California Cases October 23, 2020: People v. Hamilton

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Del Norte County Super. Ct. No. CRF17-9316)

Defendant Anthony Hamilton was sentenced to 40 years to life in state prison for the attempted premeditated murder of a law enforcement officer and personal use of a firearm causing great bodily injury. He asserts one error on appeal: the trial court abused its discretion in denying his fourth and fifth requests to continue trial. We conclude there was no abuse of discretion, and certainly no prejudice. We thus affirm.

The Shooting of Deputy Sheriff Joseph Aguirre

On June 29, 2017, two California Highway Patrol officers attempted to stop a vehicle with expired registration tags. A pursuit ensued, ending when

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the officers lost sight of the vehicle. Another officer later spotted the vehicle with two individuals running from it. He detained one of them and broadcast a description of the other—an armed male subsequently identified as defendant.

Deputy Sheriff Joseph Aguirre arrived at the location of the vehicle and saw defendant running through a grove of trees. He turned on his body camera and, with his weapon drawn, began searching for defendant. The deputy saw him in heavy brush, and as he reached for his radio microphone to notify other officers of defendant's location, a gunshot came from the brush and struck his left wrist and his radio microphone and then penetrated his left shoulder. He fell, returned fire, sought cover, and broadcast that shots had been fired.

Two nearby officers heard the gunshots and came running. Deputy Aguirre and the two officers fired in defendant's direction. When they were able to approach him, they found him lying on the ground with a revolver next to him, two rounds having been fired and four live rounds remaining. Defendant suffered multiple gunshot wounds.

The Charges Against Defendant and His No Contest Plea

On August 14, 2017, an information charged defendant with attempted premediated, willful, and deliberate murder of a peace officer, assault with a firearm on a peace officer, possession of a firearm by a felon, and fleeing from a peace officer. The first two counts were accompanied by five enhancements: Penal Code section 12022.53, subdivisions (b) through (d); section 12022.5, subdivision (a); and section 12022.7, subdivision (a).

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Defendant filed five motions to continue trial, discussed at length below. The first three were granted, the last two denied.

After the court denied the fifth motion, defendant entered into an open plea of no contest to the attempted murder charge and admission of the section 12022.53, subdivision (d) allegation. The remaining charges and enhancements were dismissed. The plea agreement provided that defendant could seek a certificate of probable cause to "challenge the court's denial of defense's request for continuance of trial and for defendant to seek a new trial on appeal."

On April 23, 2019, defendant was sentenced to 40 years to life in prison.

Defendant filed a timely notice of appeal. As provided for by the plea agreement, it contained a request for a certificate of probable cause permitting him to challenge the trial court's denial of his motions to continue

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the trial date "due to unavailability and/or refusal of defense experts to appear at trial." The court granted the request.

Defendant's Motions to Continue Trial

Motion No . One

On January 30, 2018, with trial set for April 16, defendant filed his first motion to continue trial. The motion asserted multiple grounds for the request, including incomplete medical records recently received for the injured deputy, a recent change in defense investigators, and the unavailability of an expert the defense intended to retain. The prosecution did not oppose the motion, and the court granted it, continuing trial to August 20, 2018.

Motion No . Two

On June 15, 2018, defendant filed a second motion to continue trial. This time, defendant argued a continuance was necessary because the court "fail[ed]" to timely process a request for appointment of and/or funding for an investigator and an forensic audio-video expert, defendant was still owed certain discovery, and defense counsel was contemplating filing a motion to

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be relieved as counsel because the court had purportedly been "refusing to authorize full payment" of her fees and costs. The court granted the motion, continuing trial to October 15.

At an August 16, 2018 readiness conference, defense counsel advised the court that she had spoken with defendant the night before and he was "insisting on entering a plea." According to counsel, she had proposed a plea she felt was appropriate but the prosecutor had rejected it. Defendant nevertheless wanted to enter a plea that day. As the prosecutor and defense counsel were discussing what had previously been offered and what might still be on the table, defendant interrupted to say, "I'm ready to accept all charges. I don't even care about a plea deal at this time. I just want to get out of here and get my sentence done with, you know." Cautioning defendant to "wait and get a package together that's going to take care of everything," the court put the matter over to the following week for a further readiness conference and "possible entry of plea."

At the hearing the following week, defense counsel informed the court that defendant had signed a felony plea declaration pleading to attempted premeditated murder and admitting the 25-years-to-life enhancement. Although the plea was not pursuant to a plea agreement, the prosecutor agreed to accept it. There followed discussion about the status of the ballistics analysis, which, according to the prosecutor, was still being completed by the Department of Justice. When defense counsel stated that

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her experts were "100 percent convinced that Deputy Aguirre was shot from behind" by another officer, the court asked defendant why he wanted to enter a plea before seeing the results of the Department of Justice analysis. Defendant said he understood the lab tests were not yet done but he wanted to enter the plea anyhow, explaining, "Well, frankly, your Honor, I've been sitting in this jail for over a year now. And . . . I just don't see that there's going to be any positive outcome in this case. And I'm just ready to go ahead and head on to prison and get on with it, you know, with whatever they've got going on." Asked if he understood that the plea he was willing to enter would "most likely result in you spending the rest of your life in prison," defendant answered, "That's fine."

Defense counsel did not agree with the plea and believed the court needed to relieve her as counsel if it intended to accept it. The prosecutor disagreed. When the court suggested it put the matter over to the following week so it could "take a look at it," defendant said, "If we don't want to do a plea, then I just want to take it to trial." The court asked defendant whether he wanted the court to look into it and possibly accept the plea the following week or just confirm the trial for October 15. Defendant answered, "Yeah. Just go ahead and confirm the trial."

Motion No . Three

On October 9, 2018, defendant filed a third motion to continue trial. The motion was based on a medical issue defense counsel was suffering. The court again granted the motion, continuing trial to January 28, 2019.

On October 24, the prosecutor filed a motion to compel discovery from defendant. According to the prosecutor, he had served a discovery request in August 2017 but had not received any expert discovery despite that the defense had retained expert Kevin Stonebarger in February 2018 and experts

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Deborah Stonebarger and Greg Stutchman in June 2018, and despite that trial had been set for October 15. He further represented that he had attempted to contact these experts to discuss their conclusions, but defense counsel was preventing him from speaking to them prior to receipt of their written reports, which they had not yet completed.

At a November 6 hearing, the court granted the motion, ordering the defense to produce by November 30 the experts' records supporting their opinion that Deputy Aguirre was shot from behind by another officer and ordering that defense counsel was prohibited from blocking her expert witnesses from speaking to the prosecution about their opinions in the case.

On December 3, the prosecutor filed a follow-up motion to compel discovery. He represented that following the November 6 hearing, defense counsel had communicated the court's order to the defense experts, and all three experts had responded that they did not have any such documents and were still working on their reports. The prosecutor urged the court to order the defense to turn over the unfinished reports, as they were actually their "notes" and therefore discoverable.

The motion was heard on December 19. Defense counsel acknowledged that the three experts had not turned over any discovery, but said, "I can't give him what I don't have." She also claimed her requests for payment to the experts had not timely been approved by the court and in the absence of payment for their services, the experts had ceased working on the case for a while, although they had recently been paid and had since resumed their

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work. The prosecutor requested that the experts be excluded as trial witnesses. The court ordered the experts to turn over information that formed the basis of their opinions "forthwith"—within a week—adding, "if not, they might not be able to get testimony in trial."

At a follow up hearing on January 10, the prosecutor confirmed that he received "some discovery" from defense counsel, including "some video data from Kevin Stonebarger relating to gunshot tests that he did and videoed back in September of last year," and he "had an opportunity to talk to Deborah Stonebarger." Accordingly, he was "good to go" for the trial date.

Motion No . Four

On January 14, 2019, defendant filed a fourth motion to continue trial. This motion asserted only one basis for the request: Deborah would not be available for trial because she had recently accepted a new job offer and would soon be beginning a six-week mandatory training program followed by a four-week transition period. The defense theory of the case was that although defendant fired the first shot, he did not hit Deputy Aguirre, who was accidently shot from behind by a fellow law enforcement officer. Accordingly, in his motion, defendant explained that Deborah had been appointed as an expert in wound pathology and crime scene reconstruction and that her testimony was "also an indispensable component of the animation prepared by 3D Forensics. Without her testimony regarding exit and entry wounds, the animation cannot be used at trial." Defendant also argued that Deborah's testimony was necessary to impeach the prosecution's evidence because her opinions "absolutely contradict[ed] statements in the CHP Investigation surmising that no other law enforcement officer fired a weapon and that no law enforcement officer fired their weapon from a

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location directly opposite of where Deputy Aguirre was positioned during the beginning of the gunfire."

In support of the request, defendant submitted an "expert declaration" of Deborah, not signed under oath, in which she stated:

"1. In or around March of 2018, I was appointed as an expert in the above matter. My areas of expertise relevant to this case are wound pathology, trajectory, and shooting incident reconstruction. Since my appointment as an expert, I have reviewed all discovery in this case, including numerous written reports, videos, and photographs. I am currently preparing an expert report for this matter. [¶] . . . [¶]

"3. On January 18, 2019, I will begin working for a new employer at a new job. I have been in the application, interview, and candidate selection process since approximately October of 2018. I was offered employment at the end of December of 2018. The initial mandatory training phase for my new employer, Salt River Project, begins January 18, 2019, and is six weeks in duration in which no absences are allowed. The six-week training period is followed by a four-week transition phase, also in which no absences are allowed.

"4. Due to my new employment, the earliest I will be available for testimony in this matter will be April 8, 2019."

Also appended to defendant's request were copies of two e-mail exchanges, the first of which was an exchange between Deborah and defense counsel Karen Olson. In the first e-mail, dated January 10, 2019, Deborah advised that "as soon as we return from vacation, I will finish my report in the Hamilton matter," promising to "send it by close of business on January 21, if not sooner." Olson responded that if Deborah was still of the position that she would not be available to testify at defendant's trial as

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scheduled, she should forward detailed information about her new job and the required training so Olson could submit it in support of a motion to continue. Deborah responded that she would provide the requested information, closing her response with this: "If this company wasn't so reputable I would never beg to continue a trial. It was ridiculously difficult to get the offer (lengthy application and on-line assessment, multiple interviews, one of which was in person with about 20 supervisors, and a drug test) so I don't want that all to be in vain." Olson responded, "I understand totally. It just puts me in a bad position with respect to another continuance request this late in the game. It is what it is and the judge can decide what to do. At least I will have done my part in preserving the record for appeal if the judge denies the continuance request."

The second e-mail exchange was between Deborah and her new employer and showed that on January 3, the employer confirmed an "offer of employment as a temporary ¾ Flex Customer Service Representative" at $18.53 per hour with a starting date of January 18, 2019, and that Deborah accepted the offer the same day.

The prosecution opposed defendant's request in a written opposition consisting of this concise argument:

"When the January 28, 2019 trial date was selected, Ms. Deborah Stonebarger agreed and committed to that date. For both sides, arrangements have been made and witnesses secured. All the while, the victim in this case, Deputy Joseph Aguirre, had to suffer through prior continuances granted to Ms. Olson.

"Ms. Stonebarger is a defense 'expert' retained at the rate of $75 per hour, which is more than four times as much per hour than her new job offer. Ms. Stonebarger furthermore testified in the David Soldano case (also at the

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rate of $75 per hour) that she is currently employed in Arizona, so this new job offer has even less meaning. This court has been paying her $75 per hour bills. The Hamilton case is her job right now. She made a commitment. She cannot break that commitment now.

"This new job offer is not good cause for a continuance."

At a January 17 hearing on the motion, Olson informed the court that on January 9, she handed Deborah a subpoena for the upcoming trial, but Deborah handed it back, saying she would not be available for a January 28 trial date because she had accepted a job offer that would require weeks of mandatory training. According to Olson, she attempted to convince Deborah to delay her acceptance of the offer or to make arrangements with the employer to delay the training, but Deborah refused. Olson was certain Deborah would not appear at trial, which, she argued, could be grounds for a mistrial or a successful appeal.

The prosecutor responded that Deborah committed to the January 28 trial date before she got the job offer and had been paid to work on the case

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but now "she's essentially changing her mind." Meanwhile, he had made arrangements with his witnesses, including the surgeon who had operated on Deputy Aguirre and had rearranged his schedule in order to block off an entire day for his testimony. The prosecutor also noted that the court continued the trial in another case to accommodate the Stonebargers' vacation schedule, going on to argue:

"The Stonebargers are really, essentially, questionable choices by the defense as experts. They have done minimal work, although they have billed exuberant [ sic ] hours in this case. They have written drafts of reports. Ms. Deborah Stonebarger did a three-page report that looks like it could have been written in an hour and not even addressing any of the wound pathology of [defendant] that she was assigned to this case to testify. However, I talked to her. She has all these high opinions. And she's ready to testify about them.

"But they've been dragging their feet. And if you recall, even in the Soldano case, we had to continue that because they had to go on a vacation, which, I believe, was a cruise the next day.

"So we are not at the mercy of the Stonebargers' schedules. This is a court. This is a court where there have been dates set, commitments made, arrangements made, promises made. She cannot break them now. Ms. Stonebarger doesn't even do the courtesy of giving her declaration under penalty of perjury. Just this little declaration. 'I got a part-time job offer. And, sorry, I can't make it. How about April?' That's not good cause.

"I didn't even bother telling Deputy Aguirre that there's a motion to continue today because it's just so ridiculous the request that's being made. I can see under no circumstances it being granted.

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"She will be here. She's subpoenaed. If she doesn't show, you can issue a warrant. But saying that she cannot be here for one day to testify, that makes no sense. And she's saying it all because she received this part-time job."

The prosecutor also disagreed with Olson's assertion that denial of the motion would be grounds for a mistrial or a successful appeal, explaining:

"Their own video forensics analysis indicates that [defendant] took a shot first at Deputy Aguirre. They're just claiming that shot missed and that Deputy Aguirre was shot from the back by a derelict CHP officer instead of being shot by the defendant. So what they're focusing on is the Penal Code section 12022.53(d) enhancement, the 25-to-life enhancement. Ms. Stonebarger's testimony goes nothing to the attempted murder, to the assault with a firearm, to discharging a firearm during intent to murder or discharging a firearm at a peace officer."

In any case, he concluded Deborah had been served, the court could order her to be there, and she would find a way to be there for one day.

The trial court denied defendant's motion, with the following explanation:

"This case was set to the 28th to accommodate the Stonebargers' schedule back in October of last year. Somewhat disturbing that an ex-employee of the Department of Justice, who is duly served, to decide to, apparently, ignore Ms. Olson's subpoena power, the document that you, apparently, handed to her. She very well knows the protocol, having been an employee of the Department of Justice in this state.

"Apparently, Ms. Stonebarger took a job without informing Ms. Olson about it, without informing the court about it, obviously, knowing her previous obligation that a trial was set at her request to the 28th of January,

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and arbitrarily decided to seek, apparently, other financial opportunities without any communication with Ms. Olson or the courts.

"How long Ms. Stonebarger has known about this, I do not know. She states not under penalty of perjury, you know, shortly sometime in December, as I recall, from her declaration. But apparent to me that she completely knew about the trial dates and she was duly and appropriately subpoenaed under the state law and subject to our jurisdiction.

"Her declaration, again, not under penalty of perjury, fails to state whether she even queried her employer whether she can have that date off. And that she, like in most states, is absolutely obligated to appear under subpoena. And, like most employers, they are absolutely obligated to allow you to appear by subpoena. There's nothing from her employer stating to the contrary. The only information I have before me is that she did a blanket acceptance. And I don't know what those terms and conditions are of her employer. She did not counter, knowing her dates and obligations; and that she, apparently, has been—this trial date has been set up at her request. And she's been duly served."

Motion No . Five

On January 18, 2019—the very day after the trial court heard argument on and denied defendant's fourth continuance motion—defendant filed a fifth such motion. This motion was based on the unavailability of another expert witness, defense counsel having been "notified by Defense Expert, Gregg Stutchman that he will not be available for trial due to serious medical issues," and his future availability was unknown, pending evaluations and treatment recommendations. According to defendant, Stutchman was an expert in audio and video forensics, and his testimony would be "an indispensable component of the animation prepared by

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3D Forensics. Without his testimony regarding his audio/video clip and analysis which supports the 3D Forensic animation we cannot provide a proper defense for defendant at trial. The crux of the defense in this matter is based on Mr. Stutchman's analysis of the audio/video evidence received through discovery. Mr. Stutchman's testimony is also necessary to establish the number of bullets fired, what weapons were discharged, time between shots, and who fired at a particular point in time. There are no other experts currently retained by the Defense having the necessary expertise to testify as an expert with respect to audio/video forensics."

Defendant's motion was supported by an email sent that morning by Stutchman to Olson in which Stutchman said he had received the subpoena the day before and would be unable to testify as scheduled due to significant medical issues he was suffering. He explained that he had recently spent several days at the Mayo Clinic in Minnesota and would be returning there on January 20 and again in February for further appointments. He also detailed other work commitments that would prevent his appearance: "I have a trial currently going in San Francisco. The plaintiff will put on their case while I am at the Mayo Clinic. The defense will begin their case on 1-28-19, and I don't know yet exactly when I will be needed. I have a deposition on 1-31-19, which has been put off until the 31st being the last day it can be done. The subpoenas on [this] case is to be in court in Crescent City on 1-29-19. That is a six-hour drive each way, obviously a two-day trip. At this point, I am not physically able to do that." He advised that the trial would need to be postponed for at least two months in order for him to be able to testify.

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Argument was heard on defendant's motion on January 22. Olson argued that Stutchman's unavailability for trial was compounded by the fact that Deborah would not be appearing to testify, and that Kevin had also indicated he did not intend to appear, in Olson's words, "out of spite." According to Olson, this would leave her with one expert whose animation was based in part on the opinions and testimony of the other three witnesses; without them, his testimony would lack foundation. Thus, without a continuance, she argued, she would have no experts or witnesses to call at trial, and, in short, "no defense." She represented that if the court denied the motion, defendant would have no choice but the enter a no contest plea with a stipulation for a certificate of probable cause challenging the denial of the motion.

The prosecutor countered that defendant would have no defense even if the experts appeared at trial. According to the prosecutor, Stutchman was of the opinion that defendant fired first, and it was defendant's theory that Deputy Aguirre returned fire and then another officer who was behind Deputy Aguirre fired, accidently striking the deputy. The prosecutor had directed Olson's attention to People v . Bland (2002) 28 Cal.4th 313 ( Bland ), pursuant to which the section 12022.53, subdivision (d) enhancement would still be true under the defense theory because defendant firing the first shot was the proximate cause of Deputy Aguirre's injury, even if his bullet did not hit the deputy.

The prosecutor also suggested that the court issue warrants for both Stonebargers if they did not show up to testify. And as to Stutchman, he noted that Stutchman said he was unavailable for trial due to medical issues yet he had other work commitments he was still fulfilling so "[h]e's just picking and choosing which cases he's going to work on. He committed to this

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date, the January 28th date, when we set the trial. And so now he's saying, 'Oh, I got this stuff in San Francisco. His office is in Oakland—I'm sorry, Napa—by the way. I got this stuff in San Francisco. And that's another reason. And he's clearly intending to testify in those cases, but he complains about the six-hour drive that it would be to Crescent City." The prosecutor noted that Stutchman signed his declaration in Oakland, and there was a direct flight from Oakland to Crescent City. He also pointed out that Deputy Aguirre had suffered extensive stress as a result of the shooting and had suffered through the multiple continuances granted defendant. He concluded by arguing that "[e]verybody"—Deborah, Kevin, and Stutchman—had been subpoenaed, had agreed to the trial date, and was capable of appearing but was "just making different choices."

The court queried how Stutchman was getting to the Mayo Clinic, and Olson advised he was flying from the Bay Area. The court observed that with his office in Napa, Stutchman could likewise take the short flight to Crescent City. It also noted that the trial was slated to be three weeks, with the prosecution putting on its case for at least the first week, so the defense would not be putting on its case until well after January 28 or 29, and Stutchman could also be taken out of order.

Argument on the motion continued on January 24, at which time Olson represented that Stutchman was at the Mayo Clinic, unsure of when he would be returning to California. She submitted for the court's review a letter from a doctor at the Mayo Clinic who said that Stutchman was recommended for outpatient treatment and had been advised to reduce his workload.

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Deputy Aguirre was present at the hearing and told the court he opposed another continuance because every time he had to prepare for trial, it caused him stress, as did reliving the incident, for which he was still seeking mental health treatment. The stress was preventing him from returning to work, and he needed the case to be over before he could consider working again.

Olson reiterated that Deborah had no intention of appearing for trial, and without her, Kevin, and Stutchman, the defense was left with only an expert in 3D forensics, an area of expertise that was useless without the other experts there to lay the foundation. She also noted that the Stonebargers were not responding to her communications and had not provided their reports or any other exhibits, investigative material, or information relevant to the defense. Thus, according to Olson, "I'm just stuck in this unattainable position of being forced to go forward with trial with absolutely no witnesses and no exhibits. That's not to say that I won't scramble this weekend if that's what it takes. But it still puts me in a very bad position."

The prosecutor pointed out that he had brought Bland , supra , 28 Cal.4th 313 to Olson's attention, reiterating his belief that under Bland , defendant's theory of the case was no defense to the section 12022.53, subdivision (d) enhancement. He also claimed that his "much more qualified

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audio expert" "tore up" Stutchman's "really sloppy report" and determined that the 10 shots fired after defendant fired the first shot were all fired by Deputy Aguirre. That, the prosecutor asserted, was why Stutchman did not want to testify.

After Olson reiterated that if the trial went forward as scheduled, she would have no expert witnesses and thus no defense, the court ruled:

"In regards to the Stonebarger issue, that's not really relevant, per se, to Mr. Stutchman, as it's an independent issue. But it is a reality regardless. The reality, apparently, is Mr. Stonebarger has been duly subpoenaed. And he [is], essentially, giving the nose-up, saying, 'I'm going to ignore the power of the court. Forget you. I'm not coming.' Although he's been duly subpoenaed.

"The typical remedy for that is we can get an arrest warrant. Probably not the best idea for someone who purports to be an advocate for law enforcement, work both sides as an expert witness.

"Same thing with Ms. Stonebarger. She's doing, essentially, the same thing. Essentially saying, 'Listen, you know what, I'm going to blow off this job for another job. And so forget that.' Probably not a real good decision, based on someone who wants to build a reputation as an expert witness who works both sides of the law, someone who worked with the Department of Justice. Just odd behavior.

"It does, in reality, probably put Ms. Olson in an odd position. But there are remedies for that. The reason I'm bringing that up, in light of Mr. Stutchman, is because Mr. Stutchman states, you know, 'I feel that there may be too much stress.' He provides, apparently, a letter from a medical doctor who states the evals are done. They concluded January the 17th. 'We know not what we're going to recommend.' Outpatient. Makes no mention of

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in-patient. Makes no mention of [his health issue] preventing him from performing.

"I do recall a letter earlier from Mr. Stutchman saying, 'Hey, I have two other matters I have to attend to.' So it's clear to the court he's going to be coming back and dealing with some cases and whatnot.

"I also have no indication how long his testimony will be, how inconvenienced he will be. It could be 15 minutes; it could be days; I don't know, based on what I heard so far. I'm inclined to take him out of order to meet his needs. The doctor does not opine that he cannot do this. There's simply a recommendation that he reduce his case load. I mean, that's it. That does not sound like good cause by itself.

"However, the reality is something different. The reality is this. It comes to trial and we're standing here. And at some point Mr. Stutchman doesn't show up and Ms. Olson presents under declaration that he's in a hospital dealing with a life-threatening issue by a doctor, this trial is going to come to a screeching halt. And then we will have just wasted weeks of time, again, at the inconvenience of Mr. Aguirre and the defendant, and you will all have to be back here."

After confirming with the prosecutor that he was willing to take that chance, and the prosecutor confirming that he would accept a telephonic appearance by Stutchman, the court discussed the ramifications of having to procure warrants for witnesses who disregard their subpoenas and the impact it would have on a jury trial. The court then concluded with this:

"At this juncture, it appears to me that Mr. Stutchman is able to get on a plane. There's nothing that says he can't get on a plane to be out from his home of 45 minutes. There's no indication that he's stuck in Minnesota, that he has to stay there by medical direction, that he is in a hospital.

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"As far as I can opine, he's staying at a hotel and just, you know, going to and from and driving around just like a normal human being could. The recommendation is simply to reduce his workload. There's no indication how complex his testimony is. Whether it takes five minutes or days, I know not. So at this juncture, I do not find good cause predicated upon everything that I have said before." The court therefore confirmed trial for January 28.

Later that day, defendant entered an open plea of no contest to the attempted premediated murder charge and admitted the section 12022.53, subdivision (d) enhancement.

Post-Plea Hearing Regarding Experts

On January 29, 2019, Olson filed a request to place the matter on court's calendar "for the purpose of addressing expert(s) failure to appear for the scheduled trial dates they were subpoenaed to appear at."

Per the request, the matter came on for hearing on February 7, 2019. The hearing began with this request by Olson:

"Your Honor, I'm requesting a court minute indicating that despite the trial being vacated, I did not call my expert witnesses off, mainly because they hadn't been responding. And I want to get the exhibits and some of the summaries that they did for me back from them. So I did not call them off on the subpoena. I did not tell them that the jury trial was vacated so that they would appear on the subpoenas. Because I know there was some question in Mr. Zoochi's [the prosecutor] mind and my mind whether or not they would show if, you know, the trial went forward.

"So for all intents and purposes, they were under the assumption that the trial was going forward, yet they still did not appear on the dates that they were subpoenaed to be here and served with the subpoena.

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"So I just need a court minute indicating that there were no appearances by Kevin Stonebarger on the 28th of January and no appearance by Deborah Stonebarger on the 1st of February. Those were the two dates that they were subpoenaed to be here."

The prosecutor responded with some "supplemental information":

"Ms. Olson can correct me if I'm wrong on any of this, because it's information I got from Ms. Olson. But on January 28th, the day that the trial was supposed to start, Kevin did send—Kevin Stonebarger did send Ms. Olson a text message, which stated, in part: 'Good afternoon. I received an email from Stutchman stating that he is on the mend and will be ready for trial in April. He also mentioned that he had sent a couple emails and didn't get any responses. Just wanted to make sure that all is good.'

"With follow-up conversations from Ms. Olson, I understand there was some back and forth with them texting on that day, on the 28th, where, ultimately, during that back-and-forth text messaging, Ms. Olson did disclose that the trial was no longer going.

"So Deborah Stonebarger is the wife of Kevin Stonebarger. And any failure to show after that date, it would be presumed she certainly had—after the date of January 28th, it would, certainly, be presumed that her husband informed her that the trial was no longer going.

"As far as Kevin Stonebarger, January 28th was supposed to be the first day that the trial started. That would have been jury selection. The court scheduled a jury panel to come in on two separate days, anticipating it could have taken two days. So it wasn't for sure a day where defense was going to present evidence. And he was in contact with Ms. Olson.

"I don't know if he received from other means that the trial was continued. There was an article in The Triplicate about it being continued as

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well. I forget the date of that. It may have been after the 28th. Actually, I think it was after the 28th. But I don't know if he may have heard it through other sources, such as law enforcement, because I certainly told everybody on my end, DOJ and all the officers. So it was certainly common knowledge on my end.

"As far as Mr. Stutchman, I did receive word that he ended up showing for his deposition on January 31st, the one that he referenced in his declaration requesting a continuance. So I received that word from my audio expert, Dr. Begault, who is on that same case with Stutchman, for January 31st.

"So Kevin indicated that Stutchman was on the mend. And Stutchman showed for his deposition on January 31st."

The prosecutor then added "one more thing regarding Stutchman." Apparently having received Stutchman's report, the prosecutor read a passage from it, including this:

"Turning to page 2, he outlines five analyses that he was tasked to do.

"No. 5 was: 'Can it be determined who fired the first shot?'

"And then under results of the analysis, No. 5, he wrote: 'The first shot was fired by the defendant. The image below shows the muzzle blast from that shot. It is clearly not from Deputy Aguirre's semi-auto.' "

Olson responded that she was surprised when she heard Stutchman had appeared for his January 31 deposition. She also advised that prior to the hearing on the fifth continuance motion, she had again confirmed with Deborah that she had no intention of appearing at trial because of her new job.

The court told Olson that as to the Stonebargers, "You have made your record in that regard. I have no idea whether the Stonebargers called the

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courts to determine whether the trial was still on, whether they were out in the lobby and heard from anybody else. No idea whatsoever. Had they shown up, not knowing there was a trial, it would have been a horrific and tremendous waste of tax money, being there was no trial, and that they would have probably been obligated to have been paid out of tax funds for that. So I do not in any way encourage people not to tell their experts just because of that."

As to Stutchman, the court said, "And it sounds like to me that Mr. Stutchman could have and would have been here for trial, based on his conduct prior to the trial, the depos, and being on the mend."

Olson responded that she was not asking "anything to be noted in the minute regarding Mr. Stutchman," adding, "I did tell him that the trial had been vacated because of his health issues. I wasn't going to have him come for no reason."

The prosecutor then added one more point, asking Olson, "[P]art of the back and forth that you had with Mr. Stonebarger on January 28th, didn't he indicate that had he known the trial was going, he would have shown up?" Olson responded, "He didn't say it like that. He said, 'Had I known I was supposed to be there, I would have shown up. [¶] . . . [¶] And I told him, 'You were served with an order to attend court. And neither myself nor my staff called you to tell you that the trial was vacated and you were no longer needed.' "

The Applicable Law

The California Legislature has recognized the importance of the expeditious resolution of criminal cases, providing in section 1050 that "the criminal courts are becoming increasingly congested with resulting adverse

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consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses. Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice." (§ 1050, subd. (a).)

Consistent with the foregoing, in a criminal case, a trial continuance "shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) Whether good cause exists is a question for the trial court's broad discretion. ( People v . Jenkins (2000) 22 Cal.4th 900, 1037; accord, People v . Mora and Rangel (2018) 5 Cal.5th 442, 508 ["A trial court has broad discretion to grant or deny continuances"].) We review a trial court's denial of a continuance request for abuse of discretion. ( Jenkins , at p. at p. 1037.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked." ( People v . Beames (2007) 40 Cal.4th 907, 920; see also People v . Hajek and Vo (2014) 58 Cal.4th 1144, 1181 [" ' "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied" ' "].)

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Courts have long described an abuse of discretion in terms of a decision that "exceeds the bounds of reason" ( Beames , supra , 40 Cal.4th at p. 920), or one that is arbitrary, capricious, patently absurd, or even whimsical. (See, e.g., People v . Bryant , Smith and Wheeler (2014) 60 Cal.4th 335, 390 ["arbitrary, capricious, or patently absurd"]; People v . Linkenauger (1995) 32 Cal.App.4th 1603, 1614 ["arbitrary, whimsical, or capricious"].) But there are also other articulations of the standard. (See People v . Jacobs (2007) 156 Cal.App.4th 728, 736 [collecting the "[v]arious definitions and principles describing the abuse of discretion standard"].) Most recently, in Sargon Enterprises , Inc . v . University of Southern California (2012) 55 Cal.4th 747, 773, the Supreme Court endorsed this expression of the abuse of discretion standard: " 'The discretion of a trial judge is not whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.' " ( Id . at p. 773, quoting 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 364, p. 420.)

With these concepts in mind, we turn to defendant's claims.

The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Fourth and Fifth Motions to Continue the Trial

Defendant's fourth motion sought a continuance because Deborah had accepted a job offer that purportedly precluded her from testifying until April 8. Defendant did not, however, demonstrate that she was in fact unavailable for trial. Per her unsworn declaration, Deborah was scheduled to start training for a new job on January 18, but she gave no indication that she had requested a delayed start in light of her preexisting commitment to defendant's trial or that she had requested to be briefly excused from the training program in order to fulfill her obligation. Glaringly missing from defendant's motion was any documentation from Deborah's new employer

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that it would not excuse her from the training to testify at trial. She had been duly subpoenaed and was, as the trial court noted, obligated by law to appear, and her employer was, as the trial court also noted, obligated to allow her to comply with the subpoena. Defendant thus did not foreclose the possibility that if Deborah had communicated with her new employer, her attendance at trial would not have been an issue. Additionally, because Deborah had been subpoenaed, the court could have issued an arrest warrant if she failed to appear. It is entirely possible that if Olson had advised Deborah of the court's apparent willingness to issue a bench warrant, Deborah would have made a point of complying with the subpoena. Her nonappearance was thus not a foregone conclusion.

We reach the same conclusion as to defendant's fifth motion: defendant did not demonstrate that Stutchman was unavailable for trial. Trial was set to begin on January 28, with Stutchman subpoenaed for January 29. He had other work commitments, with the defense case beginning on January 29 in one matter and his deposition scheduled for January 31 in another. Stutchman believed these commitments precluded his testimony in this case because he would be unable to make the six-hour drive to Crescent City from his home in Napa and then back again. But trial in this case was slated for

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three weeks, with the prosecution's case taking up much of that, so his testimony would not have been required until well into February. Further, the court was willing to take him out of order, and the prosecutor was agreeable to a telephonic appearance, if necessary. Thus, the scheduling conflicts Stutchman believed would prevent him from testifying could easily have been accommodated. We do not question that Stutchman was being treated for serious medical issues. But those issues were not preventing him from working, as he intended to fulfill other work obligations—and indeed did fulfill other work obligations, having appeared for his January 31 deposition—that existed around the same time as defendant's trial. This was, as the prosecutor put it, "just picking and choosing which cases he's going to work on."

In light of the foregoing circumstances, defendant has not shown that there was " 'no reasonable basis' " ( Sargon Enterprises , Inc . v . University of Southern California , supra , 55 Cal.4th at p. 773) for the trial court's denial of the continuance motions. And we additionally note that at the lengthy hearing on the fifth motion, the court talked through the potential ramifications of denying the fifth motion and proceeding to trial only to have Stutchman become truly unavailable during trial due to his health issues. The court's musings on this issue, and its other deliberations during the hearing, are the antithesis of a decision that was arbitrary, capricious, or whimsical.

The bulk of defendant's argument that the trial court erred in denying his continuance requests is based on his analysis of five " Owens factor[s]," which he claims were met, "meaning that [he] established good cause to continue the January 28, 2019 jury trial." This refers to Owens v . Superior Court (1980) 28 Cal.3d 238, in which the court outlined five criteria for

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obtaining a continuance to secure the appearance of a witness: "When, as in the present case, a claim of good cause is based on the need for additional time to secure the attendance of prosecution witnesses, a particularized showing is required. Even in those situations where an accused's right to a speedy trial is not at stake, '[in] order to invoke the discretion of the trial court to grant a continuance to obtain the presence of a witness, the moving party has the burden of showing that the following legal criteria have been satisfied: (1) That the movant has exercised due diligence in an attempt to secure the attendance of the witness at the trial by legal means; (2) that the expected testimony is material; (3) that it is not merely cumulative; (4) that it can be obtained within a reasonable time; and (5) that the facts to which the witness will testify cannot otherwise be proven.' " ( Id . at p. 250; accord, 5 Witkin, Cal. Criminal Law (4th ed. 2020) Criminal Trial, § 385 [relevant factors are "a particular obtainable witness"; "materiality of the evidence"; "the necessity of the witness's testimony"; and "diligence to obtain the witness's attendance"].) Defendant's argument presupposes that Deborah and Stutchman were unavailable. As detailed above, defendant did not so demonstrate.

Beyond that, defendant has not demonstrated the testimony was material. As summarized in Witkin, "The 'ends of justice' [§ 1050, subd. (a)] would not be served by postponement of a trial to permit procurement of a witness whose testimony would be of no value or of such slight value as not to affect the outcome. Hence, it is necessary to show that the witness will give specified competent testimony that is material. This involves two distinct elements: (a) The specific testimony must be described; it is not sufficient merely to state the conclusion that the witness will give material testimony on some issue in the case. . . . [¶] (b) It must appear that the described

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testimony will have substantial probative value." (5 Witkin, Cal. Criminal Law, supra , Criminal Trial, § 387.) Defendant has not shown that the anticipated testimony of his expert witnesses had substantial probative value.

Defendant was charged with attempted premediated murder of a peace officer with multiple enhancements, including section 12022.53, subdivision (d); assault with a firearm upon a peace officer with the same enhancements; possession of a firearm by a felon; and fleeing a pursuing peace office's motor vehicle while driving. The prosecutor asserted multiple times that the testimony of the defense experts was irrelevant to all but the section 12022.53, subdivision (d) enhancement, and Olson offered no argument to the contrary. But the experts' anticipated testimony did not provide a defense to that enhancement.

In Bland , supra , 28 Cal.4th 313, the Supreme Court explained, "Section 12022.53(d) enhances the sentence of anyone who, in the commission of specified felonies including murder and attempted murder (Pen. Code, § 12022.53, subd. (a)(1), (18)), 'intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in [Penal Code] Section 12022.7, or death, to any person other than an accomplice . . . .' " ( Id . at pp. 333-334.) And it confirmed that for the enhancement to be true, defendant need only have proximately caused, not personally inflicted, the great bodily injury. ( Ibid .; see also People v . Zarazua (2008) 162 Cal.App.4th 1348, 1361-1362.) According to the Court, CALJIC No. 17.19.5 correctly defined proximate cause as used in the enhancement to mean " 'an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death

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would not have occurred.' " ( Bland , at p. 335.) In light of Bland , we fail to see how the testimony of defendant's experts would disprove the section 12022.53, subdivision (d) enhancement. Even if one accepted defendant's theory of the case—that defendant fired first but missed Deputy Aguirre, who was then accidently shot from behind by a fellow law enforcement officer—no reasonable juror could conclude that defendant's act of firing the first shot was not the proximate cause of the deputy's injury. The prosecutor asserted at two different hearings that Bland rendered defendant's theory of the case moot. Olson never attempted to explain how the expert testimony supported a defense in light of Bland .

The Attorney General makes the same point in his respondent's brief. He references the trial court's description at sentencing of the video of the shooting, which, according to the court, showed defendant "in a defensive position in concealed cover, sights on target. And it's clear to me aimed at the head." He then argues that "Stutchman's testimony that [defendant] fired the first shot, but did not hit Deputy Aguirre, would not have resulted in a verdict other than guilty of the count 1 premeditated attempted murder charge, with a finding that [defendant] used a firearm in the commission of the offense." In reply, defendant claims the Attorney General is usurping the jury function in evaluating the defense, an argument that consists in its entirety of this:

"The Attorney General argues that [defendant's] expert witnesses did not have material witnesses [ sic ] to present, citing the court's recitation of sentencing factors in support. [Citation.] But the court's view of circumstances in mitigation and aggravation is different from a jury's evaluation of evidence under the beyond a reasonable doubt standard. Besides, the court did not reach its sentencing considerations until guilt had

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already been established, further underscoring the different task facing the court at sentencing.

"What [defendant] wanted to present to the jury through the testimony of the three missing expert witnesses could have raised a reasonable doubt about the firearm enhancement, if not the charged crime. By nature prosecutors often belittle defense presentations but that does not mean a jury would do the same."

Defendant does not mention Bland , let alone attempt to distinguish it. And he offers no explanation as to how "the three missing expert witnesses could have a raised a reasonable doubt about the firearm enhancement, if not the charged crime."

In short, trial in this matter was set for April 2019. Defendant obtained three continuances, putting the start of trial off for nine months. Deputy Aguirre was traumatized by the shooting and retraumatized with each continuance. The prosecution had arranged for witnesses to be available for the January 28, 2019 trial date. Deputy Aguirre, the prosecution's witnesses, and the People deserved to have the trial go forward, rather than suffer another continuance because defendant's experts claimed they were unavailable due to other commitments. Defendant has not shown that Deborah and Stutchman were truly unavailable or, if they were, that their testimony was material. There was no abuse of discretion.

Defendant Has Not Demonstrated Prejudice

Even if we were to agree that the trial court abused its discretion in denying the fourth and fifth continuance requests, we would still affirm the judgment, as defendant has not demonstrated prejudice. (See, e.g., People v . Justice (1963) 211 Cal.App.2d 660, 665 ["in the absence of an abuse of discretion and a showing of prejudice, a denial of the continuance cannot

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serve as the basis for the reversal of a judgment of conviction"]; accord, People v . Samayoa (1997) 15 Cal.4th 795, 840 [midtrial continuance request denied; defendant must show abuse of discretion and prejudice].) That defendant must demonstrate prejudice to obtain reversal under these circumstances is consistent with the California Constitution. The Supreme Court recently observed, "As we have explained, article VI, section 13 generally 'prohibits a reviewing court from setting aside a judgment due to trial court error unless it finds the error prejudicial.' ( People v . Chun (2009) 45 Cal.4th 1172, 1201.) The section applies to both constitutional and nonconstitutional errors. ( People v . Cahill (1993) 5 Cal.4th 478, 501 ( Cahill ).) It 'empower[s]' appellate courts 'to examine "the entire cause, including the evidence," ' and 'require[s]' them 'to affirm the judgment, notwithstanding error, if error has not resulted "in a miscarriage of justice." ' " ( F . P . v . Monier , supra , 3 Cal.5th at p. 1108; see also Code Civ. Proc., § 475 [trial court "must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties"].) For the same reasons we conclude above that defendant has not demonstrated the expert testimony was material, we conclude he has not demonstrated prejudice.

The judgment of conviction is affirmed.

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/s/ _________
Richman, J.

We concur:

/s/ _________
Kline, P.J.

/s/ _________
Miller, J.