People v. Lyon CA1/5

Filed 3/26/14 P. v. Lyon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A137363

v. (San Mateo County Super. Ct. No. SC075135A) AUDLEY BARRINGTON LYON, JR.,

Defendant and Appellant. _____________________________________/

The trial court denied appellant Audley Barrington Lyon, Jr.’s, request to discharge retained counsel and the jury convicted him of possession of cocaine base for sale (Health & Saf. Code, § 11351.5).1 On appeal, appellant contends the court erred by denying his request. He claims the court “failed to properly consider all factors relevant to [his] request to discharge retained counsel” and that his request was “reasonable under the facts of this case.” We affirm. FACTUAL AND PROCEDURAL BACKGROUND Law enforcement officers executed a search warrant at appellant’s residence in late October 2011 and found 19.31 grams of cocaine base, “two digital scales, cell

1 Unless otherwise noted, all further statutory references are to the Health and Safety Code. 1

phones, and $170.00 in multiple denominations.” In November 2011, the People charged appellant with possession of cocaine base for sale (§ 11351.5) and alleged various sentencing enhancements (Pen. Code, § 1203, subd. (e)(4), § 11370, subd. (a)). Retained counsel represented appellant at the preliminary hearing in February 2012, where the court held him to answer the charge. Appellant was arraigned in mid February 2012 and the court set a May 2012 trial date. In early May 2012, retained counsel moved to suppress but later withdrew the motion, citing “problems with our witness.” The court continued trial from May to August 2012 and then again to October 15, 2012. In early October, the court denied retained counsel’s motion to disclose the identity of a confidential informant. On October 15, 2012, the case was assigned to a courtroom for trial. The next day, the prosecutor filed in limine motions and a proposed witness list. The court informed the parties trial could not begin until the next day because the court was “still in evidence” on another trial but denied retained counsel’s request to continue trial “until November[.]” On October 17, 2012, the parties discussed the prosecution’s plea offer. When the court asked appellant whether he understood the offer, appellant stated he did not accept the plea agreement and said, “I would like to request a new attorney because I’m unable to afford this one at this time and he’s here for this portion of the proceedings, your Honor.” The court explained, “[t]here’s no plea agreement unless you actually enter a plea” and the following exchange occurred: “THE DEFENDANT: But on my request for a new attorney— “THE COURT: Well, you—as I understand, you hired your attorney so . . . that is your attorney. “THE DEFENDANT: I’m unable to afford him for this portion of the proceedings, your Honor. “THE COURT: Well, he is your attorney and that’s where we are. So—and he isn’t making a motion to withdraw. ...