People v. Herrera CA2/8 ( 2021 )

Filed 12/13/21 P. v. Herrera CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312388
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA078799
v.
ISRAEL HERRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert G. Chu, Judge. Affirmed.
H. Russell Halpern for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and David E. Madeo, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Israel Herrera claims the trial court improperly denied his
request to substitute retained counsel and asks us to reverse his
sentence. The trial court acted within its discretion in denying
Herrera’s tardy request. We affirm. Statutory references are to
the Penal Code.
I
The parties skip over the facts of the underlying crime. We
know from the probation officer’s report that the case stems from
a drive-by shooting in April 2020.
In May 2020, prosecutors charged Herrera with three
counts of attempted premeditated murder with personal firearm
use allegations. The complaint identifies a life state prison
sentence and “+20 Yrs.” for each count.
Herrera retained counsel, who appeared on his behalf at
the outset of the case through sentencing.
In March 2021, the parties reached a plea agreement.
Herrera pleaded no contest to one count of assault with a
semiautomatic firearm (§ 245, subd. (b)) and admitted a firearm
allegation (§ 12022.5, subd. (a)). He agreed to a 13-year sentence.
On the first page of his plea form, Herrera initialed a section that
says his plea will result in the court sentencing him to 13 years in
state prison. Herrera signed the form and entered his plea on
March 24, 2021, with the assistance of his retained counsel,
Ambrosio Rodriguez.
The trial court set a sentencing hearing for April 16, 2021.
Herrera, Rodriguez, and attorney H. Russell Halpern
appeared at the sentencing hearing. Halpern reported Herrera
had retained him a week earlier and wanted to substitute him as
counsel. Halpern was not ready to go forward with the hearing
that day and said he needed to “prepare for sentencing and also
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for other legal matters that I have been made aware of that I
want to investigate.”
When pressed, Halpern explained he wanted to look into
the constitutionality of the “gun allegation” in light of policies
adopted by District Attorney George Gascon. He felt there could
be an equal protection issue. He asked for “about a month.”
Halpern maintained he and Herrera were not asking to
withdraw the plea; he simply wanted to explore whether a part of
the plea bargain (the enhancement) was unconstitutional.
The prosecutor argued there was no constitutional issue
because the Penal Code authorized the firearm allegations, his
office could pursue the allegations with permission, and he was
moving forward.
The trial court said it could not find good cause to continue
sentencing. Rodriguez was there, and the court was ready to
sentence Herrera “today.” But if there were any claims of
ineffective assistance of counsel, the court could hear that issue.
At Rodriguez’s suggestion, Halpern and Herrera discussed
this issue off the record. Halpern then told the court Herrera had
received effective assistance but nevertheless wanted Halpern to
represent him at sentencing.
The trial court denied Herrera’s substitution request and
sentenced him to 13 years in state prison “pursuant to the plea
agreement.” The court also dismissed the attempted murder
counts in line with the agreement.
II
Herrera argues his sentence must be reversed because the
trial court violated his constitutional right to counsel of choice by
denying his substitution request. This argument fails, however,
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because the trial court properly exercised its discretion to deny
the request.
The Sixth Amendment to the federal Constitution
safeguards a defendant’s right to retained counsel of choice. In
California, this right includes being able to discharge a retained
attorney the defendant no longer wants. (People v. O’Malley
(2016) 62 Cal.4th 944, 1004 (O’Malley).) The right is not
absolute, however. A court may deny a defendant’s bid to relieve
counsel if the request is untimely—or, in other words, if the
request will disrupt the orderly process of justice. (Id. at pp. 1004
& 1006.) In making this determination, the trial court considers
the totality of the circumstances. (People v. Maciel (2013) 57
Cal.4th 482, 513.)
We review the trial court’s ruling for an abuse of discretion.
(People v. Dowdell (2014) 227 Cal.App.4th 1388, 1411.)
There was no abuse here.
Herrera had his choice of counsel from the start of the case
through the plea negotiations. He had counsel of choice when he
agreed to a 13-year sentence and when he entered his plea.
Herrera’s request to substitute counsel at the sentencing
hearing—when the court simply would impose the agreed
sentence—was untimely. It was no abuse of discretion to refuse
to delay sentencing.
Herrera had no complaints about Rodriguez. While it is
true a defendant may discharge retained counsel without cause
(O’Malley, supra, 62 Cal.4th at p. 1004), Herrera’s satisfaction
with Rodriguez’s performance remains relevant. (See ibid. [trial
court can consider the absence of an irreconcilable conflict or
inadequate representation in deciding whether discharging
counsel would disrupt the orderly processes of justice].) Herrera’s
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satisfaction with existing counsel, plus the last-minute timing of
his request for new counsel, suggests Herrera had an interest in
delay. (Cf. People v. Ortiz (1990) 51 Cal.3d 975, 987 (Ortiz)
[where the defendant requested new counsel after a mistrial and
well before any second trial, the timing of the request reflected
the defendant’s “genuine concern about the adequacy of his
defense rather than any intent to delay the retrial”].)
Further, Herrera implicitly conceded his request for more
time and research by a new lawyer before sentencing lacked
merit. (See Ortiz, supra, 51 Cal.3d at p. 984 [discussing
justifiable requests for delay].) While Halpern told the trial court
he wanted to explore the validity of part of Herrera’s plea in light
of changed district attorney policies, he also told the court they
did not wish to withdraw the plea. And on appeal, Herrera has
abandoned any attack on his plea. If there were merit to
Halpern’s musings on the validity of the plea, we would expect
Herrera’s lone appellate brief to say so.
The trial court acted within its discretion in denying the
proposed substitution.
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DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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