Filed 7/25/24 P. v. Berber CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

MICHAEL ANTHONY BERBER,

 Defendant and Appellant.

 G063310

 (Super. Ct. No. INF2102186)

 O P I N I O N

Appeal from a judgment of the Superior Court of Riverside 

County, Timothy J. Hollenhorst, Judge. Affirmed.

Nicholas Seymour, under appointment by the Court of Appeal, for 

Defendant and Appellant.
2

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Steve 

Oetting and Kristen A. Ramirez, Deputy Attorneys General, for Plaintiff and 

Respondent.

* * *

Michael Anthony Berber appeals from the judgment following his 

conviction for robbery. (Pen. Code, § 211, subd. (c).) He does not challenge 

the merits of the conviction; his sole contention is that the court abused its 

discretion by denying his oral request to substitute counsel and continue the 

trial, which he made on the day the case was set for trial—the last day the 

case could be tried—and after the case had been given priority assignment to 

a courtroom. We find no abuse of discretion and affirm.

Berber failed to act diligently in seeking to substitute his counsel, 

as he claimed he had retained his new lawyer at least a week before making 

his oral request to substitute counsel after the case was assigned to a 

courtroom for trial. Further, because the lawyer Berber claimed to have 

newly retained neither appeared before the court nor contacted Berber’s 

appointed counsel, the court had no firm basis to conclude the new attorney 

was prepared to actually take over Berber’s case. And finally, the fact Berber 

waited until after his appointed counsel announced ready for trial and the 

court had found a courtroom to conduct the trial, before announcing his 

desire to substitute counsel and continue the case, supports the inference 

that judicial resources would have been wasted by granting Berber’s 

eleventh-hour request.
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FACTS

In June 2021, Berber rented a room in a motel. About twenty 

minutes later, he returned to the motel office and asked for a refund, 

claiming the air conditioner in the room did not work. The manager told him 

the motel policy prohibited refunds; he then went to Berber’s room and 

confirmed the air conditioner was working. 

When the manager again refused Berber’s demand for a refund, 

Berber began to chase him and said, “We’ll see about getting that.” Berber 

punched the manager and grabbed his wallet out of his pants pocket. In 

addition to the manager’s identification, social security and medical cards, 

the wallet contained about $218. With the wallet, Berber walked back to his 

truck and drove away. 

Berber was charged with robbery. He was represented by 

appointed counsel. He did not waive his right to a speedy trial, so

January 17, 2023 was the last day the case could be brought to trial. 

In December 2022, Berber made a motion to relieve his appointed 

counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. However, at the 

conclusion of the confidential hearing, Berber agreed to take the motion off 

calendar. 

The court set the case for trial on January 11, 2023; because 

neither side was ready for trial that day, the court continued the matter to 

January 17, the last day on which trial could commence. 

On January 17, 2023, both sides appeared in the master calendar 

court and conferred with the court about their trial readiness. When the case 

was called, both sides announced they were ready for trial. The court ordered 

the “[l]ast day trial assigned [to a courtroom] forthwith.” The court indicated 

the trial would commence at 1:30 p.m. that day. 
4

After the court sent the case to a courtroom, Berber personally 

addressed the court, stating “[m]y family’s hired private counsel.” The court 

directed Berber to discuss the issue with his lawyer. After Berber conferred 

with his attorney, counsel informed the court that Berber “just told me that 

his family’s hired private counsel” and that Berber “wants to waive time to 

continue the case.” The court replied “[t]hat’s too late for that” and again 

stated “the matter’s assigned . . . .”

After a break in which the court heard other matters, the court 

re-called Berber’s case: “I brought this back because I think I moved a little 

bit too quickly with regard to what was being told to me right when I was 

sending the case out for trial. Okay. So I wanted to bring it back and make 

sure everything was clear.”

The court then stated, “I . . . talked to the attorneys informally 

early this morning and indicated to the attorneys – Mr. Berber wasn’t up at 

that time – and I had told the parties we had a number of departments that 

were available for trial; we would be prioritizing departments for the parties 

that announced ready. [¶] I was told, at least by [counsel] that Mr. Berber 

was ready to go to trial . . . .”

The court then asked Berber’s counsel if he had any indication, at

the time the case was discussed informally, that Berber would be making a 

request to hire private counsel. Counsel responded “no.”

The court then acknowledged it had “kind of moved quickly” after 

Berber made his oral request, and then invited Berber’s counsel to make “any 

request on behalf of Mr. Berber” and “make your record now.”

Counsel explained that Berber told him he had retained private 

counsel, Thomas Bundy, and counsel confirmed that he first became aware of 

that development when Berber made his request to the court that day. The 
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court then asked Berber why Bundy was not in court if he was ready to go, 

and Berber responded that Bundy was not available and had asked “for a 

continuance till the 1st or the 2nd of February.”

The court then asked when Berber retained his private counsel, 

and Berber stated it was before the initial January 11 trial date. He stated 

his appointed counsel had not been present at that hearing, and that he “had 

to file a Marsden motion just to get him to show up.”

The court then explained to Berber that “[i]f you hired private 

counsel at some particular point prior to the date of January 11th and the 

case was pending the last day for trial on January 17th, to the extent that 

that attorney was going to come in and substitute in for your case, you could 

have added it to calendar and either had been ready for trial by [the] 17th or 

made a request. [¶] I’m being told right on the heels of sending the case out 

for trial that there is going to be a request to hire private counsel after we’ve 

met and conferred and found a courtroom for your case.”

Berber responded, “I didn’t realize there was an issue with that,”

adding “I thought my case would be thrown out.”

The court then stated “I’m finding that your request to hire 

private counsel on the heels of the case being sent out for trial on its last day 

is not timely. . . . If Mr. Thomas Bundy was here, I probably might think 

about it differently, but he’s not even here. So it’s untimely.”

DISCUSSION

The Sixth Amendment guarantees a criminal defendant the right 

to retain counsel of his choice if can afford to do so. (U.S. Const., 6th Amend.; 

United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144.) Courts are required to 

“‘make all reasonable efforts’” to accommodate a defendant’s choice of private 
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counsel in criminal proceedings. (People v. Courts (1985) 37 Cal.3d 784, 790

(Courts).) 

In this case, Berber contends the court acted unreasonably in 

refusing his request to continue the trial to accommodate the fact he had 

retained new counsel. We review this assertion under the abuse of discretion 

standard. (Courts, supra, 37 Cal.3d at p. 790 [“the granting of a continuance 

is within the discretion of the trial court”]; People v. Jeffers (1987) 188 Cal.App.3d 

840, 850 [“In deciding whether the trial court’s denying 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.”’”’].)

As Berber acknowledges, the right to substitute counsel is not 

absolute. Instead, “[t]he right to such counsel ‘must be carefully weighed 

against other values of substantial importance, such as that seeking to 

ensure orderly and expeditious judicial administration, with a view toward 

an accommodation reasonable under the facts of the particular case.’” 

(Courts, supra, 37 Cal.3d at p. 790, quoting People v. Byoune (1966) 65 Cal.2d 

345, 346 (Byoune).)

In Byoune, the Supreme Court stated that “[a] defendant may 

not . . . demand a continuance if he is unjustifiably dilatory in obtaining 

counsel [citation], or if he arbitrarily chooses to substitute counsel at the time 

of trial.” (Byoune, supra, 65 Cal.2d at p. 346; accord, Courts, supra, 37 Cal.3d

at pp. 790-791.)

In People v. Brady (1969) 275 Cal.App.2d 984, cited with approval 

in Courts, supra, 37 Cal.3d at p. 792, fn.4, the appellate court affirmed the 

denial of the defendant’s request to substitute counsel because “there was no 

logical explanation given for the defendant’s waiting until the eve of trial 
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before attempting to obtain substitute counsel. A defendant in a criminal 

case who desires to retain counsel is required to act with some degree of 

promptness and diligence.” (Brady, at pp. 993-994.)

Berber contends there is insufficient evidence to support the 

conclusion he was unjustifiably dilatory in this case, or that he arbitrarily 

chose to substitute counsel at the time of trial. We disagree. 

In Courts, the Supreme Court noted that the appellant’s “motion 

represented a timely assertion of appellant’s intentions” because it “was 

made more than a week before trial.” (Courts, supra, 37 Cal.3d at p. 792.)

In this case, by contrast, although he claimed to have retained 

his new counsel at least a week before trial, Berber did not inform either his 

appointed counsel or the court of that fact;

1

nor did his new counsel contact 

retained counsel or confirm with the court his intention to take over Berber’s

representation. Instead, Berber waited until after his counsel had announced 

ready for trial on the last day the case could be brought to trial, and the court 

1 Although Berber claims he had told the attorney who appeared at 

his January 11, 2023 trial date both “that he had retained private counsel”

and “that he planned to retain counsel,” the record does not support either

contention. What it reflects is that Berber informed the master calendar 

court that he had already retained the private counsel “prior” to January 11, 

not that he “plan[ned] to” do so, and then that he “spoke to whoever [his 

appointed counsel] sent to represent me on that date.” But Berber did not 

specify what he said to that attorney. Instead, Berber’s reference to speaking 

to the attorney who represented him appeared to be related to his complaint 

about his retained counsel’s failure to appear. 

Moreover, the inference Berber asks us to draw about what he 

might have said to the attorney who represented him at the January 11 

hearing is undermined by his subsequent response when the court noted he 

could have brought his request to substitute counsel to the court’s attention 

during the week before the January 17 trial date: i.e., that he did not think it 

was important because he was confident the case would be “thrown out.”
8

had given the case a priority assignment to one of its limited number of 

courtrooms. That does not demonstrate diligence.

In arguing he was timely in obtaining new counsel, Berber points 

to the fact he filed a Marsden motion in December 2022, a month before trial, 

and thus had made the court aware he was unhappy with his appointed 

counsel. But as Berber concedes, he subsequently agreed to withdraw that

motion and to try to work with his appointed counsel.

The problem here is not that Berber waited too long to retain 

counsel; it is that he waited too long after retaining counsel to inform the 

court of his intent to substitute. Thus, the Marsden motion, which was made 

and withdrawn weeks before Berber retained his new counsel, became

irrelevant in assessing whether the court abused its discretion in concluding 

Berber failed to act diligently. 

Berber also contends he was not dilatory because he made his 

motion to substitute counsel at the first moment he could, as the decision to 

send the case out to a courtroom for trial had been made at the “case 

conference” held between counsel and the court in his absence. But the 

decision to send the case out for trial did not result from the case conference

on January 17. That decision had effectively been made on January 11, when 

the case was trailed to January 17—the last date on which trial could 

commence. 

Berber had a clear opportunity to broach the subject on 

January 11—which was after the date he claims he had retained new 

counsel. But Berber said nothing to the court about wanting to substitute 

new counsel at that time. He could have informed his appointed counsel, or 

asked his new counsel to notify the court or appointed counsel, during the 

week between the two hearings. He did not.
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Instead, by his own admission, Berber decided to do nothing

because he believed the case would be “thrown out.” It was only after the 

case was assigned to a courtroom for trial that Berber decided to say 

something. That hardly suggests diligence. 

Berber argues the court erred when it concluded that granting a

continuance to allow him to retain new counsel “would disrupt ‘the orderly 

processes of justice.”’ According to Berber, the court’s concern was 

improperly focused on “the administration of justice on a system-wide basis, 

rather than any case-specific concerns.” We disagree. While the court did 

identify a systemic concern related to the shortage of courtrooms, it also 

indicated it was concerned that allowing Berber to continue his trial after the 

court had already given his case priority would impair the court’s ability to 

otherwise employ the already-assigned courtroom that day. Such a concern 

by a busy master calendar judge is legitimate.

Berber argues it was not his fault that his appointed counsel 

informed the court they were ready for trial in his absence. Again, we 

disagree. Had Berber acted diligently to inform his appointed counsel that he 

had retained a new lawyer, his appointed counsel could have informed the 

court that Berber was not ready for trial, and that he desired a continuance. 

It was Berber’s failure to do so which impaired the court’s ability to ensure

that all available courtrooms were properly utilized. 

Absent an appearance by the new attorney, or some other 

communication from him, the court could not determine whether that lawyer 

had actually been retained. Moreover, absent an appearance or other 

evidence of the attorney’s agreement to take the case, the court could not 

order that attorney to appear on any future date. As the court observed, its 
10

ruling might have been different had the attorney been present in court. We

find no fault with the court’s reasoning.

Finally, in his reply brief, Berber disputes the Attorney General’s 

contention that the court considered the circumstances of the case and 

Berber’s arguments before ruling. This is an assertion Berber appeared to 

make in an argument heading in his opening brief, but he failed to develop

that argument or provide citations to support it. It is consequently waived. 

(Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a 

life of their own: if they are not raised or supported by argument or citation 

to authority, [they are] . . . waived”]; People v. Duff (2014) 58 Cal.4th 527, 

550, fn. 9 [argument made for first time in reply brief is waived].)

But even if it were not waived, the claim is not persuasive. In 

Berber’s view, the court denied his request peremptorily, and then recalled 

the matter “only to further develop the factual record in case of an appeal, not 

to reconsider or reopen the matter.” We are not persuaded. 

When the court recalled the matter, it acknowledged “I brought 

this back because I think I moved a little bit too quickly with regard to what 

was being told to me right when I was sending the case out for trial.” The 

court then invited Berber’s counsel to make “any request on behalf of 

Mr. Berber.” The court asked Berber for additional information about his 

hiring of new counsel; the court then sought a response from the prosecutor

and additional factual information from Berber’s appointed counsel. Only 

after hearing all of that did the court rule: “I am finding that your request to 

hire private counsel . . . is not timely.”

We find no abuse of discretion in the court’s denial of Berber’s 

request for a continuance. 
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DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.