Can a defendant bring a motion for a continuance on the basis of incompetent trial counsel?

Moreover on the date of trial when the amended information was filed, defendant's counsel acknowledged receipt of a copy, advised the court he understood it, and agreed that it was for the purpose only of correcting errors in the original. Neither defendant's counsel nor defendant personally objected to the filing of the amended information nor was a continuance requested. Failing that, defendant may not now complain on appeal. (See, e.g., People v. Wrigley (1968) 69 Cal.2d 149, 160, 70 Cal.Rptr. 116, 443 P.2d 580.)

Incompetency of Trial Counsel

Defendant contends his trial counsel was incompetent in two respects each of which prejudiced his defense. The first instance of alleged incompetence is counsel's failure to request a continuance on the first day [43 Cal.App.3d 706] set for trial, when the amended information was filed. We have discussed this situation at some length hereinabove. We see no incompetence in failure to move for a continuance. Counsel was the same deputy public defender who had been appointed at the outset and who represented defendant from the time of the first arraignment. The record shows he was thoroughly familiar with the case and had no reason to seek a continuance. He was ready for trial and the amended information, of which he had received a copy, changed nothing of substance insofar as the charges were concerned. The failure to request a continuance did not operate to withhold or defeat presentation of any crucial defense. The trial was not reduced to a farce or sham. (See People v. Najera (1972) 8 Cal.3d 504, 516, 106 Cal.Rptr. 345, 503 P.2d 1353.)

The second instance of incompetence alleged is counsel's refusal to subpoena the two children as defense witnesses. We have discussed this situation at some length hereinabove. The record is clear that counsel refused to call the children for the sound tactical reason that if the children were to testify truthfully the testimony would be unfavorable to his client. Inadequate representation must be shown not as a matter of speculation but as a demonstrable reality. (People v. Reeves (1966) 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 415 P.2d 35.) Defendant has not met this burden.

Constitutionality of Penal Code Section 496