People v. Barrera CA4/1 ( 2024 )

Filed 10/7/24 P. v. Barrera CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083061
Plaintiff and Respondent,
v. (Super. Ct. No. SCD298571)
JUAN MANUEL BARRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Dwayne K. Moring, Judge. Affirmed.
Patrick M. Ford, under appointment by the Court of Appeal, for the
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Kristen K. Chenelia, Deputy Attorneys General.
Juan Manuel Barrera pleaded guilty to unlawful possession of a
controlled substance while serving time for a prior conviction. Barrera was
sentenced to two years in prison in accordance with a plea deal. On appeal
from the judgment of conviction, Barrera asserts the trial court abused its
discretion by failing to grant a continuance so he could retain private counsel
and attempt to withdraw his guilty plea. In response, the Attorney General
argues the court properly denied the continuance because the request was
untimely, the prospect whether Barrera could retain private counsel was
purely speculative, and any motion to withdraw his plea would be baseless.
For reasons we explain, we conclude that the court’s denial of defendant’s
motion to continue sentencing was not an abuse of discretion. Therefore, we
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Barrera was serving a 24-year sentence for attempted murder when jail
officials found Suboxone strips, a controlled substance, in his underwear. On
April 10, 2023, he was charged with possession of a controlled substance in
jail. The court appointed the public defender’s office to represent him. The
following month, Barrera executed a waiver of right to counsel. Two months
later, he terminated his pro per status and requested the trial court
reappoint his public defender. The public defender was reappointed, and
subsequently provided documentation of Barrera’s Suboxone prescription to
the district attorney. On July 19, 2023, Barrera pleaded guilty to possession
of a controlled substance in jail (Pen. Code, § 4573.6) and admitted a strike
prior (id., §§ 667, subds. (b)–(i), 668.). Following Barrera’s plea, and prior to
sentencing, the court conducted two Marsden1 hearings at Barrera’s request.
At the first Marsden hearing, Barrera told the court that his counsel
(1) failed to provide him with documentation of his prescription for Suboxone
when she was relieved; (2) pursued a defense Barrera opposed; and (3) did
not move to withdraw Barerra’s guilty plea despite his request that she do so.
1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2
Counsel admitted she did not provide Barrera with documentation of his
prescription for Suboxone. Counsel explained she obtained the
documentation on a CD from the jail following Barrera’s waiver of counsel.
She stated she provided the documentation to the Office of Appointed
Counsel (OAC) when Barrera was self-represented. Barrera’s counsel also
explained the flaws she perceived in the defense Barrera wanted to pursue.
Barrera wanted to argue his possession was lawful based on his prescription
for Suboxone, or that the substance had been erroneously given to him by
laundry attendants. Counsel explained that, in response to this claimed
defense, the district attorney was still unwilling to drop the criminal charges
because Barrera’s prescription was for a different form of Suboxone than
what the jail dispensed. The court denied the Marsden motion, finding
Barrera’s counsel had adequately and competently represented him.
At the second Marsden hearing three weeks later, Barrera explained
his request for new counsel was based on a conflict of interest, lack of trust,
and deficient communication with his current counsel. He told the court:
“[s]he’s scar[ed] me into taking the deal [by] telling me that I’m going to
receive life, [that] is the reason why I accepted the deal.” Barrera’s counsel
explained that when she met with Barrera prior to the preliminary hearing,
she advised him of the maximum sentence he could receive, which was life in
prison due to his prior strikes and “actually told him not to ple[a].” The court
denied the second Marsden motion, finding the justifications Barrera
provided were not sufficient grounds for relieving his counsel.
Barrera then stated he did not want to go forward with the sentencing
and wanted to retain different counsel. The court stated it intended to go
forward with sentencing. Barrera’s counsel then objected, asserting Barrera
had the right to represent himself or retain different counsel. The court
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asked Barrera if he had another attorney. Barrera responded that he was
“trying to get an attorney.” The court denied the motion without further
inquiry.
At the sentencing hearing two days later, the trial court sentenced
Barrera under the plea agreement to a two-year term, to run consecutively to
the 24-year sentence he was already serving. Barrera timely appealed from
the judgment.
DISCUSSION
Barrera raises a single issue on appeal. He contends the trial court
erred by denying his request to continue sentencing so that he could retain
private counsel to file a motion to withdraw his guilty plea. The Attorney
General responds denial was reasonable because the request was untimely,
whether Barrera could afford to retain counsel was purely speculative, and a
subsequent motion to withdraw Barrera’s plea would have been baseless.
I
Legal Standards
The Sixth Amendment to the Federal Constitution provides the accused
shall enjoy the right to assistance of counsel for his or her defense in all
criminal prosecutions. (Gideon v. Wainwright (1963) 372 U.S. 335, 339.) If
the accused is indigent, he or she has the right to have counsel appointed for
him or her. (Ibid.) If the accused can retain an attorney of his or her own
choosing, the trial court must “make all reasonable efforts” to ensure the
accused may be represented by that attorney. (People v. Courts (1985) 37
Cal.3d 784, 790 (Courts).) Regardless of whether defense counsel is
appointed or retained, the right to assistance of counsel includes the right to
effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S.
668, 686.)
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The right to counsel, however, is not absolute. “[T]he trial court has
discretion whether to grant a continuance to permit a defendant to be
represented by retained counsel.” (People v. Jeffers (1987) 188 Cal.App.3d
840, 850 (Jeffers).) The right to retained counsel must be “ ‘ “carefully
weighed against other values of substantial importance, such as that seeking
to ensure orderly and expeditious judicial administration.’ ” ” (Ibid.) “The
right to counsel of one’s own choosing ‘… “can constitutionally be forced to
yield only when it will result in significant prejudice to the defendant himself
or in a disruption of the orderly processes of justice unreasonable under the
circumstances of the particular case.” ’ ” (Id. at pp. 849–850.)
A trial court’s denial of a request for continuance is reviewed for abuse
of discretion. (Jeffers, supra, 188 Cal.App.3d at p. 850.) “In deciding whether
the trial court’s [denial of] a continuance was so arbitrary as to deny due
process, this 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.) Further, “[i]n the absence of a showing of ... prejudice to
the defendant, a denial of his or her motion for a continuance does not require
reversal.” (People v. Samayoa (1997) 15 Cal.4th 795, 840 (Samayoa).)
II
Analysis
Barrera argues that the trial court’s denial of his request to continue
sentencing to allow him additional time to retain new counsel was prejudicial
error because he has a right to retain counsel of his choice. He further argues
the request, although made two days prior to sentencing, was not untimely
because “[g]ranting the continuance would not have inconvenienced
witnesses, the court or the prosecutor” and “sentencing hearings are
frequently continued.”
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“ ‘ “The granting or denial of a motion for continuance [to retain
counsel] rests within the discretion of the trial judge who must consider not
only the benefit which the moving party anticipates but also the likelihood
that such benefit will result.’ ” ” (Samayoa, supra, 15 Cal.4th at p. 840.)
Here, Barrera sought a continuance to retain private counsel two days before
the sentencing date. Barrera, however, had almost two months from the time
he pleaded guilty to the date of sentencing. This provided him ample time to
seek private counsel. Further, Barrera did not provide the court with any
explanation for his apparent delay or what efforts, if any, he undertook to
seek new counsel. Thus, the trial court’s denial of his request for a
continuance was not an abuse of the court’s discretion. (See Jeffers, supra,
188 Cal.App.3d at p. 850 [“lateness of the request [for continuance] may be a
significant factor justifying denial absent compelling circumstances to the
contrary”]; Courts, supra, 37 Cal.3d at pp. 790–791 [“A continuance may be
denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel”].)
In addition, a continuance to retain private counsel at this late stage of
the case would “disrupt[] the orderly processes of justice.” (Courts, supra, 37
Cal.3d at p. 790.) Barrera twice alternated between self-representation and
representation by appointed counsel. He expressed no intent to retain
private counsel until just two days prior to sentencing and the record
contains no indication Barrera was financially capable of retaining such
counsel. Given these facts, the trial court was within its discretion to deny
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the requested continuance.2 (See People v. Pigage (2003) 112 Cal.App.4th
1359, 1367 [court’s denial of continuance appropriate where no evidence
defendant had attempted to obtain private counsel]; People v. Johnson (1970)
5 Cal.App.3d 851, 858 [denial of request for continuance to obtain private
counsel on eve of trial not an abuse of discretion where defendant had four
months between preliminary hearing and trial to do so].)
Moreover, even if the trial court erred in refusing to grant the
continuance, any error was harmless because the court found Barrera had no
basis to withdraw his plea. “Whether to grant or deny a defendant
permission to withdraw a plea of guilty must be decided ‘in the interest of
promoting justice.’ ” (People v. Williams (1998) 17 Cal.4th 148, 164, fn. 7
(Williams).) The court’s finding is well-supported by the record. At the
second Marsden hearing, Barrera’s counsel explained that she met with
Barrera prior to the preliminary hearing and advised him that the district
attorney had informed her the People were unwilling to dismiss the case,
despite his Suboxone prescription, because he was found with strips and the
jail only dispensed Suboxone in pill form. Counsel also informed him of the
maximum sentence for the current charge, which, due to his prior strikes,
was life in prison. Barrera’s counsel stated she was surprised he decided to
plead guilty in exchange for a stipulated two-year sentence because she
advised him against it. Barrera told the court, “I’m tired and I pled to these
2 Appellant relies on People v. Williams (2021) 61 Cal.App.5th 627 for the
proposition that a defendant’s right to counsel of choice may only be
overridden in compelling circumstances. Williams dealt with a request for
continuance made one month prior to trial, at which time the defendant had
contacted a replacement attorney and initiated efforts to fund private
counsel. (Id. at pp. 651‒653) Williams does not support Barrera’s
continuance request because, in contrast to the defendant in Williams,
Barrera did not file his request until a mere two days before sentencing and
he did not undertake any effort to find and retain a private attorney.
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two years because I felt that I had no other way around it.”3 This record
supports the court’s tacit finding that Barrera made the plea freely and
voluntarily and Barrera provides us with no reason to question the trial
court’s credibility determination on this issue. Because Barrera had no basis
to withdraw his plea, the trial court’s decision to deny the requested
continuance did not prejudice him. Thus, even if the court’s decision was
error, it was harmless. (See Williams, at p. 162.)
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
3 In addition, on the plea form executed by Barrera, he wrote his initials
next to the term stating, “I am entering my plea freely and voluntarily,
without fear or threat to me or anyone closely related to me.”
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