Filed 1/12/15 P. v. Antolin CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138465
v.
JESSE LIN ANTOLIN,                                                   (San Mateo County
                                                                     Super. Ct. No. SC073522A)
         Defendant and Appellant.


         Following a jury trial, defendant was convicted of possession of
methamphetamine for sale. Defendant contends the trial court abused its discretion in
denying a continuance to allow him to retain private counsel and refusing to approve a
plea bargain. We affirm.
                                      PROCEDURAL BACKGROUND
         In May 2011, the San Mateo County District Attorney filed an information
charging defendant with possession of methamphetamine for sale (Health & Saf. Code, §
11378) with five prior convictions for the same offense (Pen. Code, § 1203.07, subd.
(a)(11);1 Health & Saf. Code, § 11370.2, subd. (c)). The information also alleged five
prior prison-term commitments (§ 667.5, subd. (b)).
         A jury found defendant guilty as charged, and the trial court made findings
regarding the alleged priors. The court sentenced defendant to jail for 11 years. This
appeal followed.


1
    All further undesignated statutory references are to the Penal Code.

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                                 FACTUAL BACKGROUND
          In January 2011, police performed a probation search of a motel room rented by
defendant and occupied by defendant and his girlfriend. The room contained a “large
number” of sealed nitrous oxide canisters, a freezer bag containing 27.31 grams of
methamphetamine, another bag containing 1.63 grams of methamphetamine,2 a large
quantity of money, and a bag containing numerous DMV title papers for vehicles and
over a hundred keys. The jury was informed by stipulation that defendant had previously
been convicted three times of possession of methamphetamine for sale.
          A witness for the defense testified that he worked with defendant recycling cars
purchased at auction and that it is a cash business. Defendant’s girlfriend testified she
and defendant consumed methamphetamine in the motel room and she was not aware of
any drug sales by defendant.
                                         DISCUSSION
I.        The Trial Court Did Not Abuse Its Discretion In Denying a Continuance
          Defendant contends the trial court abused its discretion in denying his request for a
continuance of trial so he could retain counsel. We reject the claim.
          A.     Background
          In May 2012, defendant was declared incompetent to stand trial and committed to
Napa State Hospital. On August 1, he was found competent to stand trial. Trial was set
for October 22. On October 22, defendant requested a continuance to enable him to
retain private counsel. He asserted, “I had just got an okay with family and friends that
they were going to support me in this endeavor. And I spoke with two, Mr. Kass and also
Eric Saffire, and one of the two will be hired if the Court’s permitting.” He also asserted,
“I’m not requesting time to get a new attorney. I am requesting that I get a new attorney
and that I can pay him tomorrow. I don’t need time to hire the attorney. I just need the
okay to hire the attorney.” The prosecution objected and stated, “we are ready to




2
     The smaller bag of methamphetamine was discovered later by the hotel staff.

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proceed.” The criminal presiding judge denied defendant’s motion, stating “It is
untimely. The District Attorney subpoenaed witnesses and are ready to proceed.”
       Later on October 22, 2012, defendant’s case was assigned for trial. On October
23, defendant failed to appear and a bench warrant was issued. On October 24, defendant
appeared and trial was continued to October 29. On October 29, the case was trailed to
October 31. On October 31, a defense motion to continue was granted and trial was
continued to November 5. On November 5, trial was confirmed and set for November 6,
and trial commenced that day.
       B.     Analysis
       “The right to the effective assistance of counsel ‘encompasses the right to retain
counsel of one’s own choosing. [Citations.]’ [Citation.] Underlying this right is the
premise that ‘chosen representation is the preferred representation. Defendant’s
confidence in his lawyer is vital to his defense. His right to decide for himself who best
can conduct the case must be respected wherever feasible.’ ” (People v. Courts (1985) 37
Cal.3d 784, 789 (Courts).) “In view of the importance of these rights and the severe
consequences which flow from their violation, the trial courts are required to ‘make all
reasonable efforts to ensure that a defendant financially able to retain an attorney of his
own choosing can be represented by that attorney.’ [Citation.] To this end, ‘the state
should keep to a necessary minimum its interference with the individual’s desire to
defend himself in whatever manner he deems best, using any legitimate means within his
resources.’ ” (Id. at p. 790.)
       “Generally, the granting of a continuance is within the discretion of the trial court.
[Citations.] A continuance may be denied if the accused is ‘unjustifiably dilatory’ in
obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’
[Citation.]” (Courts, supra, 37 Cal.3d at pp. 790–791.) “However, ‘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.’ [Citation.] For this reason, trial courts should
accommodate such requests–when they are linked to an assertion of the right to retained
counsel–‘to the fullest extent consistent with effective judicial administration.’ ” (Id. at


                                               3
p. 791.) “In deciding whether the denial of a continuance was so arbitrary as to violate
due process, 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.” ’ ” (Ibid.)
       In Courts, the California Supreme Court held the trial court’s failure to grant the
requested continuance constituted error where the defendant made diligent efforts “(1) to
secure counsel of his own choosing before the date of trial, and (2) to apprise the court of
his wishes at the earliest possible time.” (Courts, supra, 37 Cal.3d at pp. 795–796.)
Significant in Courts were the following facts: After two months of effort, the defendant
had completed his financial arrangements and retained private counsel five days before
trial was to start; the defendant unsuccessfully moved for a continuance eight days before
trial; and the defendant attempted to calendar a renewed motion four days before trial, but
the renewed motion was not actually heard until the trial date, when the motion was again
denied. (Id. at pp. 787–789.) The Supreme Court emphasized, “a lawyer-client
relationship had been established” five days before trial if not earlier; thus, “the court was
not confronted with the ‘uncertainties and contingencies’ of an accused who simply
wanted a continuance to obtain private counsel.” (Id. at p. 791.)
       Courts also emphasized the absence of “circumstances which warranted the
limitation of appellant’s right to counsel based on considerations of judicial efficiency.”
(Courts, supra, 37 Cal.3d at p. 794.) The court explained, “The record fails to show that
a continuance would have significantly inconvenienced the court or the parties.
[Citation.] There was no evidence that the Shasta County Superior Courts were
particularly congested during this period. If anything, the availability of two judges to try
the case . . . suggests the contrary. No mention of inconvenience to jurors . . . was ever
made. . . . [¶]In addition, the prosecutor failed to express any valid concern about an
inconvenience to witnesses which might have resulted if a continuance had been
granted.” (Id. at pp. 794–795.)
       In the present case, the trial court’s decision is supported by the absence of a
showing of diligence comparable to that in Courts. First, although defendant had been
declared competent two months earlier, he only sought a continuance on the day


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scheduled for trial. (Courts, supra, 37 Cal.3d at p. 792, fn. 4 [the defendant’s
“continuance request should be contrasted with the eve-of-trial, day-of-trial, and second-
day-of-trial requests”].) Courts noted that courts considering last minute requests for
continuances had “found the lateness of the continuance request to be a significant factor
which justified a denial where there were no compelling circumstances to the contrary.”
(Ibid.; see also People v. Jeffers (1987) 188 Cal.App.3d 840, 850 [the defendant “did not
present the trial court with compelling circumstances supporting his late request for
continuance” made on the day of trial].) Second, although defendant identified two
potential counsel and asserted one could be retained the next day, counsel was not present
and had not actually been retained, so it was uncertain how quickly the case could
proceed with new counsel. (Courts, at p. 791, fn. 3 [“These facts are to be sharply
contrasted with cases which have upheld the denial of a continuance on the ground that
participation by a particular private attorney was still quite speculative at the time the
motion for continuance was made.”].) Third, defendant failed to present a declaration
demonstrating his diligence and attesting to the facts supporting his request for a
continuance. (Id. at p. 788 [the defendant filed a “declaration summarizing the steps
taken to secure retained counsel”]; see § 1050, subd. (b) [“To continue any hearing in a
criminal proceeding, including the trial, (1) a written notice shall be filed and served on
all parties to the proceeding 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”].)
       We recognize that the trial court failed to identify particular circumstances
showing a continuance would have “significantly inconvenienced the court or the
parties.” (Courts, supra, 37 Cal.3d at p. 794.) Neither the court nor the prosecutor
referred to court congestion, substantial inconvenience to witnesses or jurors, or any other
particular circumstances supporting denial of the continuance. The court simply
referenced the prosecution’s readiness and witness subpoenas. Nevertheless, because “ ‘a
trial court should be presumed to have acted to achieve legitimate objectives’ ” (Ajaxo
Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 45), we presume the trial court’s


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denial of a continuance was motivated by “considerations of judicial efficiency.”
(Courts, at p. 794.) The Legislature provided in adopting section 1050, subdivision (a),
“The welfare of the people of the State of California requires that all proceedings in
criminal cases shall be set for trial and heard and determined at the earliest possible time.
To this end, the Legislature finds that the criminal courts are becoming increasingly
congested with resulting adverse consequences to the welfare of the people and the
defendant. Excessive continuances contribute substantially to this congestion and cause
substantial hardship to victims and other witnesses. . . .” We presume considerations of
these sorts were the basis for denial of defendant’s untimely request for a continuance. 3
       In light of the extreme untimeliness of defendant’s request for a continuance,
defendant’s failure to make any showing of diligence, and the lack of a showing that
counsel was actually available, we cannot say that denial of a continuance was “so
arbitrary as to violate due process.” (Courts, supra, 37 Cal.3d at p. 791.) The trial court
did not abuse its discretion.
II.    The Trial Court Did Not Abuse Its Discretion In Refusing to Approve The Plea
       Bargain
       Defendant contends the trial court abused its discretion in refusing to approve his
plea pursuant to a plea bargain. We reject the claim.
       A.     Background
       On August 21, 2012, the prosecutor offered to defendant that he could plead guilty
to the charged offense and admit certain special allegations for an “indicated sentence of
nine years, three of which would be serving [defendant’s] 1170(h) sentence, six on
supervised community release.” The prosecutor said the offer would expire on
September 14.




3
 Defendant points out that the trial court subsequently granted other continuances that
delayed trial for two weeks. However, those continuances—due to defendant’s failure to
appear and a defense motion for a continuance—do not show that no concerns of judicial
efficiency justified the October 22 denial of a continuance.

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       On November 6, 2012, defendant sought to plead pursuant to the prosecutor’s
August 21 offer. Defense counsel explained that defendant had only just understood that,
under the prosecutor’s offer, he would be serving his time in jail rather than prison. The
prosecutor appeared willing to continue to extend her last offer to defendant; she
indicated that a recent United States Supreme Court opinion could be read to suggest that
defendant had a right to accept a plea bargain if it had been miscommunicated to him.4
       The trial court rejected defendant’s assertion that he misunderstood the offer,
pointing out that defense counsel is “an extremely thorough, thoughtful attorney” who
must have explained the offer to defendant. In fact, defense counsel confirmed he told
defendant the sentence would be served in jail, but defendant nonetheless misunderstood.
The trial court stated that defendant could plead to the charges without the benefit of a
plea bargain, but it was too late to plead pursuant to the expired plea offer. The record
reflects that prospective jurors were waiting while the discussion about a plea occurred.
       B.     Analysis
       On appeal, the People argue the trial court properly rejected defendant’s factual
claim that he did not understand the terms of the prosecution’s plea offer. While not
accepting the trial court’s credibility determination, defendant does not argue we should
reject it. Instead, defendant contends it was an abuse of discretion for the trial court to
refuse to approve the plea bargain on the ground it was untimely. We disagree.
       “Judicial approval is an essential condition precedent to any plea bargain worked
out by the defense and the prosecution.” (People v. Cardoza (1984) 161 Cal.App.3d 40,
45; see also § 1192.5.) “Although it is within the discretion of the court to approve or
reject the proffered offer, the court may not arbitrarily refuse to consider the offer.”
(People v. Smith (1971) 22 Cal.App.3d 25, 30; accord People v. Cobb (1983) 139
Cal.App.3d 578, 584 (Cobb).)


4
  The case citation is not in the transcript, and the parties have not cited any such decision
on appeal. It appears the reference may be to Missouri v. Frye (2012) 132 S.Ct. 1399,
1410, decided in March 2012, in which defense counsel was found ineffective for failing
to communicate the prosecutor’s written plea offer to the defendant.

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       The Cobb decision is instructive. Cobb considered whether a trial court could
reject as untimely a negotiated disposition presented for approval after a readiness
conference. In Cobb, a local court rule provided that any plea after the readiness
conference would have to be “ ‘straight up to the charges as alleged without any
conditions.’ ” (Cobb, supra, 139 Cal.App.3d at p. 581.) Nevertheless, after the readiness
conference the defendant and prosecutor entered into a plea bargain and attempted to
obtain court approval of the negotiated disposition. The presiding judge rejected the plea
bargain as untimely. (Id. at p. 582.) On appeal, the defendant asserted the trial court was
obligated to consider the plea bargain on the merits, but Cobb concluded the trial court
did not abuse its discretion in enforcing the local rule. (Id. at p. 586.) Cobb explained
that the deadline for pleas was “a means of reducing the confusion, hardship and
inconvenience inherent in calling calendars. . . . When pleas are taken [on the first day of
trial], the practice may well have a domino effect on other cases. It may leave
courtrooms vacant if the calendar judge has failed to overschedule trials. Excusing
unused jurors or, when expected pleas do not materialize, announcing there are
insufficient judges or courtrooms for the balance of the calendar, is an unpleasant judicial
task.” (Id. at p. 581.)
       The same reasoning applies in the present case. Although there appears to be no
local rule requiring pleas on plea bargains by a certain point in the process, defendant had
been informed the plea offer was only available until September 14, 2012, and had no
reasonable expectation of being able to plead to the offer after that date. In any event,
defendant and his counsel were necessarily aware that attempting to plead on the day of
trial would interfere with orderly trial scheduling. Among other things, rule 4.112 of the
California Rules of Court informed defendant that his counsel was required to appear at
the readiness conference “prepared to discuss the case and determine whether the case
can be disposed of without trial.” The trial court did not abuse its discretion in refusing
to accept the untimely plea bargain.
                                       DISPOSITION
       The trial court’s judgment is affirmed.


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                    SIMONS, J.




We concur.




JONES, P.J.




BRUINIERS, J.




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