THE PEOPLE, Plaintiff and Respondent, v. MAIBREN DORIAN JOHNSON, Defendant and Appellant.
No. B240837
Second Dist., Div. One.
Aug. 8, 2013.
218 Cal.App.4th 938
COUNSEL
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CHANEY, J.—Defendant Maibren Dorian Johnson violated probation and was sentenced to six years in prison for a 2011 robbery conviction. He contends the trial court violated his right to receive a timely probation revocation hearing when it continued the hearing for two weeks without good cause. He also asks that we independently review the trial court‘s in camera review of police personnel records. We conclude that although no good cause justified continuing the probation revocation hearing, Johnson suffered no prejudice from the delay, and we agree with the trial court that the police personnel records it reviewed contained no discoverable information. Therefore, we affirm.
BACKGROUND
In 2011, Johnson pled no contest to two counts of second degree robbery and was sentenced to six years in prison. The sentencing court suspended execution of the sentence and placed Johnson on three years’ formal probation with various terms and conditions, including the requirement that he agree to submit to searches by law enforcement officers with or without a warrant or probable cause.
On January 13, 2012, Sheriff‘s Deputies Eddie Ochoa and James Chambless detained Johnson and, upon searching him, found 18 baggies of marijuana and four debit and credit cards in names other than his own.
The probation department filed probation violation reports on January 18 and February 1, 2012, and after a one-month continuance requested by Johnson, a probation revocation hearing was calendared for April 12, 2012. On February 7, 2012, Johnson filed a Pitchess1 motion requesting pretrial
On April 12, 2012, the prosecutor requested a further continuance, stating, “[w]e were attempting to do this today. Unfortunately the witnesses are not here, so I cannot proceed today.” The prosecutor offered no further explanation. Over Johnson‘s objection the trial court continued the hearing to April 27.
At the April 27, 2012 probation revocation hearing, the trial court found Johnson was in violation of the terms of his probation and ordered execution of the six-year prison term that had been imposed but suspended in 2011. Johnson timely appealed.
DISCUSSION
The Revocation Hearing Was Not Unreasonably Delayed
Johnson contends the trial court violated his right to have the probation revocation hearing held within a reasonable time when it continued the hearing from April 12 to April 27, 2012, without good cause. We agree that the hearing was continued without good cause but conclude Johnson suffered no prejudice from the delay.
The Legislature has determined that although “[t]he welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time ...,” excessive continuances have clogged the courts, resulting in “adverse consequences to the welfare of the people and the defendant.” (
Respondent preliminarily argues that despite its express language, section 1050‘s requirement of good cause to continue “any hearing in a criminal
Whether good cause exists is a question for the trial court‘s discretion but requires at a minimum that the party seeking continuance demonstrate it has prepared for the hearing with due diligence. (See People v. Jenkins (2000) 22 Cal.4th 900, 1037 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v. Ferrer (2010) 184 Cal.App.4th 873, 879 [108 Cal.Rptr.3d 908] [“To show good cause for a continuance, a party must make a showing of diligence.“].) “Particularly, when the party seeks a continuance to secure a witness‘s testimony, the party must show that he exercised due diligence to secure the witness‘s attendance, that the witness would be available to testify within a reasonable time, that the testimony was material and not cumulative.” (People v. Henderson (2004) 115 Cal.App.4th 922, 934 [9 Cal.Rptr.3d 655].)
Here, the prosecutor made no effort to show good cause for a continuance, but stated only that witnesses were unavailable. He made no showing that he had exercised diligence to secure the witnesses’ attendance and gave no assurance that the anticipated testimony would be material and noncumulative.
Johnson argues the trial court abused its discretion when it granted the prosecution‘s request for a continuance. We disagree. Normally, the prosecutor‘s failure to show good cause would require the trial court to deny the motion for a continuance under section 1050, subdivision (d), which provides, “[i]f the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted.” However, the 2003 amendment to section 1050 added subdivision (l), which provides, “This section is directory only and does not mandate dismissal of an action
Even if the trial court abused its discretion when it granted a continuance, Johnson suffered no prejudice because his probation revocation hearing was held within a reasonable time. A probationer has a due process right to a probation revocation hearing within a reasonable time after the probationer is taken into custody. (See Morrissey v. Brewer (1972) 408 U.S. 471, 488 [33 L.Ed.2d 484, 92 S.Ct. 2593]; In re Williams (1974) 36 Cal.App.3d 649, 653 [111 Cal.Rptr. 870].) Morrissey v. Brewer noted that a lapse of two months would not appear to be unreasonable. (408 U.S. at p. 488.) In re Williams noted that two months 25 days between the petitioner‘s date of arrest and a parole revocation hearing was not an unreasonable delay. (36 Cal.App.3d at p. 653.) Here, Johnson was arrested on January 13, 2012, and the probation revocation hearing was held on April 27, 2012, a lapse of approximately three months, at least one of which was attributable to his own request for a continuance, which the trial court granted. Johnson does not indicate in what respect the delay was unreasonable, as neither he nor the record suggests it resulted in unavailability of witnesses or loss of evidence or in any way hindered his ability to defend against the probation violation allegations. He therefore has not demonstrated the lapse of time prejudiced him or was otherwise unreasonable.
Pitchess Motion
Before the revocation hearing, Johnson asserted the arresting officers, Deputies Ochoa and Chambless, filed a report in which they falsely stated he was found in possession of marijuana and stolen debit and credit cards. He filed a Pitchess motion requesting pretrial discovery of the deputies’ personnel records, specifying he sought any records relating to “acts of dishonesty, fabrication of probable cause or other acts of misconduct.” The trial court ordered that the records be produced for inspection, reviewed them in camera, and concluded no discoverable material existed. Johnson now requests that we independently review the in camera proceedings to determine whether the trial court properly exercised its discretion in denying discovery. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232 [114 Cal.Rptr.2d 482, 36 P.3d 21]; People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415 [78 Cal.Rptr.3d 907].)
After having independently reviewed the sealed reporter‘s transcript of the in camera Pitchess hearing, we find no abuse of discretion. (People v. Mooc, supra, 26 Cal.4th at p. 1228.)
The judgment is affirmed.
Mallano, P. J., and Johnson, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied November 13, 2013, S213430.