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Filed 3/13/15 P. v. Lee CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

QUENTIN MICHAEL RAY LEE,

Defendant and Appellant.

C075392

(Super. Ct. No. CRF132253)

On the last day before trial, defendant Quentin Michael Ray Lee moved for a 

continuance to obtain witnesses and to retain new counsel. The trial court denied the 

motion. Defendant thereafter pled no contest to the charges against him and was 

sentenced to serve 11 years in state prison. Having obtained a certificate of probable 

cause, defendant appeals, contending the court’s refusal of a continuance denied him his 

constitutional rights to due process and counsel of his choice. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A complaint filed on June 6, 2013, accused defendant of evading a peace officer 

with reckless driving (count 1; Veh. Code, § 2800.2, subd. (a)), theft or unauthorized use 
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of a vehicle (count 2; Veh. Code, § 10851, subd. (a)), and resisting or obstructing a peace 

officer (count 3; Pen. Code, § 148, subd. (a)(1)).1 As to count 2, the complaint alleged a 

prior felony conviction for violating Vehicle Code section 10851, subdivision (a). As to 

all counts, the complaint alleged a prior strike conviction (§ 667, subds. (c), (e)(1)) and 

five prior prison terms (§ 667.5, subd. (b)). 

On July 18, 2013, the trial court held a preliminary hearing, at which Deputy 

Public Defender David Muller represented defendant.2 Woodland Police Officer Tamara 

Pelle testified that while on patrol in uniform, driving a marked police car, around 

11:00 a.m. on June 4, 2013, she saw defendant, whom she knew to have a current 

probation warrant, driving a silver Lexus that had been reported stolen. After a backup 

officer arrived, Officer Pelle attempted a traffic stop of defendant, activating her 

overhead lights and sirens; her backup officer also activated his lights and sirens. Instead 

of stopping, defendant sped up, reaching speeds as high as 90 miles per hour. After they 

reached the town of Knights Landing, at least a dozen more officers showed up. 

Defendant continued to drive at 80 miles per hour in a school zone posted 25 miles per 

hour. Defendant had to drive into oncoming traffic to avoid a disabled person with a 

walker in an intersection. The pursuit continued onto a drawbridge, with all the vehicles 

driving around 75 miles per hour. Heading into oncoming traffic, defendant abruptly 

stopped on the bridge with a large semi-truck blocking him and the officers’ vehicles 

right behind him. Defendant opened the driver’s door and got out, then jumped over a 

barricade and into the water. Officer Pelle and her partner followed him down onto the 

levee and took him into custody. Defendant claimed he had just gotten the Lexus a few 

 

1 Undesignated section references are to the Penal Code.

2 The parties later stipulated the preliminary hearing provided the factual basis for 

defendant’s no contest plea. 
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hours before. When the police contacted its owner, he said he did not know defendant 

and had not given him permission to drive the car. 

The trial court held defendant to answer on all counts. The complaint was 

replaced by an information on July 31, 2013. The 60th day for trial was October 1, 2013. 

In late August and early September 2013, defendant’s appointed counsel filed 

numerous pretrial motions. 

On Friday, September 27, 2013, the date of the trial readiness conference,

defendant’s appointed counsel filed a motion for a continuance. In support, he declared: 

“(1) [Defendant] has indicated that it is his wish to retain counsel. [Defendant] has 

already been in contact with [attorney] Don Bisnette. [¶] (2) [Defendant] further has 

provided counsel the names of witnesses that need to be contacted [and] interviewed 

prior to trial.” The declaration noted no prior continuances had been requested and 

defendant was “willing to waive time in this matter.” 

At the trial readiness conference, defendant’s appointed counsel said the defense 

was not ready to proceed to trial. Defendant claimed he had been in contact with attorney 

“Besneatte” and had named “approximately about four witnesses” who would need to be 

contacted and interviewed before trial. Counsel requested that the parties return for trial 

setting in four weeks. 

The prosecutor noted the People had asserted their speedy trial rights and were 

prepared to go to trial on Monday. The prosecutor called defendant’s claim of new 

witnesses a “stall tactic” and asserted no witnesses could help defendant with the charges 

against him, since he was “caught on car cam” in possession of a stolen vehicle. 

Moreover, defendant had had ample time to retain private counsel, and the trial court had 

discretion to deny the request for retained counsel “at this late stage of the game.” 

Defendant’s appointed counsel replied that the proposed witnesses could testify as 

to how defendant acquired the stolen car, which would go to knowledge and intent on 

count 2. 
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The trial court stated: “It doesn’t appear to me that [defendant] is engaged in 

dilatory tactics.” On the other hand, the issue was coming up “at the eleventh hour” and 

it was not clear why defendant could not have revealed the witnesses’ existence or sought 

to retain private counsel sooner than the day before trial. As to the witnesses, counsel

said defendant had just given him the information the night before. As to retaining 

private counsel, counsel said nothing. 

The court denied the motion for continuance because defendant had not shown due 

diligence to obtain witnesses and a request to retain counsel on the day before trial was 

untimely.

On September 30, 2013, the first day of trial, the trial court found the public 

defender’s office had a conflict of interest because it represented one of the newly 

discovered defense witnesses. When defendant’s appointed counsel said the witness had 

evidence only as to count 2, the prosecutor moved to dismiss that count, and the trial 

court granted the motion with prejudice. Count 3 (misdemeanor resisting an officer) was 

renumbered count 2. 

Asked if he was ready to proceed on count 1, defendant’s appointed counsel

renewed his motion for a continuance for defendant to retain attorney “Bisne” in a week 

or two. The trial court again denied the motion as untimely. 

Following a recess, defendant’s appointed counsel stated, and defendant 

confirmed, defendant wanted to “plead to the sheet.” Defendant pled no contest to counts 

1 and 2 and admitted all remaining enhancements. Finding defendant had knowingly, 

intelligently, and voluntarily waived his rights, the trial court accepted his plea. 

On November 22, 2013, the trial court sentenced defendant to serve an aggregate 

state prison term of 11 years (the upper term of three years on count 1, doubled for the 

prior strike, plus five years for the prior prison terms). The court awarded defendant 344 

days of presentence custody credits and imposed various fines and fees. 
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Defendant filed a notice of appeal and requested a certificate of probable cause, 

stating the denial of his motion for a continuance to retain counsel as one of the grounds. 

The trial court granted the certificate. 

DISCUSSION

Defendant contends the trial court’s denial of his first motion for a continuance 

violated his constitutional rights to due process and counsel of his choice. (He does not 

claim error as to his renewed motion on the day of trial, thus impliedly conceding the 

motion was untimely at that point.) We are not persuaded.

“A continuance in a criminal trial may only be granted for good cause. (§ 1050, 

subd. (e).) ‘The trial court’s denial of a motion for continuance is reviewed for abuse of 

discretion.’ [Citation.] ‘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.’ [Citations.]” (People v. Mungia (2008) 

44 Cal.4th 1101, 1118.) Even if abuse of discretion is shown, the defendant must also 

show prejudice to justify reversal. (Id. at p. 1119.)

Defendant sought a continuance for two reasons: (1) to obtain witnesses and (2) to 

retain private counsel. But he made no showing of good cause for a continuance for

either reason.

As to the witnesses, defendant did not show why he had not obtained and could 

not have obtained them as of the last day before trial. He also did not make any specific 

offer of proof as to what material evidence they could give. (Counsel’s vague assertion 

they would testify about how defendant acquired the stolen car, without more, did not 

support counsel’s claim this testimony would be relevant to knowledge and intent on 

count 2.) Because defendant failed to show either he had diligently sought to obtain the 

witnesses in a timely fashion or their testimony would be material, his desire to delay the 

start of trial by up to a month to attempt to obtain those witnesses did not constitute good 
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cause for a continuance. (People v. Henderson (2004) 115 Cal.App.4th 922, 934 [due 

diligence in securing witnesses’ presence and a showing their testimony would be 

material are required to justify continuance based on their absence].)

As to retaining private counsel, defendant failed to show the request was made in a 

timely fashion or to give any reason why the balance should tip in favor of granting an 

untimely request. 

The right to the effective assistance of counsel encompasses the right to retain 

counsel of one’s choice. (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) 

However, a continuance to retain counsel “may be denied if the accused is 

‘ “unjustifiably dilatory” ’ in obtaining counsel, or ‘ “if he [or she] arbitrarily chooses to 

substitute counsel at the time of trial.” ’ [Citation.]” (Id. at pp. 790-791.) A continuance 

may also properly be denied if “participation by a particular private attorney was still 

quite speculative at the time the motion for continuance was made. [Citations.]” (Id. at 

p. 791, fn. 3.) Where no compelling circumstances existed to justify delaying a request 

for a continuance to retain counsel until the eve or day of trial, “the lateness of the 

continuance request [was] a significant factor which justified a denial.” (Id. at p. 792, 

fn. 4.)

Defendant’s request for a continuance was made on the eve of trial (and knowing 

the People had not waived their speedy trial right). Defendant did not assert he had 

secured the agreement of private counsel to represent him, but only that he had “been in 

contact with” said counsel. Defendant did not give any definite time frame within which 

he thought he could obtain said counsel’s representation. Defendant also did not estimate 

how long it would take said counsel, assuming he undertook to represent defendant, to 

become ready for trial. Defendant had not shown any prior dissatisfaction with the 

deputy public defender’s representation or explained why he thought retained counsel 

could do a better job. Thus, the factors set out in Courts, supra, 37 Cal.3d 784 show the 

trial court did not abuse its discretion by denying a continuance to retain counsel. Unlike 
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in Courts, here “ ‘[t]here was [both] lack of diligence in seeking a replacement [for 

appointed counsel] [and] undue delay in apprising the court of the situation and seeking a 

continuance.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 794.) 

We conclude the trial court did not abuse its discretion in denying defendant’s 

request for a continuance on the eve of trial and reject defendant’s claim the court’s 

ruling deprived him of due process and the right to counsel of his choice.

DISPOSITION

The judgment is affirmed.

 HOCH , J.

We concur:

 HULL , Acting P. J.

 MURRAY , J.