People v. Hayes CA2/1 ( 2022 )

Filed 10/25/22 P. v. Hayes CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B316822
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA103984)
v.
CHRISTOPHER HAYES,
Defendant and Appellant.
APPEAL from an order and a judgment of the Superior
Court of Los Angeles County, Jared D. Moses, Judge. Affirmed
with directions.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jason Tran and Kristen J. Inberg, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
A jury convicted Christopher Hayes of making criminal
threats (Pen. Code,1 § 422, subd. (a)) and of threatening a
superior court judge (§ 76, subd. (a)). On appeal, he challenges
the trial court’s order denying a continuance of his sentencing
hearing to enable Hayes to substitute appointed counsel with
retained counsel. We conclude the trial court did not abuse its
discretion in denying Hayes’s motion and proceeding to sentence
him. We, however, agree with Hayes and the Attorney General
that the sentencing minute order does not accurately reflect the
court’s oral pronouncement of sentence waiving court fines and
assessments, and we remand for the trial court to correct its
minute order nunc pro tunc.
We thus affirm with directions.
BACKGROUND
We summarize only those facts and proceedings pertinent
to the issues on appeal.
On June 27, 2018, Hayes was in court for a hearing in a
criminal case (No. BA468267) in which he was charged with
battery on a custodial officer. Hayes, who was restrained in a
safety chair and attended by multiple sheriff’s deputies, was
represented by appointed counsel. The trial court did not allow
him to represent himself because, in another case, Hayes’s
pro per status had been revoked following repeated acts of
misconduct including kicking a sheriff’s deputy, kicking
appointed trial counsel while attempting to perform a “citizen’s
arrest,” spitting on another appointed counsel, and breaking free
of his safety chair. At the June 27 hearing, Hayes stated his
1 All future statutory references are to the Penal Code.
2
preference to represent himself and disputed the court’s power to
appoint counsel.
The hearing ended when Hayes stated: “So you’re violating
my constitutional right to represent myself? [¶] All right, you
better hope I never get out of jail because if I do I’m going to meet
you in the parking lot, shove a double barrel shotgun up your ass
and pull both triggers, you (unintelligible) piece of shit who force
attorneys on innocent people and have attorneys convict innocent
people.” Following this outburst, Hayes was charged with
making criminal threats in violation of section 422(a), and with
threatening a state officer—in this case, the superior court
judge—in violation of section 76(a).
A jury convicted Hayes on both counts on October 21, 2021;
Hayes attended that trial in a safety chair. His sentencing was
scheduled for December 3. On that morning, Hayes attended
court with his appointed counsel, who moved unsuccessfully for a
new trial on the ground of insufficiency of the evidence. The trial
court denied that motion, finding that “the jury got it right” and
that “[t]he evidence amply support[ed] the jury’s verdict.”
After the trial court denied the new trial motion, and before
the court could pronounce sentence, Hayes informed the court
that he wanted to make what he styled as a Marsden2 motion.
After the prosecutor left the courtroom, Hayes asked the court for
permission to represent himself in order to file another new trial
motion or, in the alternative, for permission to retain private
counsel to replace his appointed lawyer. Hayes argued his
current counsel was aware the disciplinary reports that had led
to Hayes not being able to represent himself were false and his
2 People v. Marsden (1970) 2 Cal.3d 118.
3
attorney knew they were false, but that his attorney refused to
conduct an investigation to prove they were false. He also
complained his attorney refused to meet with him at the county
jail. He stated, if allowed to represent himself, he would need a
continuance of approximately 30 days to prepare a new trial
motion.
Hayes next informed the court that, in the event it would
not allow him to represent himself, (1) he had spoken to two
unidentified attorneys who were interested in his case; (2) he
believed he had the means to pay counsel using a combination of
COVID-19 stimulus money and contributions from family
members; and (3) if the court would continue his sentencing, he
would decide which of the two unidentified attorneys to hire.
After hearing from Hayes, the court asked his counsel to
respond. Counsel stated he did not want to say anything against
Hayes when the court was about to pronounce sentence. In
response to the court’s questions, however, the attorney stated
his representation of Hayes had been effective, pointing to an
agreement he had negotiated whereby Hayes could have pleaded
to a misdemeanor in exchange for time served, rather than go to
trial and face a sentence of 25 years. The court also elicited that
counsel had been practicing criminal law for over 40 years and
had done a hundred felony jury trials.
The trial court first denied Hayes’s motion to represent
himself. The court reasoned the request was untimely and noted
Hayes’s history of disruptive in-court misconduct resulting in his
no longer being permitted to represent himself in other matters.
The trial court then denied Hayes’s Marsden motion, based on
counsel’s responses to the court’s questions at the December 3
4
hearing, as well as the court’s observations of counsel’s
performance at trial.
Following the Marsden hearing, the prosecutor returned to
the courtroom and Hayes’s counsel requested a continuance so
that Hayes could seek new counsel. The court denied that
request: “Okay. That request will be denied. It’s untimely.
We’ve reached the point of sentencing. And we are going to go
ahead with the sentencing. [¶] I received no notice of this prior
to today. The verdict in this case was rendered on October 21st,
verdicts, plural, so that’s approximately a month and a half ago.
There’s been no motion to continue. There’s been nothing
brought to this Court’s attention. [¶] And the fact that
Mr. Hayes was offered a misdemeanor for credit time served
when he’s looking at 25-to-life and decided to turn that down and
go to trial with his 25-to-life, with the fact he’s already doing
48 years in prison, to me suggests, well, it suggests a variety of
potential things. [¶] One might infer—and I’m not saying I’m
inferring this—one might infer that this is simply a desire to
prolong one’s stay in county jail and avoid being sent off to the
Department of Corrections and Rehabilitation. [¶] It looks like
these cases, this case particularly, is dragging on and on and on
for years now. [¶] And to simply be told in the middle of
sentencing, in the middle of the hearing when the case is about to
be resolved by way of sentencing, I want to continue this to hire a
new lawyer, to me that is, the request is untimely. [¶] And it
would interfere with the orderly administration of justice. And
there’s case law that talks about a defendant’s ability and right to
discharge a retained attorney, which Mr. Chaney is not retained.
You’re appointed on this case so it is a Marsden issue. But by
analogy a defendant can fire a lawyer at any time they want and
5
seek to hire a new lawyer, but the limitation on that is that that
request must not interfere with the orderly administration of
justice. And I just find, as I said, this request is untimely. I’m
not going to grant it, so let’s move on.”
The court proceeded to sentence Hayes to 25 years to life
for making criminal threats, and four years in state prison for
making threats against the judge in the prior matter. The court
stayed the latter sentence pursuant to section 654, and ordered
the 25-year-to-life sentence served consecutively with Hayes’s
exiting 48-year sentence in an unrelated matter. The court also
found that Hayes was indigent and unable to pay court fees;
accordingly, the court did not impose fines or court assessments;
the minute order from December 3, 2021, however, includes a $40
court operations assessment, $30 criminal conviction assessment,
$300 restitution fine, and parole revocation fine.3
DISCUSSION
Hayes contends the trial court violated his Sixth
Amendment right to counsel of his choice by denying his request
for a continuance to obtain privately retained counsel.4 He
contends his request was timely because only six weeks had
passed between his conviction and the date of his sentencing
hearing, and that it was reasonable for him ultimately to decide
to seek retained counsel after he had an opportunity to review his
appointed trial counsel’s new trial motion just two days before
the scheduled sentencing hearing. He further contends that
3 Hayes filed a timely appeal from the judgment.
4 As set forth above, the trial court denied Hayes’s motion
to represent himself. Defendant does not challenge that denial
on appeal, and we thus do not address it further.
6
granting his request for what he asserts would have been only a
30-day continuance5 would not have unduly delayed or interfered
with the orderly administration of justice because it would only
take him a few days to decide which counsel to hire and he had
the financial ability to pay counsel by obtaining funds from
family and COVID-19 stimulus money.
We review the trial court's denial of the continuance to
enable Hayes to obtain private counsel under the deferential
abuse of discretion standard. (People v. Jeffers (1987)
188 Cal.App.3d 840, 850 [motion for continuance to retain new
counsel]; People v. Rhines (1982) 131 Cal.App.3d 498,
506 [same].) “Under this state law standard, discretion is abused
only when the court exceeds the bounds of reason, all
circumstances being considered.” (People v. Beames (2007)
40 Cal.4th 907, 920.) In determining whether the denial was so
arbitrary as to violate due process, we look to the circumstances
of each case, particularly the reasons presented to the court at
the time the request was denied. (People v. Courts (1985)
37 Cal.3d 784, 791 (Courts); Jeffers, at p. 850.)
The right to the effective assistance of counsel
“encompasses the right to retain counsel of one’s own choosing.”
(People v. Holland (1978) 23 Cal.3d 77, 86, disapproved on
another ground in People v. Mendez (1999) 19 Cal.4th 1084,
1092.) That right to defend with retained counsel “is not
absolute: it must be carefully weighed against other values of
substantial importance, such as that seeking to ensure orderly
and expeditious judicial administration, with a view toward an
accommodation reasonable under the facts of the particular case.”
5 See footnote 6, post.
7
(People v. Byoune (1966) 65 Cal.2d 345, 346 (Byoune).) As set
forth in our discussion, the trial court specifically found that
Hayes’s request to continue his sentencing to retain new counsel
was “untimely” and would “interfere with the orderly
administration of justice.” We conclude the trial court did not
abuse its discretion in so finding.
“[A] defendant who desires to retain his own counsel is
required to act with diligence and may not demand a continuance
if he is unjustifiably dilatory . . . .” (People v. Blake (1980)
105 Cal.App.3d 619, 623–624). The trial court is generally
“within its discretion to deny a last-minute motion for
continuance to secure new counsel.” (People v. Keshishian (2008)
162 Cal.App.4th 425, 429; see also Byoune, supra, 65 Cal.2d at
p. 346; People v. Johnson (1970) 5 Cal.App.3d 851, 858–859
[defendant asserted his desire to retain private counsel on the
first day of trial without any evidence of his efforts to obtain
representation].) Here, six weeks had elapsed between Hayes’s
conviction and his sentencing, yet Hayes had not selected new
counsel, much less determined whether counsel was available
within a reasonable time frame.6 Trial courts have greater
latitude to deny a continuance when the prospect of retaining
private counsel is “still quite speculative at the time the motion
for continuance [is] made.” (Courts, supra, 37 Cal.3d at p. 791,
fn. 3.)
6 Hayes’s brief refers to a 30-day continuance, but that was
the time that Hayes told the court he would need to prepare a
new trial motion if he were permitted to represent himself.
There is nothing in the record indicting that Hayes’s prospective
retained counsel could be ready within 30 days.
8
Hayes argues that the trial court abused its discretion
because the continuance he requested would not have
inconvenienced jurors or witnesses. This argument ignores the
fact that the court had already scheduled the sentencing hearing
with no notice that Hayes’s wanted retained instead of his
appointed counsel. Scheduling a hearing with Hayes present
required significant additional resources and planning. Hayes
had a history of disruption in prior cases- included threatening a
judge, breaking free of his safety chair, kicking a sheriff’s deputy,
and kicking and spitting on appointed trial counsel. During the
pendency of this case, Hayes struck a sheriff’s deputy with a
restraining chain, lit a fire in his cell, and, while being put in his
safety chair to be brought to court, attacked a deputy with “some
type of bodily fluids” and stabbed another in the hand. We
conclude that given this history, the trial court did not abuse its
discretion in finding that postponing the sentencing hearing
would burden the orderly administration of justice. As the trial
court noted when he passed sentence, Hayes “needs to be sent to
state prison as quickly as humanly possible.”
At oral argument, Hayes’s counsel relied on People v.
Crovedi (1966) 65 Cal.2d 199 (Crovedi), and People v. Williams
(2021) 61 Cal.App.5th 627 (Williams) to argue the trial court
erred in not continuing the sentencing hearing to allow Hayes to
retain new counsel.
Briefly summarized, in Crovedi, a multi-defendant case, the
court held the trial court violated the appellant-defendant’s right
to due process in not granting an additional continuance after
appellant-defendant’s retained counsel suffered a heart attack
during trial, and appellant represented after the court granted a
brief continuance, that he needed more time to retain counsel
9
with sufficient time to prepare for trial. Instead of granting the
continuance, the trial court required the partner of defendant’s
initial counsel, who represented he was unprepared, nevertheless
to proceed with trial. The Crovedi court drew a distinction
between a defendant who needs to retain new counsel “when
defendant is in no way responsible for the absence of his retained
counsel” (Crovedi, supra, 65 Cal.2d at p. 207), and “a defendant
whose actions imply a disposition to abuse the patience of the
court through dilatory efforts to seek counsel” (id. at p. 208.)
In Williams, after the court denied the defendant’s
Marsden motion heard two weeks before trial due to the court’s
busy calendar, sought a continuance of the trial so that new
counsel could be prepared for what even the prosecutor
denominated was a complex trial. Retained counsel was present
at that time and described her negotiations with defendant’s
mother to pay counsel’s fee. The trial court denied the
continuance as being too late given the age of the case. The
appellate court held this denied the defendant’s Sixth
Amendment right to counsel of his choosing. (Williams, supra,
61 Cal.App.5th at pp. 643–644.) We fail to discern how either of
these cases is even remotely analogous to the facts of the case
before us. As explained above, the record amply supports a
finding that continuing the trial would have been burdensome to
the administration of justice and that Hayes’s request to continue
the trial was just another effort to delay his sentencing and
disrupt court operations.
Also, unlike Crovedi and Williams, Hayes’s representations
about having retained counsel ready to file a second new trial
motion and to address sentencing were conclusory at best. Hayes
did not identify any counsel who was willing to represent him;
10
indeed, he told the court he had not yet decided which one of two
unidentified counsel he wanted to represent him. A fortiori,
Hayes did not proffer any declaration from an attorney stating he
or she would be available and when to represent Hayes if the
court granted Hayes’s continuance and no such counsel was
present at the sentencing hearing. The court thus could have
disbelieved Hayes’s unvarnished representations that Hayes
would have new counsel available to represent him at a
continued hearing at some unidentified date.
There also was a substantial question whether Hayes was
financially able to retain private counsel. Hayes made his motion
to discharge his appointed counsel at the same hearing when the
court determined he was indigent, and therefore unable to pay
court fines and assessments. The trial court did not have to
credit Hayes’s vague representations that he had COVID-19
stimulus money or contributions from unidentified family
members to pay for unidentified retained counsel. The right to
retain counsel of one’s choice is limited to defendants who are
“ ‘ financially able to retain an attorney of [their] own choosing.’ ”
(Courts, supra, 37 Cal.3d at p. 790, italics added.)
For all these reasons, we conclude the trial court did not
abuse its discretion in denying Hayes’s requested continuance or
deprive him of his Sixth Amendment right to retained counsel.
The December 3 Minute Order Regarding Court
Assessments and Fines Does Not Reflect the Court’s
Oral Pronouncement Waiving Such Assessments and
Fines
The trial court found that Hayes was indigent, and on that
basis, ordered during its oral pronouncement of sentence that
Hayes not be required to pay court assessments and fines.
11
Although the abstract of judgment conforms to the sentence
orally pronounced, the minute order from Hayes’s sentencing
states that Hayes was ordered to pay a $40 court operations
assessment, $30 criminal conviction assessment, $300 restitution
fine, and parole revocation fine. The Attorney General agrees
that the minute order does not properly reflect the court’s ruling
and should be corrected to conform to the court’s oral
pronouncement of sentence. Accordingly, we remand for the trial
court to issue nunc pro tunc an amended minute order not
including the above-noted fines and court assessments.
DISPOSITION
The order denying a continuance of the sentencing hearing
to allow Christopher Hayes to bring in retained counsel is
affirmed. The matter is remanded for the trial court to amend
nunc pro tunc its December 3, 2021 minute order to delete
payment of a $40 court operations assessment, $30 criminal
conviction assessment, $300 restitution fine, and parole
revocation fine. The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
12