Filed 3/26/14 P. v. Lyon CA1/5

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




THE PEOPLE,

         Plaintiff and Respondent,                                          A137363

         v.                                                                 (San Mateo County
                                                                            Super. Ct. No. SC075135A)
AUDLEY BARRINGTON LYON, JR.,

      Defendant and Appellant.
_____________________________________/

         The trial court denied appellant Audley Barrington Lyon, Jr.’s, request to
discharge retained counsel and the jury convicted him of possession of cocaine base for
sale (Health & Saf. Code, § 11351.5).1 On appeal, appellant contends the court erred by
denying his request. He claims the court “failed to properly consider all factors relevant
to [his] request to discharge retained counsel” and that his request was “reasonable under
the facts of this case.”
         We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         Law enforcement officers executed a search warrant at appellant’s residence in
late October 2011 and found 19.31 grams of cocaine base, “two digital scales, cell


1
       Unless otherwise noted, all further statutory references are to the Health and
Safety Code.
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phones, and $170.00 in multiple denominations.” In November 2011, the People charged
appellant with possession of cocaine base for sale (§ 11351.5) and alleged various
sentencing enhancements (Pen. Code, § 1203, subd. (e)(4), § 11370, subd. (a)). Retained
counsel represented appellant at the preliminary hearing in February 2012, where the
court held him to answer the charge. Appellant was arraigned in mid February 2012 and
the court set a May 2012 trial date. In early May 2012, retained counsel moved to
suppress but later withdrew the motion, citing “problems with our witness.” The court
continued trial from May to August 2012 and then again to October 15, 2012. In early
October, the court denied retained counsel’s motion to disclose the identity of a
confidential informant.
       On October 15, 2012, the case was assigned to a courtroom for trial. The next
day, the prosecutor filed in limine motions and a proposed witness list. The court
informed the parties trial could not begin until the next day because the court was “still in
evidence” on another trial but denied retained counsel’s request to continue trial “until
November[.]” On October 17, 2012, the parties discussed the prosecution’s plea offer.
When the court asked appellant whether he understood the offer, appellant stated he did
not accept the plea agreement and said, “I would like to request a new attorney because
I’m unable to afford this one at this time and he’s here for this portion of the proceedings,
your Honor.”
       The court explained, “[t]here’s no plea agreement unless you actually enter a plea”
and the following exchange occurred:
       “THE DEFENDANT: But on my request for a new attorney—
       “THE COURT: Well, you—as I understand, you hired your attorney so . . . that is
your attorney.
       “THE DEFENDANT: I’m unable to afford him for this portion of the
proceedings, your Honor.
       “THE COURT: Well, he is your attorney and that’s where we are. So—and he
isn’t making a motion to withdraw.
       ...

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        “THE DEFENDANT: I don’t have the right to fire and hire my—
        “THE COURT: Sure, you can hire another attorney. We’re here at trial so it’s
kind of late in the day to do that.
        “THE DEFENDANT: Unless I find just cause.
        “THE COURT: Well, that’s not exactly the—you’re not making a motion to
withdraw, are you?
        “[RETAINED COUNSEL]: Your Honor, I’m not going to do that to the Court. I
understand—you know, I’m here.
        “THE COURT: Okay. So that’s where we are, so—
        “[RETAINED COUNSEL]: Your Honor, there are some different opinions about
this case between my client and I. He wants to fire me. If the Court allows that, I’m not
going to object, but I’m not going to seek to withdraw because I’m not getting paid.
        “THE COURT: Understood. We don’t do that on the day of trial, obviously.
        “[RETAINED COUNSEL]: Yeah.
        “THE COURT: I understand Mr. Lyon wants to hire another attorney. If he had
another attorney here and ready to go, that would be one thing, but I don’t think that’s the
case.
        “THE DEFENDANT: I’ve been trying to request this for—before we end up to
this stage. . . . I requested a new attorney for like a month or two ago actually.
        “THE COURT: I don’t see any notes for that.
        “THE DEFENDANT: There wasn’t any because I relied on my attorney to do so,
your Honor.
        “THE COURT: Well, there would be a note of that, Mr. Lyon, and I’m not seeing
anything in here.
        “THE DEFENDANT: This is the only time I had a chance to voice my opinion,
your Honor, or get a chance to voice anything, your Honor.
        “THE COURT: No, that would appear in the notes here, Mr. Lyon. That would
be in the Court notes if you had asked the Court at some point to have some time to hire
an attorney. But here we are on the day of trial. This matter has been going on . . .

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       “[RETAINED COUNSEL]: A year.
       “THE COURT: A year?
       “[Prosecutor]: Yeah.
       “THE COURT: There we are.”
       Later that morning, appellant rejected the plea offer and the court heard in limine
motions. When given a chance to speak, appellant insisted the search warrant be litigated
at trial and claimed the affidavit in support of the search warrant lacked probable cause.
The court explained the search warrant was not an issue for the jury. Just before the court
called the prospective jury panel, appellant asked to “say something[.]” He said, “I have
just cause why I need a new attorney” and the following discussion occurred:
       “THE COURT: We have been down that road before.
       “THE DEFENDANT: But I didn’t have the paperwork with me right now, Your
Honor, for you to look at. . . . If you notice on the paperwork, Your Honor, those are
letters from my attorney with dates of changing court dates, Your Honor. There is one
that is dated for the 25th of October, which I have no court date on that date, and I feel
like my lawyer is being sabotaging me [sic] because if I miss the court date on the 15th to
show up on the 25th I would be more than likely be in handcuffs on the other side with a
warrant for my arrest. . . . I feel like I have been sabotaged. He said he had 48 hours to
address the issue about the house beating. He did no search thing [sic] until today when I
have no option—I have no chance of introducing the evidence, Your Honor. This—it—
there is that and the tapes as well and everything else I brought to attention, which he
failed to bring to the Court’s attention, Your Honor.
       “THE COURT: Okay. Mr. Lyon, you don’t have a court appointed attorney.
You have hired your attorney. And as we have discussed earlier today, this case has been
pending. I think [the prosecutor] and your attorney agreed it has been pending about a
year. . . . And I don’t know anything about these dates. Frequently dates are vacated.
But one of these dates goes back to August and I don’t know—
       “THE DEFENDANT: That was the one that went back to August. It was a
motion to suppress hearing, which my lawyer didn’t follow through with either.

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       “THE COURT: He said it was vacated. I see that that was also a jury trial date,
which I presume was continued. Then it was set for October 15th as we know earlier this
week. . . . So, I don’t know really—
       “THE DEFENDANT: Because if I didn’t come to court to find out my exact court
date, I would have missed the one for the 15th, which was Monday.
       “THE COURT: Again, Mr. Lyon, it isn’t really relevant to what we are talking
about here. So—
       “THE DEFENDANT: The process I have been going through hasn’t been fair,
Your Honor. I haven’t been able to express the other side of the case. It’s going to show
to jury [sic] like it is poisonous fruit like it’s going to be one sided, Your Honor.
       “THE COURT: I don’t know what you mean. In terms of poisonous fruit has to
do with other issues that are not—
       “THE DEFENDANT: Because I am unable to bring the other side of the case,
such as police conduct under-handed this whole entire search and search warrant and
everything, Your Honor. I haven’t got a chance to bring that effort and my lawyer had a
chance on numerous occasions and still did not do it.
       “THE COURT: We talked about that earlier. . . .” The court advised appellant not
to disrupt the courtroom in front of prospective jurors. The parties completed jury
selection on October 18, 2012, and the prosecution began calling witnesses.
       During trial, appellant admitted the prior conviction allegations and the jury found
him guilty of possessing cocaine base for sale (§ 11351.5). The court sentenced appellant
to three years in county jail (Pen. Code, § 1170, subd. (h)), suspended one year of that
sentence, and ordered him placed on supervised release during that time.
                                       DISCUSSION
       Appellant’s sole contention on appeal is the court erred by denying his request to
discharge retained counsel. “[A] defendant may discharge his retained counsel . . . at any
time with or without cause.” (People v. Lara (2001) 86 Cal.App.4th 139, 152 (Lara).)
“The right to discharge retained counsel is not, however, absolute. The trial court may
deny a request to discharge retained counsel ‘if discharge will result in ‘significant

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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].’ [Citations.] ‘[T]he “fair
opportunity” to secure counsel of choice provided by the Sixth Amendment “is
necessarily [limited by] the countervailing state interest against which the [S]ixth
amendment right provides explicit protection: the interest in proceeding with
prosecutions on an orderly and expeditious basis, taking into account the practical
difficulties of ‘assembling the witnesses, lawyers, and jurors at the same place at the
same time.’”’ [Citations.]” (People v. Keshishian (2008) 162 Cal.App.4th 425, 428
(Keshishian).)
       To determine whether to discharge retained counsel, the trial “court should
‘balance the defendant’s interest in new counsel against the disruption, if any, flowing
from the substitution.’ [Citation.] In so doing, 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.”’ [Citations.]”
(Keshishian, supra, 162 Cal.App.4th at p. 429.) We review the court’s denial of a motion
to discharge retained counsel for abuse of discretion. (People v. Ortiz (1990) 51 Cal.3d
975, 983-984.)
       Numerous courts have held a request to discharge appointed counsel is untimely
when made on the first day of trial. (Keshishian, supra, 162 Cal.App.4th at p. 429
[request to discharge appointed counsel untimely when “made on the day set for trial
after the case had been pending for two and a half years”]; People v. Hernandez (2006)
139 Cal.App.4th 101, 109 [request properly denied where made “almost immediately
before jury selection was to begin”]; People v. Turner (1992) 7 Cal.App.4th 913, 919
(Turner) [request made on the day of trial was untimely]; People v. Lau (1986) 177
Cal.App.3d 473, 479 [request untimely when made “the moment jury selection was to
begin”]; see also People v. Maciel (2013) 57 Cal.4th 482, 512-513 [request properly
denied when trial was “imminent” and where the defendant “had no substitute counsel in
mind”].) It is well settled “‘[t]he right to counsel cannot mean that a defendant may


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continually delay his day of judgment by discharging prior counsel[.]’” (Keshishian,
supra, 162 Cal.App.4th at p. 429.)
       Here, the court did not abuse its discretion by concluding appellant’s request to
discharge retained counsel was untimely. Appellant made his request: (1) months after
he had been arraigned; (2) days after the case had been assigned to a courtroom for trial;
(3) on the first day of trial, after he rejected the plea bargain and the court had heard in
limine motions; and (4) shortly before the court called the jury panel into the courtroom.
Had the court granted appellant’s request, “[a]n indefinite continuance would have been
necessary, as appellant had neither identified nor retained new counsel.” (Keshishian,
supra, 162 Cal.App.4th at p. 429.) As appellant concedes, witnesses whose appearances
had already been scheduled would likely have been inconvenienced by a delay. (Ibid.)
That appellant had lost confidence in his attorney did not constitute good cause for
granting a continuance where the resulting delay would have disrupted the judicial
process.2 (Ibid.)
       Appellant claims the court “failed to properly consider all factors relevant to [his]
request to discharge retained counsel” and seems to suggest the court was required to
state the factors it considered on the record before denying his request. We disagree.
The court is not required “to make a finding that the requested substitution would disrupt
the judicial process.” (Turner, supra, 7 Cal.App.4th at p. 919, fn. 8.) Moreover, as the
reviewing court, we imply all findings reasonably supported by the record supporting the
trial court’s ruling. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Here, the record

2
       Appellant’s reliance on Lara, supra, 86 Cal.App.4th 139 and People v. Munoz
(2006) 138 Cal.App.4th 860 (Munoz) is unavailing. In Lara, while the defendant made
his request on the first day of trial, the Lara court concluded he “informed the court of his
concerns at the first possible opportunity.” (Lara, supra, 86 Cal.App.4th at p. 163.)
Here, and in contrast to Lara, appellant did not inform the court of his desire to discharge
retained counsel at the earliest possible opportunity. Appellant’s main concern was the
search warrant was improper, yet he waited several months after retained counsel
withdrew the suppression motion to inform the court of his concerns. In Munoz, the
request to discharge retained counsel occurred postconviction, after the jury had been
discharged, when there was less urgency in the court proceedings. Here, the court had
heard in limine motions and was ready to call a jury panel into the courtroom.
                                               7
supports an inference the court evaluated appellant’s reasons for wanting to discharge
appointed counsel and balanced those reasons with the disruption flowing from
substituting new counsel. Finally, we presume the trial judge knew and applied the
correct legal standards. (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.)
       The denial of appellant’s request to discharge retained counsel was not an abuse of
discretion.
                                     DISPOSITION
       The judgment is affirmed.




                                                       _________________________
                                                       Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




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