On September 20, Miller again filed a motion for continuance, again asserting, without particulars, that more time was needed to investigate newly discovered evidence. On September 21, the court denied the motion for failure to give two days’ notice and for lack of specific facts showing good cause. Because Miller was absent due to a fire in his office building, however, sentencing and the modification motion were continued to September 24.
On September 24, however, Miller was again absent, this time because of a family emergency. Attorney Maple declared himself unprepared to make the motion for new trial. The court put the matter over to the next day.
On September 25, Maple renewed the earlier continuance motion. Maple explained that in order to corroborate the defense theory of a police conspiracy to frame defendant (apparently by getting his fingerprint on a bubble shield similar to that worn by the killer), the defense had been seeking, but had had difficulty obtaining, Pasadena Police Department reports and hospital records relating to automobile accidents discussed on a police dispatch tape. These reports and records would, the defense hoped, show the true origin of the bubble shield introduced at trial. The court again denied the continuance.
We conclude the court’s ruling did not deprive the defense of a reasonable opportunity to prepare a new trial motion. As the prosecutor noted in opposing the continuance, the defense theory of a police scheme to plant evidence against defendant was of long standing (see People v. Snow, supra, 44 Cal.3d at p. 220), and counsel failed to explain why the records now under investigation had not been investigated in preparation for defendant’s first trial or in the two and one-half years since Miller was reappointed to defend defendant in the retrial. Nor did counsel’s explanation demonstrate that a continuance was likely to be useful (see People v. Frye (1998) 18 Cal.4th 894, 1013); it was far from clear, that is, that a