Magana v. Superior Court of San Mateo Cnty.

• Decision Date: 27 April 2018
• Docket Number: A153981
• Citation: 231 Cal.Rptr.3d 882,22 Cal.App.5th 840
• Parties: Eudoro MAGANA, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

22 Cal.App.5th 840

231 Cal.Rptr.3d 882

Eudoro MAGANA, Petitioner,

v. The SUPERIOR COURT of San Mateo County, Respondent;The People, Real Party in Interest.

A153981

Court of Appeal, First District, Division 4, California.

Filed April 27, 2018

Law Offices of Daniel Everett and Daniel Everett, San Francisco, for Petitioner.

No appearance, for Respondent.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, René A. Chacón, Supervising Deputy Attorney General, Stephen M. Wagstaffe, District Attorney for San Mateo County, Sharon K. Cho, Deputy District Attorney for San Mateo County, for Real Party in Interest.

Schulman, J.^* Defendant Eudoro Magana is charged with two counts of rape. After his trial date was continued four times, defendant's trial counsel, Daniel Everett, sought a fifth continuance, but failed to appear for the hearing on the motion, and the case was assigned out to trial. Everett then exercised a peremptory challenge ( Code Civ. Proc., § 170.6 )¹ against the trial judge to whom the case was first assigned, resulting in its assignment to a second judge. Everett then sought to exercise a second peremptory challenge and, when that proved unsuccessful, filed a "motion for recussal [sic ] of judge" (§ 170.1) asserting that the trial judge was biased against Everett because he had declined to meet in chambers with counsel to discuss settlement. However, Everett voluntarily withdrew that motion before the judge could address it.

On the second day of trial, Everett filed a motion to appoint an expert to testify that his client's confession was involuntary. The trial judge ruled that Everett was not prepared to proceed to trial and was not providing Magana with adequate representation and continued the trial. The prosecution then requested the court to remove Everett as counsel, asserting that the court had a duty to preserve the integrity of the judicial process and to preserve all parties' right to a speedy trial. Following a hearing, the trial court granted that motion, finding that due to Everett's conduct, the alleged victim, the prosecution, and the defendant had been denied their right to a speedy trial, and that it had no faith that Everett would be prepared to take the case to trial on a timely basis.

Defendant now brings a petition for writ of mandate or prohibition, challenging both the trial judge's refusal to disqualify himself and his removal of defense counsel. We shall deny the petition. Defendant withdrew his first statement of disqualification, and the trial court correctly found his second statement of disqualification was untimely. Further, a trial court has authority to remove defense counsel to ensure that adequate representation is provided, and to prevent substantial impairment of court proceedings. While such authority is to be sparingly exercised and reserved for only the most exceptional cases, the trial court did not abuse its discretion in finding that this is just such a case and removing counsel.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was arraigned in May 2016 on a complaint charging him with two counts of rape ( Pen. Code, § 261, subd. (a)(2).) In June 2016, attorney Daniel Everett substituted in as defendant's attorney of record.

The case was initially set for trial on March 27, 2017. Everett moved to continue the trial, which was then rescheduled for May 22, 2017.

Court was scheduled to begin at 8:45 a.m. on May 22. Everett did not arrive until 11:50 a.m., and then made an oral motion to continue the trial based on a need to conduct further investigation into a purported allegation of sexual assault that the victim previously made against a third party. The court granted the continuance over the prosecution's objection. Trial was re-set to July 10, 2017. On July 5, the prosecution moved to continue the trial based on witness unavailability. Defendant did not object. The court moved the trial date to November 6, 2017.

On November 6, 2017, Everett indicated he was not prepared to proceed to trial and asked for another continuance, his third such request. The prosecution objected. The court, after advising the parties that no courtrooms were available, granted the continuance and moved the trial date to February 20, 2018.

On February 20, 2018, the parties were scheduled to appear for trial at 8:45 a.m. Everett was not present. Another attorney indicated that Everett was detained elsewhere and would be moving for a continuance. The matter was transferred to the afternoon master calendar before the Honorable Jonathan E. Karesh.

Everett appeared late for the afternoon calendar. The court first took up the defendant's motion for a further continuance of the trial. Everett admitted that the motion was "skimpy." He explained to the court that his motion was based on a conversation he had recently with a potential witness named Benito Zapata, against whom he claimed the alleged victim in the case had filed a false claim in 1999. According to Everett, Zapata would "be able to take the stand and say that she [the victim] has a reputation within the community of saying these sorts of things and making up these sorts of things that, in and of itself, the whole case could hinge upon. [¶] ... And, that alone, that is a very important aspect of this case." Everett admitted that Zapata had not been subpoenaed, but asserted that the defense had just learned of him "[w]ithin the last 72 hours." Everett sought a continuance of one week.

To support his request for a continuance, Everett forwarded an email to Judge Karesh that showed an email conversation Everett had with his defense investigator regarding Zapata. It was dated November 7, 2017, making it over three months old. In the email, the investigator explained to Everett that he and another investigator had interviewed Zapata, the victim's former work supervisor, by telephone on June 2, 2017. The investigator stated in the email that Zapata "knew nothing about [the victim] accusing anyone of sexual misconduct." The investigator continued: "Mr. Zapata also made it clear ... that he wanted ‘nothing to do with’ our investigation or ‘going to court.’ [¶] Seemed like a non-witness at the time and unless he has new information or a reason he withheld info in the first interview is not someone who should be subpoenaed to a trial."

After reviewing the email, Judge Karesh noted that it was "completely different" than what Everett had represented; the email showed that Everett had been aware of Zapata for months, and that Zapata would not provide testimony favorable to the defense. Everett responded that there were additional emails that Judge Karesh had not read. Judge Karesh asked Everett to send the emails to the court and permitted Everett to leave the courtroom to send the emails.

Everett then left the courtroom. Without warning or explanation, Everett did not return, leaving his client, the prosecutor, and the judge waiting for nearly an hour for him to return. As a result, Judge Karesh was unable to rule on the continuance motion or to assign the case out for trial. Judge Karesh instructed the defendant to return to court the following morning, and asked the courtroom clerk to instruct Everett to return the following morning as well.

The following morning, February 21, Everett did not show up to court at the start of proceedings. Judge Karesh told defendant that "we're sort of put in a difficult position. I don't know where your lawyer is." Defendant stated that Everett had called him the night before and said he would be in court. Everett eventually appeared in court later that morning. Judge Karesh asked Everett to explain his absence from the previous day. Everett said he left the courtroom the previous afternoon because he gets better reception on his cell phone from outside the courtroom, which makes it easier to send emails. Everett also told the court that his understanding was that another attorney, John Lee, had appeared for him earlier in the day, and that Lee had informed the court that Everett would need to leave early. Judge Karesh said he was not so informed. In fact, the courtroom bailiff stated that he had gone to another courtroom to talk to Lee, who told the bailiff that he would not be standing in for Everett because of the serious charges that defendant was facing. Everett did not notify the court clerk of his appointment either.

Judge Karesh then asked Everett if he had the additional emails he referenced from the previous day. Everett said he did, and, as he did the day before, asked Judge Karesh for permission to step outside of the courtroom to send them. Judge Karesh declined, saying, "Mr. Everett, you did that yesterday and disappeared without telling the Court. Why would I let you do that again?" After confirming that the prosecution was ready to proceed to trial, Judge Karesh then assigned the case for trial to Judge Steven Dylina. Everett immediately exercised a peremptory challenge ( § 170.6 ) against Judge Dylina. Judge Karesh accepted the challenge, and assigned the case for trial to a second judge, the Honorable John L. Grandsaert.

The parties appeared before Judge Grandsaert later the same morning. Everett indicated that he was not ready to proceed to trial. Everett once again sought to continue the trial and referenced the same emails he had tried to send to Judge Karesh that purportedly showed he had only recently located a witness who would testify that the victim had previously made false allegations against third parties. The prosecutor objected to the continuance request and informed Judge Grandsaert about the proceedings before Judge Karesh. Nevertheless, Judge Grandsaert said he would review the emails to determine whether there was good cause for a continuance since Judge Karesh did not appear to have issued a formal ruling on the issue. Judge Grandsaert granted...