Filed 2/27/14 P. v. Pennings CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063009

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD240171)

OTONIEL TYLER PENNINGS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.

Fraser and Louis R. Hanoian, Judges. Affirmed.



         Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, Charles C. Ragland and Jennifer B. Truong, Deputy Attorneys General, for

Plaintiff and Respondent.
       Otoniel Tyler Pennings appeals from a judgment of conviction of one count of

residential burglary while other individuals were present in the home. Pennings contends

the trial court abused its discretion by denying his continuance requests after granting his

motion to represent himself. We find no abuse of discretion and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

                                             A

                                         The Charges

       The San Diego County District Attorney filed an information charging Pennings

with one count of residential burglary (Pen. Code, §§ 459, 460)1 and alleging that a

person, other than an accomplice, was present in the residence during the burglary

(§ 667.5, subd. (c)(21)). The information further alleged Pennings had two prior prison

convictions (§§ 667.5 subd. (b), 668).

                                             B

                                     Pretrial Motions

                                             1

       At the trial call on July 30, 2012 (a Monday), Pennings asked the court to appoint

new counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Pennings

mentioned he wanted to have certain witnesses questioned. According to defense

counsel, however, Pennings was unable to provide the name of the person whose house

he thought he was visiting at the time of the incident. The only witnesses Pennings


1      All further references are to the Penal Code unless otherwise indicated.

                                             2
mentioned interviewing were these individuals present in the house and identified in the

police report. Defense counsel did not believe it was necessary to interview those

individuals because they did not tell the police Pennings was violent or threatening. They

only said he was in the house, which he admitted.

       The court denied the Marsden motion, finding defense counsel was effectively

representing Pennings and there was no breakdown in communication.

                                               2

       After the court denied the Marsden motion, Pennings waived his right to counsel

and asked to represent himself pursuant to People v. Lopez (1977) 71 Cal.App.3d 568,

571.2 The court cautioned Pennings against representing himself, but Pennings stated he

had been pro per before and the information he would need to represent himself was in

the law library. The court asked Pennings if he recognized he was going to trial "in the

next few days, next week?" Pennings said he needed evidence before he could go to trial.

       Pennings acknowledged he understood everything on the Faretta/Lopez waiver

form. The court again cautioned Pennings against representing himself stating, "You

understand that, in this court's opinion, you're not doing the smart thing. You should

let . . . a lawyer represent you. I'm not saying you can't do it. I'm saying that it's just not

the smart thing. Do you understand that?" Pennings understood. The court relieved


2      "In People v. Lopez, [supra, 71 Cal.App.3d at p. 571], the court suggested a set of
advisements 'designed to ensure a clear record of a defendant's knowing and voluntary
waiver of counsel.' " (People v. Goodwillie (2007) 147 Cal.App.4th 695, 705, fn. 5.) The
waiver of the right to counsel and request for self-representation is also referred to as a
Faretta motion based upon Faretta v. California (1975) 422 U.S. 806.

                                               3
defense counsel stating, "The defendant will act as his own attorney." The court ordered

appointment of a legal runner and an investigator to assist Pennings.

       When the prosecutor suggested sending the case to trial on the same day, the court

said, "I can't send you out today because he needs an investigator and runner."

       Pennings then asked for a continuance stating he did not have the discovery. The

discovery consisted of a police report and a record of Pennings's priors. He had a

redacted copy of the police report, but the court asked the prosecutor to provide Pennings

with the discovery packet.

       The court continued the matter for two days. While the court said they were going

to "talk about whether or not you're ready to go to trial," the court also stated, "I think

you should be because, quite frankly, what the [prosecutor] has told me regarding the

amount of pages in the discovery, you should be able to read that and be ready to go to

trial by this afternoon. But we'll give you [until] Wednesday. Look through it. Do any

legal research you have. You're pro per now, so you'll get some library privileges; you'll

get a runner; you'll get an investigator. And we'll see where we're at on Wednesday."

                                               3

       The following Wednesday, August 1, 2012, Pennings reported he was not ready

for trial. He acknowledged he received the discovery from the prosecutor the day before.

He said it was not long and he had read it. Pennings acknowledged the court had told

him to be ready. However, he stated he wanted time to address a couple of issues to

"properly defend myself." He said he wanted to file a motion under section 995 based on

lack of intent and he wanted to go to the law library. He also said he needed materials to

                                               4
file the motion. The court said his prior attorney was a good lawyer and she would have

filed a motion if she thought there was a basis to do so.

       Pennings said he wanted an investigator to "make a few questions to possible other

witnesses for my defense." However, he was not willing to identify the witnesses unless

the prosecutor was not present. The court denied the continuance and assigned the matter

to a trial department. The court reminded Pennings it had told him on Monday to be

ready to go to trial and the discovery was "quite simple." The court also said Pennings

could talk to the trial judge about it further.

                                                  4

       Pennings asked the trial judge for a continuance stating he wanted to file a motion

and wanted an investigator to interview witnesses. He acknowledged that on Monday,

July 30, 2012, the court had ordered the Office of Assigned Counsel (OAC) to provide

him with investigative services. He also acknowledged he received some papers on

Tuesday, July 31. He claimed he had to submit paperwork for the investigator. After

considering Pennings' arguments as well as those of the prosecutor, the trial judge denied

the request for continuance.

       In discussing the witness list, Pennings gave the name of a potential witness and

acknowledged he needed to get a statement from him. The court explained if Pennings

received a statement from the witness, he needed to provide it to the prosecutor.

       After discussing pretrial motions by the prosecution, the court asked Pennings if

he had any motions. Pennings stated he did not have any motions other than a



                                                  5
continuance request. The court again denied the motion stating Pennings raised no new

reasons he had not raised before the case was sent to trial.

       Pennings asked for a continuance for a third time that day to obtain clothes for

trial from the OAC. The court again denied the continuance request, but signed a dress

out order, commenting this was something Pennings should have done when he was

granted pro per status.

       At the conclusion of the first day of trial, the court provided Pennings with a copy

of the preliminary hearing transcript. Pennings used this transcript to cross-examine

witnesses at trial.

                                             C

                                       Trial Evidence

       On the morning of April 4, 2012, Pennings jumped a fence in the back of a house

located on Mission Village Drive and entered the home through a sliding glass door at the

back of the house. A 14-year-old girl awoke when the sliding door in her bedroom

opened. She saw Pennings open the door, push the curtains aside and walk in. At first,

she wondered if it was her brother, but soon realized she did not recognize the man.

Pennings walked around her bed and grabbed her phone from where it was charging on

the nightstand.

       She told him to give her phone back. Pennings asked repeatedly, "Where are the

keys?" He returned the phone to her, but told her, "Don't call anyone." He did not

apologize or indicate he made a mistake in entering the home.



                                              6
       Pennings left her bedroom and went down the hall. He went to a key rack located

next to the front door of the house and grabbed keys off the rack. He tried to open the

front door, which was locked.

       The girl woke up her father, who was sleeping on the couch. The father saw

Pennings standing at the front door reaching for a pair of keys on the rack with one hand

and reaching for the doorknob with his other hand. When the father realized he had

never seen Pennings before and he did not belong in the home, the father ran toward

Pennings and grabbed him. The father hit and pushed Pennings toward the wall so

Pennings could not open the door. In the meantime, the girl called the police.

       While the father and Pennings struggled, Pennings said, "Let me go. Let me go. I

don't want to get arrested." At no point did Pennings indicate this was a mistake or that

he thought he was in someone else's house. Instead, he repeated, "Let me go. I don't want

to go to jail."

       The girl's brother awoke from the noise, came out of his room and ran to help.

Pennings stopped struggling when the brother threatened him with a baseball bat. The

father and the brother pinned Pennings to the floor and held him there until the police

arrived. While they waited for the police, Pennings did not respond to any questions

about whether Pennings lived in the neighborhood.

       Pennings testified he was trying to go to a friend's house. He stated he thought he

was entering a house that belonged to people he knew. He claimed he did not realize he

was in the wrong house until he picked up the girl's phone. He stated it did not occur to



                                             7
him to leave through the back door. Pennings said he did not intend to steal anything

when he entered the house and he denied grabbing keys.

       Pennings admitted on cross-examination that his friend, Chris, who lives on a

neighboring street, does not live on a corner and there is no access through a fence from a

side street. However, Pennings then testified he was not actually going to Chris's house,

but rather to John's house to "buy some time" and to make a telephone call until he could

go back to Chris's house to get things he had left there. Pennings admitted he never told

the residents he made a mistake and was in the wrong house. He first mentioned this

story while being questioned by a police officer at the station.

                                             D

                                  Verdict and Sentencing

       The jury found Pennings guilty of the crime of burglary with a nonaccomplice

present in the residence during the burglary. After a bench trial, the trial court made true

findings as to the first and second prison priors. The court sentenced Pennings to the

middle term of four years with an enhancement of two years for the prison priors.

                                       DISCUSSION

       " 'A continuance in a criminal trial may only be granted for good cause. (§1050,

subd. (e).) "The trial court's denial of a motion for continuance is reviewed for abuse of

discretion." [Citation.] "There are no mechanical tests for deciding when a denial of a

continuance is so arbitrary as to violate due process. The answer must be found in the

circumstances present in every case, particularly in the reasons presented to the trial



                                              8
judge at the time the request is denied." ' " (People v. D'Arcy (2010) 48 Cal.4th 257, 287-

288.)

        When a court grants a waiver of the right to counsel and a motion for self-

representation under Faretta v. California (1975) 422 U.S. 806, the defendant is

ordinarily "entitled to a reasonable continuance to enable him to prepare for trial. 'To

deny him that opportunity would be to render his right to appear in propria persona an

empty formality, and in effect deny him the right to counsel.' " (People v. Hill (1983)

148 Cal.App.3d 744, 756, italics added.)

        In People v. Hill, the defendant was charged with two counts of burglary, two

counts of robbery, two counts of rape, and two counts of false imprisonment. (People v.

Hill, supra, 148 Cal.App.3d at p. 749.) The appellate court reversed, finding the trial

court abused its discretion when it required the defendant to go to trial with five days of

preparation after the court granted a motion for self-representation. (Id. at p. 757-758.)

Under the circumstances of that case, "regardless of whether the grant of the Faretta

motion was mandatory or discretionary, once the court granted that motion, it was

obliged also to grant appellant's request for a continuance." If " 'the trial judge allows the

defendant to discharge his counsel and a request for a continuance in order to prepare is

made, then it appears a reasonable continuance is mandatory and a failure to grant such

continuance would be reversible error.' " (Id. at p. 757, italics added.)

        The Supreme Court has since explained that trial courts have broad discretion to

deny a request for continuance if the request appears to be based upon a desire to delay

the proceedings. (People v. Jenkins (2000) 22 Cal.4th 900, 1037-1038.) "Even in a

                                              9
capital case, if the defendant cannot show he or she has been diligent in securing the

attendance of witnesses, or that specific witnesses exist who would present material

evidence, '[g]iven the deference necessarily due a state trial judge in regard to the denial

or granting of continuances,' the court's ruling denying a continuance does not support a

claim of error under the federal Constitution." (Id. at pp. 1039-1040; see People v.

Douglas (1995) 36 Cal.App.4th 1681, 1689 ["if the court determines the defendant's

request [for a continuance] is merely a tactic designed to delay the trial, the court has the

discretion to deny the continuance and require the defendant to proceed to trial as

scheduled either with his counsel or in propria persona"].) A request for a continuance

that accompanies a Faretta motion is strong evidence the defendant's purpose is dilatory.

(People v. Burton (1989) 48 Cal.3d 843, 854.)

       In this case, Pennings had appointed counsel for at least three months and obtained

one 30-day trial continuance before the matter came to trial. Pennings waited until the

day of trial to request a different appointed attorney. When the court denied the motion,

Pennings waived representation and asked to represent himself. The court denied the

People's suggestion to send the case to trial that day stating the defendant needed an

investigator and a legal runner.

       Pennings asked for a continuance because he needed the discovery. After

inquiring about the amount of discovery and confirming it consisted of the police report

and documentation regarding defendant's own priors, the court ordered the prosecutor to

provide the discovery packet and continued the trial for two days. The court advised

Pennings to prepare for trial. Based on the limited discovery the court stated Pennings

                                             10
should be prepared as early as that afternoon, but he would have until Wednesday. The

court ordered the appointment of a legal runner and an investigator to assist Pennings.

       Under the circumstances of this case, we conclude a two-day continuance was

reasonable. The court properly considered the nature of the charge and the extent of the

discovery. Additionally, unlike in People v. Wilkins (1990) 225 Cal.App.3d 299, 303,

where the defendant was not granted propria persona privileges until after the trial

concluded, Pennings obtained his privileges on the day he asked to represent himself.

       Two days later, Pennings said he was still not ready for trial even though he

acknowledged he had received and read the limited discovery materials in the case. He

asked for a continuance to do legal research to file a motion and to have an investigator

question other possible witnesses. When the court asked Pennings what witnesses he

wanted to contact, Pennings said he would not discuss it with the prosecutor present. The

court knew Pennings had not been able to identify potential witnesses to his prior

attorney for over three months, nor could he provide the address of the individual he

purportedly intended to visit instead of the victim's home. The court denied the motion

for continuance and assigned the matter to a trial department. This was a proper exercise

of the court's discretion under the circumstances.

       The trial court also properly exercised its discretion in denying Pennings repeated

motions for continuance. After confirming the OAC was appointed to assist Pennings

with investigative support and a legal runner, the trial court denied the motion for

continuance stating it did not appear anything had changed since the previous judge



                                             11
denied the continuance motion. The court stated they would select the jury the following

morning.

       That same day, after the in limine hearing Pennings again asked for a continuance

because he needed to obtain clothing. The court commented this was something

Pennings should have done as soon as he was granted pro per status, but signed a dress-

out order. The court stated this was not a basis for continuance.

       The following day, Thursday, August 2, 2012, Pennings once again asked for a

continuance, this time arguing he had not been able to use the law library and the

prosecutor had just given him new case authority. The court noted he had been pro per

since Monday and the court had trailed the case for two days to allow him to prepare for

trial. The court confirmed the discovery consisted of reports from two police officers,

totaling 18 pages. The court denied the continuance request, stating it would not grant a

continuance to anyone based upon new case authority. The prosecutor gave Pennings a

copy of the two cases that morning. Pennings successfully distinguished the authority

and defeated the People's motion to introduce evidence of Pennings prior convictions to

prove the element of intent.

       Pennings argues on appeal, "[i]t is hard to imagine that an in-custody, pro. per.

defendant could request an investigator, have one come to visit him in jail to discuss the

investigation that needed to be done, have the investigator find and interview the

witnesses and report back to the defendant in just two days. An attorney free from

custody would need more time than that." This statement is speculative and is not

supported by the record.

                                            12
       Pennings has not shown he was diligent in securing the attendance of witnesses, or

even that specific witnesses exist who could present material evidence in his defense.

(People v. Jenkins, supra, 22 Cal.4th at pp. 1039-1040.) Pennings received paperwork to

request an investigator no later than Tuesday, July 31, 2012. When Pennings identified a

possible witness during the in limine hearing on Wednesday, the court told him he

needed to produce any statement he could to obtain from this witness if he intended to

call the witness. Pennings also stated he had an address documented a block from the

victim's house. However, there is no indication that Pennings sent an investigator to that

address. The jury was not empaneled until Thursday afternoon, August 2. Pennings was

not required to put on his defense case until the afternoon of Friday, August 3.

Therefore, there is no indication in this record Pennings was precluded from having an

investigator attempt to contact his purported witnesses in time to put on a defense.

       The record in this case shows the court properly exercised its discretion to deny

Pennings' continuance requests, which appeared to be for the purpose of delay. (People

v. Jenkins, supra, 22 Cal.4th at pp. 1037-1038.) The Legislature has declared the public

policy supporting expeditious disposition of criminal matters. "Excessive continuances

contribute substantially to [congestion of the criminal courts] and cause substantial

hardship to victims and other witnesses. Continuances also lead to longer periods of

presentence confinement for those defendants in custody and the concomitant

overcrowding and increased expenses of local jails. It is therefore recognized that the

people, the defendant, and the victims and other witnesses have the right to an

expeditious disposition, and to that end it shall be the duty of all courts and judicial

                                              13
officers . . . to expedite these proceedings to the greatest degree that is consistent with the

ends of justice." (§ 1050, subd. (a).) It is for this reason the Legislature requires a

continuances in criminal cases to be supported by good cause. (§ 1050, subd. (e).)

       The court granted a reasonable continuance after Pennings elected to represent

himself. Thereafter, Pennings did not show good cause or diligence to support his

continuance requests.

                                       DISPOSITION

       The judgment is affirmed.




                                                                         MCCONNELL, P. J.

WE CONCUR:


NARES, J.


MCINTYRE, J.




                                              14
