People v. Jarvis CA3

Filed 10/7/15 P. v. Jarvis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----

THE PEOPLE, C073706

Plaintiff and Respondent, (Super. Ct. No. 12F07296)

v.

JEFFERY SCOTT JARVIS,

Defendant and Appellant.

While Celina Chavez and Jonathan Montoya were in the process of moving out of
their home, they discovered an intruder had broken in, ransacked the place, and
absconded with many of their possessions. An information charged defendant Jeffery
Scott Jarvis with burglary and receiving stolen property. (Pen. Code, §§ 459, 496,
subd. (a); all further statutory references are to the Penal Code.) A jury found defendant

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guilty on both counts. Sentenced to seven years in state prison, defendant appeals,
challenging the sufficiency of the evidence on both counts, alleging instructional error,
and arguing the court abused its discretion in denying his request to continue the
sentencing hearing. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Burglary
In October 2012 Chavez and Montoya began moving out of their shared home.
Their neighbor was Tracy Bowser; a fence separated their backyards. At least four days
before Chavez and Montoya began their move, defendant began staying with Bowser.
Montoya stated defendant was always around, and Chavez had seen defendant outside
Bowser’s residence “a lot.” While they were moving, Chavez saw defendant sitting on a
bicycle and watching her load things into the moving van. Defendant was with a woman,
but it was not Bowser.
In the evening, Chavez and Montoya finished the day’s moving. After locking the
doors, the couple left for the night.
They returned in the afternoon the following day. As Chavez opened the front
door, she heard the back door creak and a commotion in the backyard. Chavez described
the noise as a “pitter patter” and heard the sound of something being dropped and a dog
barking. Montoya saw the back door “closing a little bit” and heard footsteps.
According to Montoya, it sounded like someone leaving the house.
Chavez called out “hello,” but there was no response. The kitchen window was
broken and the glass was inside the house, and many of Chavez’s possessions had been
moved. Items were piled next to the open back door; other possessions were in the
backyard and piled next to the fence separating Chavez’s and Bowser’s yards.
Shortly after entering the house, Montoya walked out to the backyard. He saw
defendant in Bowser’s yard jumping up to see into Chavez’s yard. Defendant asked

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Montoya what happened and said he had heard a dog barking all night. Montoya told
defendant, “It looks like something happened here.”
Montoya noticed three loose boards in the fence, which would have left a three-
foot by six-foot gap in the fence. When Montoya looked at the fence the day before, he
had not noticed any loose or partially removed fence boards. After Montoya saw the
fence, defendant grabbed the top of the boards and said, “These are loose.” Defendant
began kicking the boards, attempting to put them back into place.
Inside the house, Chavez heard the pounding and looked outside. She saw
defendant trying to kick the loose fence boards back into place. Chavez kept a small dog
in her backyard, so she was concerned about the security of the fence. She had never
previously found a loose or missing board.
After Chavez called 911, Officer Tobi Hitchcock arrived. Hitchcock saw the
broken kitchen window and found an open window in a bedroom. In the backyard,
Hitchcock found several personal items piled up against the fence. She also saw the
loose fence boards, which she described as being in place but not fully attached to the
support board.
Hitchcock and another officer went to the Bowser residence. They called into the
open front door and asked for someone to come outside. Defendant came out of the
house, and Hitchcock asked him his name and birth date. Defendant told her his name
was Paul Hall and his date of birth was October 15, 1957. A records check failed to
locate anyone with that name and birth date.
Hitchcock asked defendant for identification. He pulled out a silver case from his
pocket and said he used to keep his identification in a case just like it, but it had been
stolen. He eventually pulled a wallet out of his pants, and pieces of paper with the name
“Jeffery Jarvis” on them fell out. Hitchcock asked defendant if he was Jeffery Jarvis, but
defendant said he was not. A computer search of the name Jeffery Jarvis unearthed a
photo of defendant.

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 Bowser came out of the house. She said she had been sleeping and did not know
what was going on. Bowser gave permission for the officers to search her home.
Hitchcock found numerous items belonging to Chavez inside Bowser’s house, including
a purse, a computer monitor, jewelry boxes, clothing, a keyboard, a stuffed animal, and
nail polish. She found Chavez’s belongings in the living room, kitchen, and sole
bedroom. Chavez’s stereo was hooked up in Bowser’s living room, playing music. The
search failed to recover Chavez’s missing jewelry, a computer tower, clothing, and shoes.
Defense Case
Officer Lee Yonemura accompanied Officer Hitchcock when the two entered
Bowser’s residence. When Yonemura asked defendant for permission to enter the house,
defendant said he would get the owner of the house. He returned with Bowser, who gave
the officers permission to enter. The officers found defendant’s backpack next to a table
in the living room. Although the backpack did not contain any of Chavez’s property, her
jewelry box and computer monitor were found in and on the nearby table.
Defendant also presented testimony by a neighbor of Bowser, Shelly Ann Jones.
The day of the robbery, Jones returned home and found Christina Thompson, a guest of
Jones’s roommate, in the kitchen. Thompson asked Jones if she wanted to buy several
items similar to those taken from Chavez, including a computer monitor, nail polish,
makeup, and jewelry. Thompson did not have the items with her. Jones was not
interested and left to finish some work she was doing across the street. When Jones
returned, Thompson was still in the house. Jones saw the police across the street and told
Thompson that if she had done something, she might want to “face up to what it is you’ve
done.” Thompson said she got the items from her aunt.
Subsequent Events
An information charged defendant with burglary and receiving stolen property.
The information further alleged that defendant had suffered one prior strike (§§ 667,

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subds. (b)-(i), 1170.12) and five additional prior convictions within the meaning of
section 667.5, subdivision (b).
A jury found defendant guilty on both counts. In a bifurcated trial, the trial court
found all prior conviction allegations true. The court sentenced defendant to six years for
burglary, six years for receiving stolen property, which it stayed under section 654, and
one year on a prior conviction enhancement, for a total of seven years in state prison.
Defendant filed a timely notice of appeal.
SUFFICIENCY OF THE EVIDENCE
Burglary
Defendant challenges the sufficiency of the evidence supporting his conviction for
burglary. According to defendant, the evidence established that Chavez and Montoya
heard something when they entered the residence, but substantial evidence does not
support a finding that the noise they heard was a person leaving through the back door,
much less that the person was defendant.
In reviewing a defendant’s challenge to the sufficiency of the evidence, we review
the whole record in the light most favorable to the judgment to determine whether it
discloses substantial evidence. Substantial evidence is evidence that is credible,
reasonable, and of solid value such that a reasonable jury could find the defendant guilty
beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).)
We do not reassess the credibility of witnesses, and we draw all inferences from
the evidence that supports the jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th
1355, 1382.) Unless the testimony of a single witness is physically impossible or
inherently improbable, it is sufficient to support a conviction. (People v. Young (2005)
34 Cal.4th 1149, 1181.)
Under section 459, burglary requires an unlawful entry with the specific intent to
commit a felony. However, a defendant may be guilty of burglary regardless of whether
any felony or theft is actually committed, or the crime actually committed is different

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from that originally contemplated. The carrying away of stolen property is not an
element of burglary. (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.) Burglary
requires entry with the proscribed intent; such entry constitutes the completed crime of
burglary regardless of whether any felony or theft is actually committed. (People v. Allen
(1999) 21 Cal.4th 846, 863, fn. 18.)
The intent required for burglary may be inferred from facts and circumstances.
(In re Leanna W. (2004) 120 Cal.App.4th 735, 741; People v. Moody (1976)
59 Cal.App.3d 357, 363.) The mere possession of stolen property will not alone support
a conviction for theft of property; however, the possession of recently stolen property is
so incriminating that only slight additional evidence is necessary to sustain a burglary
conviction. The jury determines, in light of all the evidence, whether or not such an
inference should be drawn. (People v. McFarland (1962) 58 Cal.2d 748, 754-755.)
Similarly, intent to burglarize can be shown by evidence of unlawful entry, flight
from the scene, and failure to provide a plausible reason for being on the premises. Even
if no crime is committed after entry, flight and the lack of an explanation for being on the
premises provide sufficient evidence for the jury to convict a defendant of burglary.
(People v. Martin (1969) 275 Cal.App.2d 334, 339.)
Here, substantial evidence supports defendant’s conviction for burglary. Although
defendant attempts to diminish their testimony, both Chavez and Montoya stated they
heard noises consistent with someone leaving the premises as they arrived. Upon
opening the front door, Chavez heard the back door, which they had left locked, creak;
she also heard a “pitter patter” and the sound of something being dropped. Montoya saw
the back door “closing a little bit” and heard footsteps that sounded like someone leaving
the house.
Defendant argues neither witness actually saw anyone running out the back door
and their testimony amounts to mere “suspicion,” not evidence. However, substantial
evidence is evidence that is credible, reasonable, and of solid value such that a reasonable

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jury could find defendant guilty beyond a reasonable doubt. (Rodriguez, supra,
20 Cal.4th at p. 11.) Chavez and Montoya returned to find a door they had left locked
slowly closing and heard sounds consistent with someone leaving. This testimony, given
by two percipient witnesses, supports the jury’s conclusion that a person fled through the
back door.
In addition, the evidence at trial supported the jury’s determination that the person
who fled entered the house with the intention to commit a felony. Chavez found her
kitchen window broken from the outside and her possessions missing or strewn around
the house and backyard. Her fence had been tampered with, boards loosened, allowing
access to her property.
Finally, the evidence before the jury supported its finding that defendant was the
person who entered Chavez’s home with the intent to commit a felony. The day before
the burglary, Chavez saw defendant sitting in Bowser’s driveway, watching the move in
progress. The day of the burglary, a mere two minutes after Chavez and Montoya heard
someone run out of the house, defendant appeared in the backyard next door. Defendant
jumped up and down, looking over the fence into Chavez’s yard. After Montoya
discovered the fence’s loose boards, which allowed access onto Chavez’s property,
defendant attempted to kick the boards back into place. When officers questioned
defendant shortly after responding to the burglary, defendant claimed he was Paul Hall
and denied his true identity. At the time Montoya and Chavez heard someone leave the
house, Bowser was asleep in her residence.
Reviewing the record in the light most favorable to the jury’s verdict, we find
credible and reasonable evidence in support of the verdict. Although defendant questions
the witnesses’ testimony, we do not reassess the credibility of Montoya and Chavez, and
we draw all inferences from the evidence to support the jury’s verdict.

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Receiving Stolen Property
Defendant also challenges the evidence in support of his conviction for receiving
stolen property. According to defendant, only his backpack was found in Bowser’s living
room, and mere access or proximity to stolen property is insufficient to sustain a
conviction for receiving stolen property.
A conviction for receiving stolen property requires that (1) the property was
stolen; (2) the defendant knew the property was stolen; and (3) the defendant received,
concealed, or withheld the property. (§ 496; People v. Grant (2003) 113 Cal.App.4th
579, 596.) Possession may be constructive or actual. Actual possession refers to a
defendant’s exercise of direct physical dominion and control over the stolen property.
Constructive possession occurs when the defendant maintains control or a right to control
the property; possession may be imputed when the property is found in a place which is
immediately and exclusively accessible to the defendant and subject to his or her
dominion and control, or to the joint dominion and control of the defendant and another.
(People v. Rushing (1989) 209 Cal.App.3d 618, 621-622; People v. Sifuentes (2011)
195 Cal.App.4th 1410, 1417.)
Possession may be established through circumstantial evidence and resulting
reasonable inferences. However, mere presence near the stolen property or access to
where the property is found is not sufficient evidence of possession sufficient to sustain a
conviction for receiving stolen property. (People v. Land (1994) 30 Cal.App.4th 220,
224-225.)
Defendant argues he had neither actual nor constructive possession of any of
Chavez’s property. He did not knowingly exercise a right to control the stolen property
found in Bowser’s house. Although defendant had been staying at Bowser’s house for
four or five days, he did not live there. “At most the evidence established [defendant]
was an occasional guest, and had been staying there for a couple of days at the time the

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stolen property was discovered.” Therefore, the evidence was insufficient to support the
conviction.
We disagree. Defendant told officers he had only been staying at Bowser’s house
for the last four days. However, Montoya believed defendant was a permanent resident
because he was “always” around. Chavez testified she saw defendant outside Bowser’s
house “a lot.” When officers responded to the 911 call and asked for someone to come
out of Bowser’s house, defendant complied. During their search of Bowser’s residence,
officers found defendant’s backpack next to a table containing some of the stolen
property.
These facts, coupled with defendant’s presence in Bowser’s yard minutes after
Montoya and Chavez heard someone leaving the burglarized home, defendant’s effort to
cover up the hole in the fence, and his subsequent denial of his true identity, support the
jury’s finding that defendant constructively possessed Chavez’s stolen property. Again,
we review the evidence in the light most favorable to the jury’s findings; we do not judge
the credibility of witnesses, and we draw all inferences in support of the jury’s verdict.
Under this rubric, we find sufficient evidence supports defendant’s conviction for
receiving stolen property.
INSTRUCTIONAL ERROR
The trial court must instruct, even in the absence of a request, on the general
principles of law relevant to the issues raised by the evidence. These general principles
refer to those principles closely and openly connected with the facts before the court, and
necessary to the jury’s understanding of the case. (People v. Sedeno (1974) 10 Cal.3d
703, 715.) Before giving an instruction, the court must find legally sufficient evidence in
the record to support the finding or inference that the instruction permits. (People v.
Hannon (1977) 19 Cal.3d 588, 597.) We assess the jury instructions as a whole to
determine whether there is a reasonable likelihood the jury applied the instruction in a
way that violated the defendant’s constitutional rights. (People v. Campos (2007)

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156 Cal.App.4th 1228, 1237.) We review the instructions de novo. (People v. Hamilton
(2009) 45 Cal.4th 863, 948.)
Instruction on Aiding and Abetting
The trial court instructed the jury on aiding and abetting pursuant to CALCRIM
Nos. 400, 401, and 1702. Defendant challenges the instruction, arguing no evidence
supports the giving of the instruction.
Background
The court instructed on the general principles of aiding and abetting: “A person
may be guilty of a crime in two ways. One, he or she may have directly committed the
crime. I will call that person the perpetrator. Two, he or she may have aided and abetted
a perpetrator, who directly committed the crime.
“A person is guilty of a crime whether he or she committed it personally or aided
and abetted the perpetrator.” (CALCRIM No. 400.)
In addition, the court instructed: “To prove that the defendant is guilty of a crime
based on aiding and abetting that crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid
and abet the perpetrator in committing the crime;
“And
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.
“If all of these requirements are proved, the defendant does not need to actually
have been present when the crime was committed to be guilty as an aider and abettor.

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 “If you conclude that defendant was present at the scene of the crime or failed to
prevent the crime, you may consider that fact in determining whether the defendant was
an aider and abettor. However, the fact that a person is present at the scene of a crime or
fails to prevent the crime does not, by itself, make him or her, an aider and abettor.”
(CALCRIM No. 401.)
Finally, the court instructed: “To be guilty of burglary as an aider and abettor, the
defendant must have known of the perpetrator’s unlawful purpose and must have formed
the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary
before the perpetrator finally left the structure.” (CALCRIM No. 1702.) Defendant did
not object to any of these instructions.1
Discussion
Contrary to defendant’s characterization of the evidence, we find substantial
evidence in support of the court’s instructions on aiding and abetting. At trial, defendant
presented evidence that Thompson was at Jones’s house, across an intersection and two
doors down from Bowser’s house, when Chavez discovered the burglary. Thompson
tried to sell Jones several items recently stolen from Chavez’s residence. Defendant
argued Thompson alone burglarized Chavez’s house. In response, the prosecution argued
that even if the jury believed Thompson was involved in the burglary, defendant was
guilty as an aider and abettor.
The day of the burglary, defendant sat in the next driveway, accompanied by a
woman who was not Bowser, watching Chavez move. The next afternoon Chavez
discovered the burglary. Officers found some of Chavez’s stolen items in Bowser’s
house, where defendant was staying, and in the same room as defendant’s backpack.

1 The People contend defendant’s failure to object forfeits his claim. However, in order
to forestall a potential claim of ineffective assistance of counsel, we shall address the
issue.

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Shortly after Chavez discovered the theft, defendant appeared in Bowser’s backyard and
attempted to fix the fence boards that allowed access to Chavez’s yard. When questioned
by police, defendant gave a false name. Given the evidence, the jury could conclude that
if defendant was not the direct perpetrator, he knew of the perpetrator’s unlawful purpose
and acted with the intent to aid in the burglary. We find no error in the instructions on
aiding and abetting.
Failure to Give a Unanimity Instruction
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . .
Additionally, the jury must agree unanimously the defendant is guilty of a specific crime.
[Citation.] Therefore, cases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th
1124, 1132.)
The “ ‘requirement of unanimity as to the criminal act “is intended to eliminate the
danger that the defendant will be convicted even though there is no single offense which
all the jurors agree the defendant committed.” [Citation.] . . . “The [unanimity]
instruction is designed in part to prevent the jury from amalgamating evidence of
multiple offenses, no one of which has been proved beyond a reasonable doubt, in order
to conclude beyond a reasonable doubt that a defendant must have done something
sufficient to convict on one count.” [Citation.]’ ” (People v. Norman (2007)
157 Cal.App.4th 460, 464-465 (Norman).)
According to defendant, the prosecution presented at least two distinct entries in
support of the burglary charge: an entry by defendant on October 29 and an entry by
defendant and Thompson, or just Thompson, sometime between October 28 and
October 29. Each entry constituted a separate criminal act. Because the prosecution
failed to clearly elect which of these entries constituted the burglary charge, the court
erred in failing to give a unanimity instruction sua sponte.

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 The prosecution acknowledges there may have been multiple entries, but the
entries were close in time and part of a continuous course of conduct comprising a single
common plan and thus fall within cases treating multiple thefts committed pursuant to
one intention, one general impulse, and one plan as one theft. (People v. Bailey (1961)
55 Cal.2d 514.) Defendant argues burglary is different from simple theft and cites
People v. Washington (1996) 50 Cal.App.4th 568 (Washington) as so holding. In
Washington the defendant made one entry into an apartment and remained in the vicinity
before effectuating a second entry into the same apartment. Relying on Bailey, the
defendant argued that as a matter of law he could be convicted of only one burglary.
(Washington, at p. 574.)
The Washington court disagreed, pointing out that although in many cases the goal
of a burglary is theft, burglary occurs regardless of whether a theft is accomplished or
even attempted. More importantly, the conduct described and proscribed by section 459
is a single act: entry. Under section 459, burglary consists of an unlawful entry with the
intent to commit a felony and therefore is complete upon entry with the requisite intent.
Multiple entries give rise to multiple offenses, though punishment may be limited by
section 654. Washington thus supports defendant’s assertion that each entry into a
residence with the intent to commit a felony constitutes a separate burglary offense and
thus a unanimity instruction was required.
However, not every failure to give a unanimity instruction constitutes reversible
error. The harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705] applies and the question is whether the error was harmless beyond a
reasonable doubt. (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).)
The failure to give a unanimity instruction is harmless where there is no reasonable
possibility of a disagreement among the jurors regarding the specific acts that could
support the charged offense. (People v. Napoles (2002) 104 Cal.App.4th 108, 119;

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People v. Jenkins (1994) 29 Cal.App.4th 287, 299; People v. Burns (1987)
196 Cal.App.3d 1440, 1458.)
Here, the jury unanimously found true all of the elements of burglary despite
defendant’s argument he was not involved as either the direct perpetrator or an aider and
abettor. We have rejected defendant’s claim that the evidence was insufficient. His
defense did not rest in the timing of the entry and there is no reasonable possibility of
disagreement regarding the acts underlying the offense. There is simply no reason to
believe that a unanimity instruction would have influenced the jury’s verdict. Thus, even
accepting the application of the Washington holding to our case, any error in failing to
give a unanimity instruction was harmless.
Instruction on Consciousness of Guilt
Defendant also argues the trial court erred in instructing on defendant’s
consciousness of guilt. After the trial court stated its intention to instruct pursuant to
CALCRIM No. 362, defense counsel objected, arguing that giving a false name was not a
statement relating to the charged crime. Defendant renews his objection on appeal.
The court instructed the jury: “If the defendant made a false or misleading
statement before this trial relating to the charged crime, knowing the statement was false
or intending to mislead, that conduct may show he was aware of his guilt of the crime and
you may consider it in determining his guilt.
“If you conclude that the defendant made the statement, it is up to you to decide its
meaning and importance. However, evidence that the defendant made such a statement
cannot prove guilt by itself.” (CALCRIM No. 362.) The prosecution, during closing
argument, referred to defendant’s false statements regarding his identity, arguing
defendant did not want officers to know who he was because he had committed the
burglary.
Defendant argues the court erred in giving CALCRIM No. 362 because
defendant’s giving of a false name did not relate to any of the charged crimes. We

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disagree. The issue is whether defendant’s lie is relevant and probative in determining
his guilt. A lie does not have to concern details of the crime in order to establish a
consciousness of guilt and permit reasonable inferences deducible from that. An
innocent person with a jaded past could feel compelled to lie about his identity to avoid
suspicion, but a guilty person, particularly one caught in circumstances suggesting his
complicity, could feel an even greater compulsion to lie about his identity. The
instruction did not require the jury to find the lie was incriminating. Rather, the jury was
told that such “conduct may show he was aware of his guilt of the crime and you may
consider it in determining his guilt.”
CALCRIM No. 362 sufficiently protects against conviction based on the
defendant’s false statements and is neither argumentative nor biased in the prosecution’s
favor. (People v. Stitely (2005) 35 Cal.4th 514, 555.) “The inference of consciousness of
guilt from willful falsehood or fabrication or suppression of evidence is one supported by
common sense, which many jurors are likely to indulge even without an instruction.”
(People v. Holloway (2004) 33 Cal.4th 96, 142.)
The evidence at trial supports the trial court’s instruction on defendant’s
consciousness of guilt. After officers responded to the report of a burglary at Chavez’s
house, they contacted defendant outside the house where the stolen goods were found.
Defendant, who had been staying in the house and who was found in the yard by a broken
fence shortly after the burglary was discovered, answered the officers’ questions. He
gave the officers a false name. The false statement occurred just after the discovery of
the burglary and a reasonable juror could conclude that it reflected defendant’s
consciousness of guilt.
MOTION TO CONTINUE SENTENCING HEARING
Finally, defendant argues the court erred in denying his motion for a continuance.
According to defendant, he requested the continuance in order to allow defense counsel
to investigate potential new evidence from Bowser and Thompson, who were unavailable

15
at trial. Defendant labels the trial court’s denial “arbitrary and unreasonable” and argues
it deprived him of due process.
Background
Following the jury’s verdicts, defendant brought a motion to continue the
sentencing hearing, stating Thompson, who had been unavailable, had recently been
taken into custody. Defendant argued Thompson might provide evidence regarding the
burglary that could exculpate him. According to defendant, Thompson might “admit that
she was the principal and explain who, if anybody, helped her.” He requested a four- to
six-week continuance to investigate.
The trial court asked defendant how he could be sure that a four- to six-week
continuance would accomplish this purpose. The court asked defense counsel what
assurances she could give that four weeks would be sufficient: “[T]hat you won’t be
back here in four weeks and say, gee, Miss Thompson’s proceedings have been delayed.
Her trial’s not set till late this year, whatever it be, that there won’t be a necessity for
prolonged continuances?” Defense counsel answered: “There -- I can’t, I can’t provide
any assurance now, but what I can say is that at least we can figure out the kind of
position we’re in by that point.” The court asked: “By what point, in four weeks?”
Defense counsel responded: “Yes, in four to six.
“There are cases that resolve fairly quickly. I don’t know whether Miss
Thompson’s case is one of those or not. I do not know what her crime report looks like.
“I do not know if she has been interrogated or made any statements yet.
“I don’t know, but I think four to six weeks would give me time to do
investigation, and then I would report back.
“And either we would have what we need or I would make another request and let
the Court make a ruling at that point.”
In response, the court noted the requirement that there be new evidence actually
discovered that is material to the defendant and could not have been produced during the

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trial. In addition, the court found that the issue of whether defendant was a principal or
an accomplice was before the jury. The court concluded that defense counsel’s offer of
proof “is not a firm offer or demonstration before this Court that there exists new
evidence, but only that there might be and, as you say, you would be speculating as to
what might or might not happen with Miss Thompson.
“And certainly the district attorney has clearly explained that as well.
“And even if the Court were to give you a reasonable continuance, there is no
assurance for the reasons stated by the district attorney that the judgment and sentencing
in Mr. Jarvis’ case would postpone anytime soon if Miss Thompson were to demand her
right to jury trial and to representation.
“Just because an unjoined codefendant is apprehended at some time before
imposition of judgment and sentencing does not in this Court amount to or equate to legal
cause for continuing the judgment and sentencing.
“Should in fact your office through your efforts or someone on behalf of Mr.
Jarvis discover material new evidence that tends to exculpate him, there are collateral
avenues of relief available to him.
“So respectfully, the Court denies the request for a continuance.”
Discussion
The party challenging the denial of a continuance bears the burden of establishing
that the court abused its discretion. An order denying a continuance is seldom
successfully attacked. A trial court abuses its discretion only when the court exceeds the
bounds of reason, all circumstances being considered. (People v. Beames (2007)
40 Cal.4th 907, 920.)
A continuance may be granted only upon a showing of good cause, and the trial
court possesses broad discretion to determine whether good cause exists. A showing of
good cause requires a demonstration that counsel and the defendant have prepared for
trial with due diligence. (§ 1050, subd. (e); People v. Alexander (2010) 49 Cal.4th 846,

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934-935; People v. Roldan (2005) 35 Cal.4th 646, 670.) In making this determination,
the trial court may consider not only the benefit anticipated by the moving party, but also
the likelihood such a benefit will result and the burden on the court. A posttrial
continuance of a sentencing hearing is not warranted when it is unclear that a reasonable
continuance would produce any material evidence. (People v. Snow (2003) 30 Cal.4th
43, 77; People v. Hill (1976) 64 Cal.App.3d 16, 34-35.)
Defendant argues that, in requesting the continuance, defense counsel sought to
“investigate potentially exculpatory evidence made newly available by the completion of
Bowser’s criminal matter, and the location of Thompson who had just been taken into
custody at the time of the sentencing hearing. The purpose of the investigation was to
interview the witnesses to determine whether either of them could exclude [defendant’s]
participation in the crimes, and if so, to prepare a motion for new trial.” Therefore, a
continuance would be “useful,” and the evidence would be material and could be
obtained within a reasonable time.
The trial court considered this argument and found it wanting. As the court
pointed out, defense counsel was presenting only speculation that Thompson would be
willing to provide actual new evidence pertinent to defendant’s case. Nor could defense
counsel assure the court that any possible evidence could be obtained within a reasonable
time. In requesting the continuance, defense counsel could not provide the court with the
assurance that four to six weeks would be sufficient, but stated “at least we can figure out
the kind of position we’re in by that point,” leaving the possibility of a second request for
a continuance. Given the speculative nature of the evidence sought and the open-ended
time frame acknowledged by defense counsel, the trial court did not abuse its discretion
in denying the motion for a continuance.2

2 Since we find no errors on the part of the trial court, we reject defendant’s claim of
cumulative error.

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 DISPOSITION
The judgment is affirmed.

RAYE , P. J.

We concur:

NICHOLSON , J.

BUTZ , J.

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