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Filed 1/12/15 P. v. Antolin CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE LIN ANTOLIN,

Defendant and Appellant.

 A138465

 (San Mateo County

 Super. Ct. No. SC073522A)

Following a jury trial, defendant was convicted of possession of 

methamphetamine for sale. Defendant contends the trial court abused its discretion in 

denying a continuance to allow him to retain private counsel and refusing to approve a 

plea bargain. We affirm. 

PROCEDURAL BACKGROUND

In May 2011, the San Mateo County District Attorney filed an information 

charging defendant with possession of methamphetamine for sale (Health & Saf. Code, § 

11378) with five prior convictions for the same offense (Pen. Code, § 1203.07, subd. 

(a)(11);1 Health & Saf. Code, § 11370.2, subd. (c)). The information also alleged five 

prior prison-term commitments (§ 667.5, subd. (b)).

A jury found defendant guilty as charged, and the trial court made findings 

regarding the alleged priors. The court sentenced defendant to jail for 11 years. This 

appeal followed.

 

1 All further undesignated statutory references are to the Penal Code.
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FACTUAL BACKGROUND

In January 2011, police performed a probation search of a motel room rented by 

defendant and occupied by defendant and his girlfriend. The room contained a “large 

number” of sealed nitrous oxide canisters, a freezer bag containing 27.31 grams of 

methamphetamine, another bag containing 1.63 grams of methamphetamine,

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a large 

quantity of money, and a bag containing numerous DMV title papers for vehicles and 

over a hundred keys. The jury was informed by stipulation that defendant had previously 

been convicted three times of possession of methamphetamine for sale.

A witness for the defense testified that he worked with defendant recycling cars

purchased at auction and that it is a cash business. Defendant’s girlfriend testified she 

and defendant consumed methamphetamine in the motel room and she was not aware of 

any drug sales by defendant.

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion In Denying a Continuance

Defendant contends the trial court abused its discretion in denying his request for a 

continuance of trial so he could retain counsel. We reject the claim.

A. Background

In May 2012, defendant was declared incompetent to stand trial and committed to 

Napa State Hospital. On August 1, he was found competent to stand trial. Trial was set 

for October 22. On October 22, defendant requested a continuance to enable him to 

retain private counsel. He asserted, “I had just got an okay with family and friends that 

they were going to support me in this endeavor. And I spoke with two, Mr. Kass and also 

Eric Saffire, and one of the two will be hired if the Court’s permitting.” He also asserted, 

“I’m not requesting time to get a new attorney. I am requesting that I get a new attorney 

and that I can pay him tomorrow. I don’t need time to hire the attorney. I just need the 

okay to hire the attorney.” The prosecution objected and stated, “we are ready to 

 

2

The smaller bag of methamphetamine was discovered later by the hotel staff. 
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proceed.” The criminal presiding judge denied defendant’s motion, stating “It is 

untimely. The District Attorney subpoenaed witnesses and are ready to proceed.”

Later on October 22, 2012, defendant’s case was assigned for trial. On October 

23, defendant failed to appear and a bench warrant was issued. On October 24, defendant 

appeared and trial was continued to October 29. On October 29, the case was trailed to 

October 31. On October 31, a defense motion to continue was granted and trial was 

continued to November 5. On November 5, trial was confirmed and set for November 6, 

and trial commenced that day.

B. Analysis

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

counsel of one’s own choosing. [Citations.]’ [Citation.] Underlying this right is the 

premise that ‘chosen representation is the preferred representation. Defendant’s 

confidence in his lawyer is vital to his defense. His right to decide for himself who best 

can conduct the case must be respected wherever feasible.’ ” (People v. Courts (1985) 37 

Cal.3d 784, 789 (Courts).) “In view of the importance of these rights and the severe 

consequences which flow from their violation, the trial courts are required to ‘make all 

reasonable efforts to ensure that a defendant financially able to retain an attorney of his 

own choosing can be represented by that attorney.’ [Citation.] To this end, ‘the state 

should keep to a necessary minimum its interference with the individual’s desire to 

defend himself in whatever manner he deems best, using any legitimate means within his 

resources.’ ” (Id. at p. 790.)

“Generally, the granting of a continuance is within the discretion of the trial court. 

[Citations.] A continuance may be denied if the accused is ‘unjustifiably dilatory’ in 

obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ 

[Citation.]” (Courts, supra, 37 Cal.3d at pp. 790–791.) “However, ‘a myopic insistence 

upon expeditiousness in the face of a justifiable request for delay can render the right to 

defend with counsel an empty formality.’ [Citation.] For this reason, trial courts should 

accommodate such requests–when they are linked to an assertion of the right to retained 

counsel–‘to the fullest extent consistent with effective judicial administration.’ ” (Id. at 
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p. 791.) “In deciding whether the denial of a continuance was so arbitrary as to violate 

due process, the reviewing court looks to the circumstances of each case, ‘ “particularly 

in the reasons presented to the trial judge at the time the request [was] denied.” ’ ” (Ibid.)

In Courts, the California Supreme Court held the trial court’s failure to grant the 

requested continuance constituted error where the defendant made diligent efforts “(1) to 

secure counsel of his own choosing before the date of trial, and (2) to apprise the court of 

his wishes at the earliest possible time.” (Courts, supra, 37 Cal.3d at pp. 795–796.) 

Significant in Courts were the following facts: After two months of effort, the defendant 

had completed his financial arrangements and retained private counsel five days before 

trial was to start; the defendant unsuccessfully moved for a continuance eight days before 

trial; and the defendant attempted to calendar a renewed motion four days before trial, but 

the renewed motion was not actually heard until the trial date, when the motion was again 

denied. (Id. at pp. 787–789.) The Supreme Court emphasized, “a lawyer-client 

relationship had been established” five days before trial if not earlier; thus, “the court was 

not confronted with the ‘uncertainties and contingencies’ of an accused who simply 

wanted a continuance to obtain private counsel.” (Id. at p. 791.)

Courts also emphasized the absence of “circumstances which warranted the 

limitation of appellant’s right to counsel based on considerations of judicial efficiency.” 

(Courts, supra, 37 Cal.3d at p. 794.) The court explained, “The record fails to show that 

a continuance would have significantly inconvenienced the court or the parties. 

[Citation.] There was no evidence that the Shasta County Superior Courts were 

particularly congested during this period. If anything, the availability of two judges to try 

the case . . . suggests the contrary. No mention of inconvenience to jurors . . . was ever 

made. . . . [¶]In addition, the prosecutor failed to express any valid concern about an 

inconvenience to witnesses which might have resulted if a continuance had been 

granted.” (Id. at pp. 794–795.)

In the present case, the trial court’s decision is supported by the absence of a 

showing of diligence comparable to that in Courts. First, although defendant had been 

declared competent two months earlier, he only sought a continuance on the day 
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scheduled for trial. (Courts, supra, 37 Cal.3d at p. 792, fn. 4 [the defendant’s 

“continuance request should be contrasted with the eve-of-trial, day-of-trial, and secondday-of-trial requests”].) Courts noted that courts considering last minute requests for 

continuances had “found the lateness of the continuance request to be a significant factor 

which justified a denial where there were no compelling circumstances to the contrary.” 

(Ibid.; see also People v. Jeffers (1987) 188 Cal.App.3d 840, 850 [the defendant “did not 

present the trial court with compelling circumstances supporting his late request for 

continuance” made on the day of trial].) Second, although defendant identified two 

potential counsel and asserted one could be retained the next day, counsel was not present 

and had not actually been retained, so it was uncertain how quickly the case could 

proceed with new counsel. (Courts, at p. 791, fn. 3 [“These facts are to be sharply 

contrasted with cases which have upheld the denial of a continuance on the ground that 

participation by a particular private attorney was still quite speculative at the time the 

motion for continuance was made.”].) Third, defendant failed to present a declaration 

demonstrating his diligence and attesting to the facts supporting his request for a 

continuance. (Id. at p. 788 [the defendant filed a “declaration summarizing the steps 

taken to secure retained counsel”]; see § 1050, subd. (b) [“To continue any hearing in a 

criminal proceeding, including the trial, (1) a written notice shall be filed and served on 

all parties to the proceeding at least two court days before the hearing sought to be 

continued, together with affidavits or declarations detailing specific facts showing that a 

continuance is necessary”].)

We recognize that the trial court failed to identify particular circumstances 

showing a continuance would have “significantly inconvenienced the court or the 

parties.” (Courts, supra, 37 Cal.3d at p. 794.) Neither the court nor the prosecutor 

referred to court congestion, substantial inconvenience to witnesses or jurors, or any other

particular circumstances supporting denial of the continuance. The court simply 

referenced the prosecution’s readiness and witness subpoenas. Nevertheless, because “ ‘a 

trial court should be presumed to have acted to achieve legitimate objectives’ ” (Ajaxo 

Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 45), we presume the trial court’s 
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denial of a continuance was motivated by “considerations of judicial efficiency.” 

(Courts, at p. 794.) The Legislature provided in adopting section 1050, subdivision (a),

“The 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. 

To this end, the Legislature finds that the criminal courts are becoming increasingly 

congested with resulting adverse 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. . . .” We presume considerations of 

these sorts were the basis for denial of defendant’s untimely request for a continuance.3

In light of the extreme untimeliness of defendant’s request for a continuance, 

defendant’s failure to make any showing of diligence, and the lack of a showing that 

counsel was actually available, we cannot say that denial of a continuance was “so 

arbitrary as to violate due process.” (Courts, supra, 37 Cal.3d at p. 791.) The trial court 

did not abuse its discretion. 

II. The Trial Court Did Not Abuse Its Discretion In Refusing to Approve The Plea

Bargain

Defendant contends the trial court abused its discretion in refusing to approve his 

plea pursuant to a plea bargain. We reject the claim.

A. Background

On August 21, 2012, the prosecutor offered to defendant that he could plead guilty 

to the charged offense and admit certain special allegations for an “indicated sentence of 

nine years, three of which would be serving [defendant’s] 1170(h) sentence, six on 

supervised community release.” The prosecutor said the offer would expire on 

September 14.

 

3 Defendant points out that the trial court subsequently granted other continuances that 

delayed trial for two weeks. However, those continuances—due to defendant’s failure to 

appear and a defense motion for a continuance—do not show that no concerns of judicial 

efficiency justified the October 22 denial of a continuance.
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On November 6, 2012, defendant sought to plead pursuant to the prosecutor’s 

August 21 offer. Defense counsel explained that defendant had only just understood that, 

under the prosecutor’s offer, he would be serving his time in jail rather than prison. The 

prosecutor appeared willing to continue to extend her last offer to defendant; she 

indicated that a recent United States Supreme Court opinion could be read to suggest that 

defendant had a right to accept a plea bargain if it had been miscommunicated to him.

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The trial court rejected defendant’s assertion that he misunderstood the offer, 

pointing out that defense counsel is “an extremely thorough, thoughtful attorney” who 

must have explained the offer to defendant. In fact, defense counsel confirmed he told 

defendant the sentence would be served in jail, but defendant nonetheless misunderstood. 

The trial court stated that defendant could plead to the charges without the benefit of a 

plea bargain, but it was too late to plead pursuant to the expired plea offer. The record 

reflects that prospective jurors were waiting while the discussion about a plea occurred.

B. Analysis

On appeal, the People argue the trial court properly rejected defendant’s factual 

claim that he did not understand the terms of the prosecution’s plea offer. While not 

accepting the trial court’s credibility determination, defendant does not argue we should 

reject it. Instead, defendant contends it was an abuse of discretion for the trial court to 

refuse to approve the plea bargain on the ground it was untimely. We disagree.

“Judicial approval is an essential condition precedent to any plea bargain worked 

out by the defense and the prosecution.” (People v. Cardoza (1984) 161 Cal.App.3d 40, 

45; see also § 1192.5.) “Although it is within the discretion of the court to approve or 

reject the proffered offer, the court may not arbitrarily refuse to consider the offer.” 

(People v. Smith (1971) 22 Cal.App.3d 25, 30; accord People v. Cobb (1983) 139 

Cal.App.3d 578, 584 (Cobb).)

 

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The case citation is not in the transcript, and the parties have not cited any such decision 

on appeal. It appears the reference may be to Missouri v. Frye (2012) 132 S.Ct. 1399,

1410, decided in March 2012, in which defense counsel was found ineffective for failing 

to communicate the prosecutor’s written plea offer to the defendant.
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The Cobb decision is instructive. Cobb considered whether a trial court could 

reject as untimely a negotiated disposition presented for approval after a readiness 

conference. In Cobb, a local court rule provided that any plea after the readiness 

conference would have to be “ ‘straight up to the charges as alleged without any 

conditions.’ ” (Cobb, supra, 139 Cal.App.3d at p. 581.) Nevertheless, after the readiness 

conference the defendant and prosecutor entered into a plea bargain and attempted to 

obtain court approval of the negotiated disposition. The presiding judge rejected the plea 

bargain as untimely. (Id. at p. 582.) On appeal, the defendant asserted the trial court was 

obligated to consider the plea bargain on the merits, but Cobb concluded the trial court 

did not abuse its discretion in enforcing the local rule. (Id. at p. 586.) Cobb explained 

that the deadline for pleas was “a means of reducing the confusion, hardship and 

inconvenience inherent in calling calendars. . . . When pleas are taken [on the first day of 

trial], the practice may well have a domino effect on other cases. It may leave 

courtrooms vacant if the calendar judge has failed to overschedule trials. Excusing 

unused jurors or, when expected pleas do not materialize, announcing there are 

insufficient judges or courtrooms for the balance of the calendar, is an unpleasant judicial 

task.” (Id. at p. 581.) 

The same reasoning applies in the present case. Although there appears to be no 

local rule requiring pleas on plea bargains by a certain point in the process, defendant had 

been informed the plea offer was only available until September 14, 2012, and had no 

reasonable expectation of being able to plead to the offer after that date. In any event, 

defendant and his counsel were necessarily aware that attempting to plead on the day of 

trial would interfere with orderly trial scheduling. Among other things, rule 4.112 of the 

California Rules of Court informed defendant that his counsel was required to appear at 

the readiness conference “prepared to discuss the case and determine whether the case 

can be disposed of without trial.” The trial court did not abuse its discretion in refusing 

to accept the untimely plea bargain.

DISPOSITION

The trial court’s judgment is affirmed.
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SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.