012.
On October 29, appellant waived his right to a speedy trial until November 26, 2012, plus
20 court days.
       Despite valid service of the Pitchess motion, no representative from the Attorney
General’s office appeared for the hearing on November 21, 2012. Appellant, who was in
custody, was not personally present at the Pitchess hearing.
       Kim asked for the case file to be transferred to the trial readiness hearing, which
was also scheduled on November 21, 2012. The court agreed. Appellant was present at
the trial readiness hearing. At that hearing, Kim and the prosecutor agreed to a trial
continuance until February 19, 2013. Appellant, however, stated that the Pitchess motion

                                                5.
should have been resolved. Appellant refused to waive time, stating he “would like to go
to trial court right now.” The court confirmed trial for November 26, 2012.
       2.     The trial is delayed.
       On November 26, 2012, Kim was unavailable because she was engaged in another
trial which was scheduled to last through December 25. Kim noted appellant did not
want to waive time, and she asked the court to trail the matter. The court trailed the
matter to December 10, 2012. That same day, Kim re-filed and served notice of the
Pitchess motion for a December 18, 2012, hearing.
       The December 10 trial date was again trailed to December 11, 2012, due to Kim’s
continuing unavailability.
       At the December 11, 2012, trial call, Kim stated she was not ready because she
had the pending Pitchess motion set for December 18, which she wanted heard before the
trial. She also stated appellant had informed her about a potential witness. The court
asked appellant if he wished to waive time “into February” so his attorney could
complete the Pitchess motion and look for the potential witness. Appellant refused to
waive time. Kim stated she had already tried to locate appellant’s witness without any
success. Without addressing Kim’s concerns regarding the Pitchess motion set one week
later, or her stated lack of readiness, the court (Department 1) directed the parties to the
trial department.
       The parties reported to the trial department (Department 7) that same day. Kim
renewed her request for a trial continuance based on the unresolved Pitchess motion. The
trial court denied the continuance, determining the matter was already ruled upon by
another judge and it could not reconsider that ruling without a proper motion for
reconsideration.
       The trial commenced.




                                              6.
         3.    Defense counsel seeks a posttrial Pitchess hearing.
         After appellant was convicted, Kim planned on attending the December 18, 2012,
Pitchess hearing but the court dropped it from the calendar following conclusion of the
trial.
         On December 27, 2012, Kim filed a motion to reset the hearing date for the
dropped Pitchess motion. The Pitchess motion was heard on February 7, 2013. The
court asked how the Pitchess motion could lead to discoverable or relevant material when
the only pending matter was sentencing. Kim stated it would be for purposes of a
possible motion for new trial, citing People v. Nguyen (2007) 151 Cal.App.4th 1473
(Nguyen) and Hurd v. Superior Court (2006) 144 Cal.App.4th 1100 (Hurd). The
prosecution opposed the motion, arguing no “pending litigation” existed to justify the
Pitchess motion. The court denied appellant’s motion without stating any reason. No in
camera review occurred of Aguilera’s personnel file.
         On February 25, 2013, Kim sought reconsideration of the denied Pitchess motion
and concurrently filed a motion for new trial. On March 13, 2013, the court (Department
2) heard and denied appellant’s motion for reconsideration of the Pitchess motion, noting
that there were “no new facts or law.” Later in the day, the court (Department 15) denied
appellant’s motion for a new trial without comment.
         B.    Standard of review.
         1.    Trial continuances.
         “Continuances shall be granted only upon a showing of good cause.” (§ 1050,
subd. (e).) Good cause requires a showing that the defendant and counsel have prepared
for trial with due diligence. (People v. Alexander (2010) 49 Cal.4th 846, 934.) Trial
courts have broad discretion regarding continuances. (Ibid.) The trial court may not
exercise its discretion in a manner that deprives the defendant’s attorney with a
“‘“reasonable opportunity”’” to prepare for trial because of the constitutional rights to
counsel and due process of law. (Ibid.) “‘[A]n unreasoning and arbitrary “insistence

                                             7.
upon expeditiousness in the face of a justifiable request for delay” violates the right to the
assistance of counsel.’ [Citations.]” (Id. at pp. 934-935.)
       Whether the denial of a continuance is so arbitrary as to violate due process must
be decided on the facts involved in each case. (People v. Courts (1985) 37 Cal.3d 784,
791.) The reasons presented to the trial judge at the time the request is denied must be
examined to determine if due process was violated. (Ibid.)
       2.      Right to speedy trial.
       “A criminal defendant’s right to a speedy trial is guaranteed by the Sixth
Amendment to the federal Constitution and article I, section 15 of the California
Constitution.” (People v. Lomax (2010) 49 Cal.4th 530, 552-553 (Lomax).) These
fundamental guarantees are set forth in various statutory enactments, including section
1382. (Lomax, supra, at pp. 552-553.) Under section 1382, a defendant in a felony case
must be tried within 60 days of his arraignment. (§ 1382.)
       A defendant’s right to a speedy trial is not absolute and may be curtailed under
appropriate circumstances. (Lomax, supra, 49 Cal.4th at p. 553.) The defendant’s trial
counsel, as part of his or her control over the procedural aspects of a case, ordinarily has
the authority to waive the defendant’s statutory speedy trial rights even over the client’s
objection. (Ibid.) “‘This is because statutory speedy trial rights are not among those
rights that are considered so fundamental that they are “beyond counsel’s primary
control.” [Citations.]’” (Ibid.) However, “‘appointed defense counsel lacks authority to
waive his or her client’s statutory speedy trial rights when the client personally objects to
a continuance and the sole reason for the continuance is defense counsel’s obligation to
another client. [Citations.]’ [Citation.]” (Ibid., original italics.)
       “[A] defendant may not be brought to trial too late. [Citations.]” (People v.
Maddox (1967) 67 Cal.2d 647, 652-653 (Maddox).) However, a defendant “may also not
be brought to trial too soon, i.e., without adequate opportunity for preparation of his
defense. [Citations.]” (Id. at p. 653.) A defendant’s trial counsel has the right to a

                                                8.
reasonable opportunity to prepare for trial, which is “‘as fundamental as is the right to
counsel.’ [Citations.]” (People v. Murphy (1963) 59 Cal.2d 818, 825.)
       3.     Pitchess motions.
       In some circumstances, a criminal defendant may compel the discovery of
evidence from an arresting law enforcement officer’s personnel file if it is relevant in
defending against the criminal charge. (People v. Mooc (2001) 26 Cal.4th 1216, 1219-
1220 (Mooc).) A two-step procedure is involved. First, the criminal defendant files a
written motion describing the type of records sought, supported by affidavits showing:
(1) good cause for its discovery or disclosure; (2) the materiality of the requested
information to the subject matter involved in the pending litigation; and (3) “stating upon
reasonable belief that the governmental agency identified has the records or information
from the records.” (Evid. Code, § 1043, subd. (b)(3); Mooc, supra, 26 Cal.4th at p.
1226.) This is known as a Pitchess motion. (Mooc, supra, at pp. 1225-1226.)
       Assertions in the affidavits “may be on information and belief and need not be
based on personal knowledge [citation], but the information sought must be requested
with sufficient specificity to preclude the possibility of a defendant’s simply casting
about for any helpful information [citation].” (Mooc, supra, 26 Cal.4th at p. 1226.) As
such, “a declaration by counsel on information and belief is sufficient to state facts to
satisfy the ‘materiality’ component of that section. [Citation.]” (Abatti v. Superior Court
(2003) 112 Cal.App.4th 39, 51.)
       Second, if the trial court finds good cause for discovery of the personnel records,
the court conducts an in camera review of the pertinent documents to determine which, if
any, are relevant to the case. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)
The court “discloses only that information falling within the statutorily defined standards
of relevance.” (Ibid.)
       Absent a showing of good cause, a law enforcement officer’s personnel records
are not relevant to any issue in the case. (People v. Collins (2004) 115 Cal.App.4th 137,

                                             9.
151.) Even upon a showing of good cause, the defendant is only entitled to information
that the court, after the in camera review, concludes is relevant. (People v. Johnson
(2004) 118 Cal.App.4th 292, 300.)
       With these standards in mind, we turn to the merits of appellant’s arguments.
       C.     Analysis.
       Appellant asserts his counsel unsuccessfully made three requests to continue the
trial to resolve the Pitchess motion. The first request occurred on November 21, 2012,
and the other two on December 11, 2012: one in Department 1 and the other in
Department 7. Appellant argues that the unresolved Pitchess motion was his best defense
strategy because Aguilera was the only witness against him, and forcing his trial counsel
to proceed without the benefit of that motion deprived him of effective assistance of
counsel and his ability to confront the only opposing witness.

       1.     Department 1 failed to consider defense counsel’s need to resolve the
              Pitchess motion.
       For clarity, we focus our analysis on the denials of continuance that occurred on
December 11, 2012. We note that Kim informed the court at trial call (Department 1)
that she was “not ready” and referenced the unresolved Pitchess motion that was already
filed, served and set for hearing in one week. The court failed to address Kim’s concerns
and, after having a dialogue with appellant, who refused to waive time, the court ordered
the parties to report to the trial department. The court failed to consider or address Kim’s
statement that she was not prepared. In so doing, the court failed to consider all of the
facts presented to it. (People v. Courts, supra, 37 Cal.3d at p. 791.) Under the
circumstances, the court abused its discretion in failing to address defense counsel’s lack
of readiness for trial. Two cases, Lomax, supra, 49 Cal.4th 530 and People v. Fontana
(1982) 139 Cal.App.3d 326, 333 (Fontana) support our conclusion.
       In Lomax, supra, 49 Cal.4th 530, the defendant’s appointed counsel requested a
trial continuance based on a lack of preparedness. The request for a continuance was not


                                            10.
so that he could concentrate on other cases. (Id. at p. 553.) There was nothing to suggest
that his representation had been incompetent or ineffective up until that time. (Ibid.) The
defendant refused to waive time and invoked his speedy trial rights. (Ibid.) The trial
court granted a continuance over the defendant’s personal objection, which was upheld
on appeal, based on defense counsel’s “unequivocal statement” he could not present the
case. (Ibid.)
       On appeal, our Supreme Court held that a defendant’s right to a speedy trial could
be waived by defense counsel, even over the defendant’s objection, so long as defense
counsel was acting “‘competently in the client’s best interest.’” (Lomax, supra, 49
Cal.4th at p. 553.) The Lomax court noted that this right could not be waived, however,
when the client personally objected to the continuance and “‘the sole reason for the
continuance is defense counsel’s obligation to another client. [Citations.]’ [Citation.]”
(Ibid.) The Lomax court upheld the trial court’s granting of the continuance over the
defendant’s objection because defense counsel was not prepared for trial and did not seek
a continuance in order to prepare other cases. (Ibid.)
       In Fontana, supra, 139 Cal.App.3d at page 328, the defendant appealed from an
order revoking probation. Revocation proceedings started after the defendant awaited
trial on a rape charge. (Ibid.) Prior to the revocation hearing, his counsel sought a
continuance on the ground that he was unprepared. (Ibid.) Defense counsel went into
considerable detail listing how and why he was unprepared, including his recent complex
trial cases that took considerable time, and his inability to read voluminous materials
necessary to cross-examine the only witness against his client. (Id. at pp. 332-333.) The
motion to continue was denied and the defendant’s probation was revoked after the
alleged rape victim testified at the probation revocation hearing. (Id. at pp. 328, 331.)
       On appeal, the Fontana court found an abuse of discretion when the lower court
denied the requested continuance. (Fontana, supra, 139 Cal.App.3d at pp. 332-333.)
The Fontana court rejected the People’s argument as irrelevant that defense counsel had

                                             11.
time to prepare, noting that a criminal defendant “is entitled to a prepared counsel,” and
not just one who had an opportunity to prepare. (Id. at p. 333.) The Court of Appeal
emphasized that “‘“‘counsel for a defendant has a right to reasonable opportunity to
prepare for a trial [which] is as fundamental as is the right to counsel.’ [Citations.]”’
[Citations.]” (Ibid.) The Fontana court found an abuse of discretion because the lower
court’s denial impaired the defendant’s fundamental rights “to the effective assistance of
counsel and his right to confront and cross-examine the sole adverse witness” against
him. (Ibid.) Because a fundamental constitutional right was impaired, the Fontana court
held that a discussion of prejudice was not warranted and it ordered reversal. (Id. at p.
334.) In reversing, the appellate court noted that a defense attorney could not obtain a
continuation solely on a representation of unpreparedness. (Id. at p. 335.)
       Here, Lomax establishes that the court would have acted appropriately had it
granted a short continuance so that Kim could finish her trial preparations. We cannot
say that the court’s opposite approach was likewise appropriate. Like in Fontana, Kim
did not merely state she was unprepared. Instead, Kim pointed to a specific deficiency in
her trial preparations when she referenced the unresolved Pitchess motion scheduled to
be heard in one week’s time. The court (Department 1) failed to address that concern.
Similar to Fontana, Kim was forced to proceed without the opportunity to be fully
prepared to cross-examine the only witness against her client.
       Respondent concedes, and we agree, that the requested continuance was not done
to benefit another client but so that Kim could be prepared for appellant’s trial.
Respondent also concedes, and we agree, that it was not the defense’s fault for the failure
to hear the Pitchess motion before trial. The record demonstrates that Kim acted
diligently in that regard, but nobody from the Attorney General’s office appeared on
November 21, 2012, despite proper service of notice.
       We are mindful that the situation presented the court with the inherent conflict
between a criminal defendant’s statutory right to a speedy trial versus his Sixth

                                             12.
Amendment right to competent and adequately prepared counsel. (See Townsend v.
Superior Court of Los Angeles County (1975) 15 Cal.3d 774, 782 (Townsend).)
However, the court was required to exercise its discretion in a manner that did not
deprive defense counsel with a “‘“reasonable opportunity”’” to prepare for trial. (People
v. Alexander, supra, 49 Cal.4th at p. 934 [the constitutional rights to counsel and to due
process of law require that defense counsel have a reasonable opportunity to prepare a
defense and respond to charges].) When defense counsel has been denied a reasonable
opportunity to prepare for trial, it is the same as a criminal defendant having no counsel
at all. (Maddox, supra, 67 Cal.2d at p. 652.) Under these circumstances, it was an abuse
of discretion for the court (Department 1) to deny a short continuance so that Kim could
finalize her trial preparation and have the Pitchess motion heard before trial. (Fontana,
supra, 139 Cal.App.3d at p. 333.)
       Respondent, however, maintains the court did not abuse its discretion, focusing on
appellant’s refusal to waive time as justification for the court’s failure to address Kim’s
concerns. Respondent notes that appellant was told “numerous times” about the need for
a time waiver so that the Pitchess motion could proceed, but appellant informed the court
that he wanted to go to trial immediately. Respondent contends that appellant made an
informed decision to proceed to trial and is now getting a “second bite at the apple” after
he “got the trial he wanted.”
       Respondent’s arguments are unpersuasive because they fail to balance the
competing constitutional interests, ignore the Sixth Amendment right to adequately
prepared counsel, and fail to consider that it is counsel who announces readiness for trial.
(Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 971
(Barsamyan) [construing when 10-day grace period is initiated under section 1382,
subdivision (a)(3)(B) in a misdemeanor case].) Appointed counsel manages the lawsuit
and has the final say regarding trial strategy in all but a few matters. (Faretta v.
California (1975) 422 U.S. 806, 812, fn 8.)

                                              13.
       Unlike a criminal defendant’s right to effective assistance of counsel, the
defendant’s statutory right to a speedy trial is neither absolute nor fundamental.
(Barsamyan, supra, 44 Cal.4th at p. 969; accord, Lomax, supra, 49 Cal.4th at p. 553.) A
criminal defendant’s statutory speedy trial right may be waived (in some circumstances)
even over the defendant’s objection in order to preserve the Sixth Amendment right to
effective assistance of counsel. (Barsamyan, supra, 44 Cal.4th at p. 969; accord, Lomax,
supra, 49 Cal.4th at p. 553; see New York v. Hill (2000) 528 U.S. 110, 114-115
[recognizing authority of defense counsel to waive specific federal statutory speedy trial
rights].)
       A criminal defendant’s waiver of his or her statutory speedy trial rights “occurs
when defense counsel consents to or requests a delay in the proceedings.” (Barsamyan,
supra, 44 Cal.4th at p. 969.) Consent to waive a defendant’s statutory speedy trial rights
may be express, implied or even inferred from silence when the defendant or his counsel
fails to make a timely objection to a postponement. (Ibid.; see § 1382, subd. (a)(2)(B),
(3)(B).)
       Here, at trial call on December 11, 2012, Kim never stated that she was “ready”
for immediate trial and, in fact, stated the opposite because of the unresolved Pitchess
motion scheduled to be heard in one week. Kim’s request for a trial continuance and
failure to declare ready was an implied waiver of appellant’s statutory speedy trial right.
(Barsamyan, 44 Cal.4th at p. 969.) After indicating that she was not ready for trial, the
court failed to follow up with Kim regarding her concern and, instead, only focused on
appellant’s refusal to waive time. Appellant’s statutory right to a speedy trial did not
trump the competing constitutional requirement that trial counsel have a meaningful
opportunity to prepare. (See Lomax, supra, 49 Cal.4th at p. 553.) In failing to address
Kim’s concerns, the court allowed appellant to control the litigation, which was the
domain of his counsel. (Faretta v. California, supra, 422 U.S. at p. 812, fn 8;
Barsamyan, supra, 44 Cal.4th at p. 969; Townsend, supra, 15 Cal.3d at p. 781 [when

                                            14.
appointed counsel is present in court, neither the criminal defendant nor another attorney
can be recognized].)
       Respondent cites one case, People v. Thomas (2012) 54 Cal.4th 908, 929, footnote
5 (Thomas), in opposition to the principle that appellant’s statutory speedy trial rights
were subordinate to his rights of a fair trial, effective assistance of counsel, and
confrontation. Thomas stated, in a footnote: “‘“‘The criminal process . . . is replete with
situations requiring the “making of difficult judgments” as to which course to follow.
[Citation.] Although a defendant may have a right, even of constitutional dimensions, to
follow whichever course he chooses, the Constitution does not by that token always
forbid requiring him to choose.’” [Citation.]’” (Thomas, supra, 54 Cal.4th at p. 929, fn.
5, quoting People v. Letner and Tobin (2010) 50 Cal.4th 99, 153.)
       The defendant in Thomas claimed that law enforcement failed to record his entire
conversation with them, and disputed as inaccurate what an officer wrote in his notes and
testified about in trial. The Thomas court examined whether a Trombetta6 violation
occurred. (Thomas, supra, 54 Cal.4th at p. 929.) The Supreme Court found no such
violation and stated the above quotation in passing after commenting that the defendant
was free to testify at trial about the interview if he chose to do so. (Ibid.) Thomas does
not alter our conclusion that appellant’s statutory speedy trial right was subordinate to his
fundamental Sixth Amendment right to adequately prepared counsel. (Barsamyan,
supra, 44 Cal.4th at p. 969; accord Lomax, supra, 49 Cal.4th at p. 553.)
       Under the circumstances of this case, and based on all of the facts then known to
the court, the court abused its discretion when it ignored Kim’s statement that she was
unprepared to go forward and denied a reasonable continuance to resolve the already
filed Pitchess motion. (People v. Sutton (2010) 48 Cal.4th 533, 547 [good cause to delay


6      California v. Trombetta (1984) 467 U.S. 479.



                                              15.
trial under section 1382 warranted for counsel’s need to prepare for trial]; Jennings v.
Superior Court of Contra Costa County (1967) 66 Cal.2d 867, 875-876 (Jennings);
Maddox, supra, 67 Cal.2d at p. 652; Fontana, supra, 139 Cal.App.3d at p. 333.)
       2.     Department 7 failed to exercise its discretion to consider a continuation.
       The court’s abuse of discretion was further compounded in Department 7 when the
parties appeared for trial later that same day. Kim renewed her concern regarding the
unresolved Pitchess motion, which the trial judge would not entertain, stating he could
not “reconsider a ruling of another judge of the Court without a proper motion for
reconsideration. That would have to be directed to the judge who ruled on the matter.”
       The trial court’s statement was in error. “When a matter is assigned for the
purposes of trial, the trial judge has the authority to grant a continuance for good cause
shown regardless of whether a continuance was denied by the supervising or presiding
judge.” (People v. Sherrod (1997) 59 Cal.App.4th 1168, 1174.) “[I]t is the obligation of
‘the trial judge to assure that a criminal defendant is afforded a bona fide and fair
adversary adjudication.’ [Citation.]” (Ibid.) “To carry out this duty, the trial judge has
the power to exercise reasonable control over all proceedings connected to the litigation
before him or her, which power includes exercising discretion to continue the trial.
[Citations.]” (Ibid.)
       As respondent concedes, the trial judge had the authority to grant a continuance
despite the denial in Department 1. (Sherrod, supra, 59 Cal.App.4th at p. 1174.) When a
trial court’s decision rests on an error of law, that decision is an abuse of discretion.
(People v. Superior Court (2008) 43 Cal.4th 737, 746, 755 [trial court abused its
discretion when it recused numerous prosecutors on a case based on an error of law].)
       Respondent argues that while Sherrod stands for the proposition that a court may
grant a continuance despite an earlier denial from another department, Sherrod does not
require such action. Respondent’s argument, however, is unpersuasive because the trial
court’s refusal to address the continuation prevented the defense from final trial

                                              16.
preparations. When a continuance is denied and it impairs a fundamental right, such as
defense counsel’s right to a reasonable opportunity to prepare for trial, the court has
abused its discretion. (Jennings, supra, 66 Cal.2d at pp. 875-876; Fontana, supra, 139
Cal.App.3d at p. 333.)
       Respondent further asserts that appellant was not prejudiced by Department 7’s
actions, arguing the trial court would have likely denied a continuance, even if it had
considered it, because the circumstances “had not changed” since the last denial. This
argument carries no weight because Kim was not prepared for trial. Those circumstances
had not changed. This was neither an issue of “forum shopping” as respondent contends
not where the doctrine of “comity” would support the trial judge’s reasoning. Kim had a
fundamental right to prepare adequately for her client and she was pursuing that right.
       Accordingly, as analyzed above, the court abused its discretion on December 11,
2012, as evidenced in both Departments 1 and 7, when it denied Kim a reasonable
opportunity to prepare for trial. (People v. Sutton, supra, 48 Cal.4th at p. 547; Jennings,
supra, 66 Cal.2d at pp. 875-876; Maddox, supra, 67 Cal.2d at p. 652; Fontana, supra,
139 Cal.App.3d at p. 333.)
II.    Reversal Is Required Because A Fundamentally Unfair Trial Resulted.
       Appellant contends a “miscarriage of justice” occurred due to an unfair trial. He
cites Sherrod for the proposition his convictions should be reversed without analyzing the
Watson7 standard of prejudice. (Sherrod, supra, 59 Cal.App.4th at pp. 1174-1175.)
       Respondent disagrees, arguing the holding in Sherrod is distinguishable because it
was within appellant’s power to continue the trial to hear the Pitchess motion so that it
cannot be said he was denied a fair trial. In the alternative, respondent contends appellant


7       People v. Watson (1956) 46 Cal.2d 818, 836 [question of prejudice for error of
state law is whether “it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.”]



                                             17.
has failed to demonstrate how the lack of a Pitchess hearing changed his trial at all, let
alone deprived him of due process of law.
        In Sherrod, supra, 59 Cal.App.4th 1168, the appellate court found an abuse of
discretion when the trial court denied a continuance motion after the self-represented
defendant, through no fault of his own, was deprived of timely court-ordered resources to
prepare for trial. (Id. at pp. 1173-1174.) The Sherrod court determined that the
defendant was denied a fair trial, which resulted in a miscarriage of justice. As such, the
Sherrod court reversed without analyzing prejudice. (Id. at pp. 1174-1175.)
        Here, the court failed to address appellant’s Sixth Amendment right to competent
and adequately prepared counsel. (Lomax, supra, 49 Cal.4th at p. 556; Maddox, supra,
67 Cal.2d at pp. 653-654.) Because Kim was not permitted to resolve the Pitchess
motion before trial regarding the only witness against her client, a fundamentally unfair
trial occurred resulting in a “miscarriage of justice.” (Sherrod, supra, 59 Cal.App.4th at
pp. 1174-1175; see Cal. Const., art. VI, § 13.) Thus, reversal is required regardless of the
state of the remaining evidence against appellant. (Fontana, supra, 139 Cal.App.3d at p.
334 [“Denial of fundamental constitutional rights is not excused by want of prejudice.”];
accord Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [denial of basic
constitutional protections causes “structural error” and requires automatic reversal].)
        Even if reversal was not automatic, as respondent asserts, reversal is still required
under Chapman v. California (1967) 386 U.S. 18. Because this was an error implicating
a federal constitutional right, in order to affirm the judgment, we must declare that the
error was harmless beyond a reasonable doubt. (Id. at p. 24.) Because Kim was not
ready for trial in light of the unresolved Pitchess motion, we cannot declare that the
court’s abuse of discretion was harmless beyond a reasonable doubt. (Ibid.) This is
especially true because the court never conducted an in camera review of Aguilera’s
personnel file rendering it impossible to determine what effect, if any, it would have had
at trial.

                                              18.
       The differing standards used to analyze a Pitchess motion before trial versus
posttrial also demonstrates the fundamental unfairness and miscarriage of justice that
resulted from the court’s denial of a continuance. The pretrial Pitchess standard employs
a relatively low threshold for discovery. (City of Santa Cruz v. Municipal Court (1989)
49 Cal.3d 74, 83.) Before trial, a defense counsel’s declaration in support of a Pitchess
motion must propose a defense or defenses to the pending charges and articulate how the
sought after discovery may lead to relevant evidence or itself be admissible as
impeachment evidence. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.)
       A Pitchess motion may be brought in the context of a posttrial motion, but it
becomes subject to a different analysis of good cause and materiality than a pretrial
motion. (See Nguyen, supra, 151 Cal.App.4th at p. 1478; Hurd, supra, 144 Cal.App.4th
at pp. 1105, 1108.) Posttrial, the court determines whether the information is material
based on the subject matter of whatever is involved in the pending litigation, i.e., a
habeas corpus petition (Hurd, supra, 144 Cal.App.4th at p. 1111) or a motion for new
trial (Nugyen, supra, 151 Cal.App.4th at p. 1477). In the context of a posttrial Pitchess
motion brought to support a motion for new trial, the proper standard of review is
“whether a reasonable probability existed that disclosure of the requested records would
have led to a different result at trial.” (Nugyen, supra, at p. 1478.)
       These differences highlight how the court’s abuse of discretion resulted in a
fundamentally unfair trial even beyond Kim’s inability to prepare. It is not enough to say
that appellant had his Pitchess motion heard posttrial because it was reviewed under a
different, and more stringent, standard then it would have been pretrial.
       Because we reverse due to a pretrial abuse of discretion, respondent’s argument is
without merit that it is speculative what admissible evidence, if any, might be discovered
during an in camera review of Aguilera’s personnel file. Appellant’s claim will not be




                                             19.
rejected for this reason. To the contrary, it was the pretrial failure of the court to allow
such an inquiry that caused a fundamentally unfair trial. 8
III.   Standard of review on remand.
       When a defendant is denied a discovery motion, the proper standard of analysis
regarding prejudice is whether there is “a reasonable probability that the outcome of the
case would have been different had the information been disclosed to the defense.”
(People v. Hustead (1999) 74 Cal.App.4th 410, 422.)
       Here, because no pretrial Pitchess motion was heard, we are unable to review a
decision from the lower court regarding whether appellant has shown good cause for an
in camera review or whether discoverable material in Aguilera’s personnel file was
improperly withheld. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221 [trial
court’s decision regarding a Pitchess motion is reviewed under an abuse of discretion
standard]; People v. Ochoa (2011) 191 Cal.App.4th 664, 675.) As such, we remand for
the trial court to conduct a pretrial Pitchess hearing consistent with this decision.
       Respondent argues that appellant has not shown sufficient “good cause” for the
Pitchess motion to be granted, contending that appellant provided “an alternate factual
scenario that is not credible” and insufficient to obtain an in camera review. On remand,
however, we note the relatively low threshold used to find good cause to grant a pretrial
Pitchess motion. (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83; see
also Abatti v. Superior Court, supra, 112 Cal.App.4th at p. 51 [counsel’s declaration on
information and belief is sufficient to state facts to satisfy the materiality requirement for
a Pitchess motion].)




8      In light of our reversal based on pretrial abuse of discretion, we do not address the
parties’ remaining arguments regarding whether the court abused its discretion in denying
appellant’s various posttrial motions.



                                              20.
       If appellant can show good cause to grant the Pitchess motion under the pretrial
standard, the trial court shall conduct an in camera review of Aguilera’s personnel file. If
admissible information bearing on Aguilera’s honesty is discovered, the trial court shall
allow appellant an opportunity to demonstrate prejudice and order a new trial if prejudice
is shown.
                                      DISPOSITION
       The judgment is conditionally reversed and remanded. The trial court is directed
to conduct a Pitchess hearing and determine if appellant has shown good cause for an in
camera review consistent with this opinion. Upon a showing of good cause, the trial
court shall review Aguilera’s personnel file and order discovery of any information
bearing on Aguilera’s honesty that could lead to admissible evidence helpful to appellant.
The trial court shall allow appellant an opportunity to demonstrate prejudice, and order a
new trial if prejudice is demonstrated. If appellant cannot establish good cause, or no
relevant information is contained in Aguilera’s personnel file, or appellant cannot
establish prejudice, the judgment shall be reinstated as of the date of the trial court’s
ruling to that effect.

                                                                   _____________________
                                                                         LEVY, Acting P.J.
WE CONCUR:


 _____________________
PEÑA, J.


 _____________________
SMITH, J.




                                             21.
