P. v. Vielma

Filed 4/3/07 P. v. Vielma CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR DANIEL VIELMA,
Defendant and Appellant.
F050858
(Super. Ct. No. VCF161203)
O P I N I O N
THE COURT∗
APPEAL from a judgment of the Superior Court of Tulare County. Ronn M.
Couillard, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans and
Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
∗Before Vartabedian, Acting, P.J., Levy, J., and Gomes, J.

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-ooOoo-
A jury convicted appellant Oscar Vielma of second degree burglary (Pen. Code,
§§ 459; 460, subd. (b)). In a separate proceeding, the court found true enhancement
allegations that appellant had served three separate prison terms for prior felony
convictions (Pen. Code, § 667.5, subd. (b)). The court imposed a prison term of five
years, consisting of the three-year upper term on the substantive offense and one year on
each of the three prior prison term enhancements.
On appeal, appellant contends (1) the court erred in denying appellant’s motion for
a continuance, and (2) he was denied his rights to trial by jury and due process of law
under the United States Constitution because the court imposed the upper term based on
circumstances in aggravation that were not found by a jury beyond a reasonable doubt.
We will affirm.
FACTS
At approximately 3:00 p.m. on March 15, 2006,1 Richard Bailey looked out one of
the windows in the building where he was working and saw appellant, who was in a
parking lot approximately 100 feet from Bailey, approach Bailey’s parked car and break a
window on the passenger side with his hand.2 Bailey, after telling a co-worker to call
911, ran outside.
When he got within approximately 10 feet of appellant, Bailey called to appellant.
Appellant turned and ran, and Bailey gave chase. Police officers arrived on the scene
shortly thereafter and apprehended appellant in an alley nearby.
1 Further references to dates of events are to dates in 2006.
2 Except as otherwise indicated, the factual statement is taken from Bailey’s
testimony.

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Bailey had been in his car a few hours previously, at which time nothing was
missing from the car. After the break-in of his car, the car stereo was missing; it had
been “ripped out.”
City of Porterville Police Officer John Olmos testified to the following. He spoke
to appellant on March 15 at the police station booking area, at which time, after advising
appellant of his constitutional rights, including the right to remain silent, appellant told
him the following. Appellant was standing near appellant’s car, acting as a look-out for a
40-year-old Hispanic male whose first name was Guadalupe or Lupe. “Guadalupe was
the actual person who had entered the car and taken the stereo,” and after doing so he fled
on a bicycle before Bailey “contact[ed]” appellant.
After appellant was apprehended, Officer Olmos and Bailey retraced the steps
Bailey had taken in chasing appellant, but they did not find the stereo.
Appellant called no witnesses and presented no evidence.
DISCUSSION
Denial of Motion for Continuance
As indicated above, appellant contends the court abused its discretion in denying
appellant’s motion for a continuance of trial.
Background
The information in the instant case was filed April 4 and the one-day trial took
place a little more than a month later, on May 8.
On May 4, appellant filed a notice of motion for continuance, and supporting
papers, including a declaration, executed May 4, in which appellant’s trial counsel
averred as follows: on April 28, appellant informed counsel that “he may have potential
witnesses but he did not have any contact information”; appellant, who was in custody,
“would need to make telephone calls from the jail in order to provide [counsel with such]
information”; appellant “has been on ‘lock down’ status since May 2” and was
“[t]herefore[] . . . unable to make any telephone calls from the facility”; and “[t]hese

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witnesses may be exculpatory and the only way to obtain such information is from the
defendant, who is currently unable to assist in his defense due to the ‘lock down’ status of
Unit 41 at Bob Wiley Detention Facility.”
At the hearing on the motion on the morning of May 8, prior to any testimony,
defense counsel told the court: “Because the trial was somewhat short-set compared to
other trials and because we did not have any concrete information, we have not been able
to conduct any investigation. So we request more time to allow our investigators to
contact potential witnesses or people who work at the businesses in the area to see if they
can provide any helpful information to the defense.”
In denying the motion, the court, after noting the incident giving rise to the charge
of the instant offense occurred March 8 and a preliminary hearing was held March 29,
stated: “It seems like there’s nothing concrete here. This sounds like more of a fishing
expedition to me. Certainly . . . if the defendant had any witnesses or potential witnesses
that needed to be contacted, this could easily have been done.”
At trial on May 8, the People rested after presenting the testimony of two
witnesses, at which point the following exchange occurred outside the presence of the
jury:
“[Defense counsel]: . . . My client informed me this morning that he did receive
witness names and contact information. A cellmate was able to make a phone call for
Mr. Vielma. However, the deputy . . . took this information from him and threw it away.
I would be renewing my motion to continue.
“THE COURT: I’m going to deny it again. One other thing that did come up is
that -- still, the reason I’m denying it is because this is not real substantive information.
It’s something that he pulled out of thin air. I’ll make a finding that it’s not persuasive
enough to continue the trial.”
Analysis

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Continuances in a criminal case may be granted only upon a showing of good
cause. (Pen. Code, § 1050, subd. (e); People v. Frye (1998) 18 Cal.4th 894, 1012-1013.)
In a criminal case, “ ‘counsel . . . [must be] given a reasonable time in which to prepare
the defense.’ [Citation.] Failure to respect these rights constitutes a denial of due
process.” (People v. Courts (1985) 37 Cal.3rd 784, 790.)
“The determination of whether a continuance should be granted rests within the
sound discretion of the trial court, although that discretion may not be exercised so as to
deprive the defendant or his attorney of a reasonable opportunity to prepare. [Citations.]”
(People v. Sakarias (2000) 22 Cal.4th 596, 646.) “Not every restriction on counsel’s time
or opportunity to investigate . . . or otherwise to prepare for trial violates a defendant’s
Sixth Amendment right to counsel. [Citation.]” (Morris v. Slappy (1983) 461 U.S. 1,
11.) Similarly, “it is not every denial of a request for more time that violates due process
even if the party fails to offer evidence or is compelled to defend without counsel.
[Citation.] Contrariwise, 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.]” (Ungar v. Sarafite (1964) 376 U.S. 575, 589 [84 S.Ct. 841, 849].)
When a motion to continue is based on the need to interview potential witnesses,
the court should consider the diligence of defendant and counsel (People v. Grant (1988)
45 Cal.3d 829, 844), the benefit that the moving party anticipates, the likelihood that such
benefit will result, the burden on other witnesses, jurors and the court, and whether
granting the motion will accomplish or defeat substantial justice (People v. Barnett
(1998) 17 Cal.4th 1044, 1125-1126). A defendant has the burden of showing by
“affirmative proof . . . that the ends of justice require a continuance.” (Cal. Rules of
Court, rule 4.113.) Thus, “When a continuance is sought to secure the attendance of a
witness, the defendant must establish ‘he had exercised due diligence to secure the
witness’s attendance, that the witness’s expected testimony was material and not
cumulative, that the testimony could be obtained within a reasonable time, and that the

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facts to which the witness would testify could not otherwise be proven.’ [Citation.]”
(People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
Upon review, “the appellate court looks to the circumstances of each case and to
the reasons presented for the request” (People v. Frye, supra, 18 Cal.4th at p. 1013), and
the defendant bears the burden of establishing that denial of a continuance constituted an
abuse of discretion (People v. Beeler (1995) 9 Cal.4th 953, 1003). “ ‘Discretion is
abused only when the court exceeds the bounds of reason, all circumstances being
considered.’ ” (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
We reject appellant’s challenge to the denial of his motion for continuance. First,
appellant has not affirmatively shown the required diligence. As best we can determine,
the basis for appellant’s request for a continuance of his trial was the claim that he needed
more time in order provide counsel with information regarding “potential [defense]
witnesses,” so that counsel could contact and interview these witnesses. With respect to
this claim, defense counsel’s declaration indicates the following: appellant was aware of
the existence of such witnesses on April 28, but had no “contact information”; in order to
obtain such information, he had to make telephone calls to certain persons to whom he
refers in his opening brief as “third parties”; but he was in custody, and was prevented
from making these calls because he and other jail inmates were put “on ‘lock-down’
status” on May 2, four days after he advised counsel of these matters.
Appellant does not attempt to explain why it was not until April 28 that he told his
counsel of the existence of potential witnesses; the record is silent on this question. If
appellant knew of such witnesses for several weeks but made no mention of them to
counsel before April 28, he could not be said to have acted with due diligence. And even
if we assume appellant had not learned, and through the exercise of due diligence could
not have learned, of the existence of the “potential witnesses” before April 28, there is
nothing in defense counsel’s declaration or anywhere else in the record indicating what
steps, if any, appellant took to learn of the existence of these witnesses during the more

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than three weeks that elapsed between the filing of the information, on April 4, and
April 28. Moreover, the record is similarly silent as to what efforts appellant made to
make telephone calls to third parties between April 28, when, counsel’s declaration
makes clear, appellant was aware of the existence of potential witnesses, and May 2, the
first day the lock-down which prevented from making such calls went into effect. As
indicated above, appellant has the burden of establishing he acted with due diligence.
Because the record contains no indication that prior to the filing of the motion for
continuance appellant did anything to provide his counsel with information necessary to
contact potential witnesses, he has not met this burden.
Moreover, appellant has not established any likelihood that he would benefit from
obtaining a continuance for the purpose of making contact with “potential witnesses.”
Specifically, he has not established “that the witness’s expected testimony was material
and not cumulative, that the testimony could be obtained within a reasonable time, and
that the facts to which the witness would testify could not otherwise be proven.’
[Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Indeed, he makes no
showing of what the witnesses’ expected testimony would be. Defense counsel’s May 4
declaration stated only that appellant indicated “he may have potential witnesses” who
“may be exculpatory,” and defense counsel, at the hearing on the motion on the morning
of May 8 told the court she was requesting more time to contact “potential witnesses . . .
to see if they can provide any helpful information . . . .” (Emphasis added.) And later on
May 8, when counsel renewed the motion, although she suggested she had obtained
“witness names and contact information,” she gave no indication of what the witnesses’
expected testimony would be. On this record, any benefit the defense could have realized
from a continuance was entirely speculative. Therefore, appellant has not met his burden
of establishing the court abused its discretion in refusing appellant’s request for a
continuance. (Cf. People v. Gatlin (1989) 209 Cal.App.3d 31, 40-41 [although
continuance proper to permit defendant to investigate exculpatory evidence, speculative

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nature of what is to be gained by a continuance justifies its denial]; People v. Snow
(2003) 30 Cal.4th 43, 75 [“bare assertions” about needing more time insufficient to
demonstrate good cause]; People v. Roybal (1998) 19 Cal.4th 481, 505 [“vague
expressions of hope that an appropriate expert could be found” insufficient]; People v.
Courts (1985) 37 Cal.3d 784, 791 [availability of attorney too speculative to warrant
continuance]; People v. Murphy (1973) 35 Cal.App.3d 905, 920 [grounds for continuance
too speculative].)
Imposition of Upper Term
Appellant contends he was denied his rights to trial by jury and due process of law
under the United States Constitution because the court imposed the upper term based on
circumstances in aggravation that were not found by a jury beyond a reasonable doubt.
Background
In imposing the upper term, the court found no circumstances in mitigation and the
following circumstances in aggravation: “[appellant’s] prior convictions as an adult are
numerous” and “his prior performance on parole and probation has been unsatisfactory.”
The report of the probation officer (RPO) indicates appellant has suffered four
prior felony convictions and at least nine misdemeanor convictions. The RPO also
indicates appellant’s probation was revoked on one occasion, he committed three parole
violations and he committed at least six misdemeanors while on probation.
Analysis
In Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely), the
United States Supreme Court held: “ ‘Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’ ” (Id. at p. 301, quoting
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348] (Apprendi).)
Thereafter, in People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court
held that the imposition of upper terms under California law does not constitute an

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increase in the penalty for a crime beyond the statutory maximum, and therefore “the
judicial fact finding that occurs when a judge exercises discretion to impose an upper
term sentence . . . does not implicate a defendant’s Sixth Amendment right to a jury
trial.” (Id. at p. 1244.)
Recently, however, in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct.
856] (Cunningham) the United States Supreme Court found that Black was wrongly
decided. The high court held: “Under California’s DSL [determinate sentencing law], an
upper term sentence may be imposed only when the trial judge finds an aggravating
circumstance. [Citation.] [A]ggravating circumstances depend on facts found discretely
and solely by the judge. In accord with Blakely, . . . the middle term prescribed in
California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.]
(‘[T]he “statutory maximum” . . . is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the defendant.’
(emphasis in original)). Because circumstances in aggravation are found by the judge,
not the jury, and need only be established by a preponderance of the evidence, not
beyond a reasonable doubt, [citation], the DSL violates [the] . . . bright-line rule
[announced in Apprendi]: Except for a prior conviction, ‘any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, 127
S.Ct. at p. 868.)
At least one of the aggravating factors here, viz., appellant’s numerous prior
convictions, fell within the Apprendi/Blakely/Cunningham prior conviction exception and
therefore did not implicate appellant’s right to a jury trial. We recognize that the
numerous-prior-convictions factor is not, strictly, “ ‘the fact of a prior conviction.’ ”
(Blakely, supra, 542 U.S. at p. 301, emphasis added.) However, “[C]ourts have
construed Apprendi as requiring a jury trial except as to matters relating to ‘recidivism.’
Courts have not described Apprendi as requiring jury trials on matters other than the

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precise ‘fact’ of a prior conviction. Rather, courts have held that no jury trial right exists
in matters involving the more broadly framed issue of ‘recidivism.’ ” (People v. Thomas
(2001) 91 Cal.App.4th 212, 221.) Thus, in Thomas the court held “the language in
Apprendi, . . . ‘[o]ther than the fact of a prior conviction,’ refers broadly to recidivism
enhancements which include [Penal Code] section 667.5 prior prison term allegations.”
(Id. at p. 223.) In our view, the numerous-prior-convictions aggravating factor is, like the
prior prison term enhancement, so closely related to recidivism that it falls within the
exception.
The other aggravating factor at issue here, appellant’s unsatisfactory performance
on parole and probation, is not as closely related to recidivism. Although a grant of
probation or parole presupposes a prior conviction, the RPO suggests that three of
appellant’s parole violations were based on noncriminal conduct. But even assuming it
was required under Cunningham that this factor be found beyond a reasonable doubt by a
jury, reversal is not required. A single factor in aggravation suffices to support
imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.) And as
indicated above, appellant suffered at least 13 prior convictions, four of which were for
offenses serious enough to be classified as felonies. Any error in considering appellant’s
unsatisfactory performance on parole and probation was harmless under both Chapman v.
California (1967) 386 U.S. 18 (harmless beyond a reasonable doubt) and People v.
Watson (1956) 46 Cal.2d 818 (reasonable probability error did not impact outcome).
DISPOSITION
The judgment is affirmed.

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