Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 160022
RIVERA, J.
Nicholas Beaudreaux appeals from a judgment upon a jury verdict finding him guilty of first degree murder (Pen. Code, § 187) and attempted second degree robbery (§§ 211, 664). As to both offenses, the jury also found true the allegation that defendant was armed with and personally used a firearm and intentionally discharged it causing great bodily injury (§§ 12022, subd. (a)(1); 12022.5, subd. (a); 12022.53, subds. (b) & (c)). As to the murder offense, the jury found true the additional allegation that defendant personally and intentionally discharged a firearm inflicting great bodily injury causing death in violation of sections 12022.7, subdivision (a), and 12022.53, subdivision (d). Defendant contends that the trial court abused its discretion in refusing to grant defense counsel a mid-trial continuance, and that the trial court erred in denying the motion for a new trial based on ineffective assistance of counsel and newly discovered evidence. We affirm.
All further statutory references are to the Penal Code.
I. FACTS
On the evening of September 3, 2006, Aluma Raymond Nkele went out for drinks with his friends, Wayne Drummond, Dayo Esho and Shandon Massey at Kip’s on Durant Avenue in Berkeley. After drinking a couple of pitchers of beer, the group left and walked up to Telegraph Avenue. They saw a large crowd in front of Blakes, a bar on Telegraph, and proceeded to walk in that direction. Nkele ran into his friend, Marquel, on the corner of Durant and Telegraph and stopped to talk with him.
Nkele and Esho were 2005 graduates of the University of California, Berkeley (UCB); Massey graduated from UCB in 2004. Drummond attended community college.
Esho saw Crowder and greeted him, but Crowder did not reciprocate and instead tapped defendant who was with him and said, “That’s him. That’s him, ” pointing. Drummond was in the group behind Esho. Crowder and Drummond then started to argue angrily. Nkele and Massey also heard the argument ensuing between Drummond and Brandon Crowder, who was also one of Nkele’s friends. Nkele could hear that Drummond was upset but he could not hear what Drummond and Crowder were arguing about. Massey testified that he heard Drummond and Crowder agree to settle their argument around the corner.
Nkele found Crowder to be a bit immature so Nkele was a “big brother” to him and tried to mentor him by having him associate with his friends.
Esho tried to break up the fight. But Drummond and Crowder continued to argue and walked around the corner up Durant Avenue. Esho followed them and defendant was behind him. Massey was following the group behind Esho. Esho heard defendant say, “I don’t know how to fight, but I know how to use this metal.” Esho continued to try to physically break up Drummond and Crowder. A crowd of people followed them.
Drummond and Crowder eventually stopped and faced each other on Durant Avenue and continued arguing. At some point, Drummond pointed to Crowder and said, “I’ll fuck you up, I’ll fuck you up.” He also said the same thing to defendant and a third unidentified male that was with them. Massey testified that he heard Drummond say, “I’ll fuck you up” and “I don’t care. I’ll fight anybody.” Crowder then said, “Yo, somebody handle this, ” and moved to the left. Defendant then walked up to Drummond, pointed a gun at his neck, and aggressively said, “You need to give me your wallet right now.” Massey told police that he heard the gunman say, “Give me your wallet or break yourself.” Drummond grabbed the barrel of the gun and tried to wrestle it away from defendant. As Drummond pushed the gun away to his right and started to run, defendant pulled the trigger. Drummond ran up Durant. Esho heard a gunshot. He testified that the gun had been pointed at the area between Drummond’s hip and stomach. Defendant followed Drummond up Durant but stopped when Esho approached him. Esho told him to “leave us alone.” Defendant said, “He tried to grab my pistol.” Defendant turned and walked back down Durant towards Telegraph while Esho went to find Drummond.
Esho found Drummond on Bowditch, just a few feet from Durant. He was rolling around on the ground. Esho tried to see if he had been shot. He checked his shirt where he thought Drummond had been shot but saw no blood or any signs of a bullet wound. A young man was near Drummond and told Esho that he had seen him fall pretty hard and did not think he had been shot. The man was not part of Esho’s group of friends. Esho tried to talk with Drummond, but he was moaning and looked like someone who had had too much to drink.
Nkele also heard the gunshot and followed the crowd at a brisk pace and heard a pop. He did not see a gun or the shooter. The crowd dispersed. Nkele ran up Durant Avenue in search of Drummond. Massey also followed Drummond and found his wallet on the sidewalk near the area of the gunshot and picked it up. When he got to Bowditch, he saw Drummond on the ground. Esho and Massey, and another man were also there.
Nkele checked on Drummond and thought he was very drunk. His speech was slurred and he did not look good. Nkele spoke with Esho and knew someone had brandished a gun. Nkele and Massey checked Drummond for injuries, but did not see anything. Drummond was wearing a white shirt and there was no blood on it.
Nkele then went to meet Crowder who was around the corner on Durant and got into Crowder’s car. They had a brief conversation. Crowder apologized and told Nkele, “I’m sorry it happened like that. But, you know, you mess with me, that’s what you get.” Nkele told Crowder to stay away from Drummond: “Wayne doesn’t exist to you from now on. Okay. You see each other, no eye contact. Don’t say anything at all. Just keep walking.” Nkele had no idea that Drummond had been shot. He got out of the car and Crowder drove away.
Nkele returned to Drummond and found him in the same condition. Drummond asked for water. He was not able to stand, and was slurring his words. Esho left to get water. He drove to the Chevron station at Telegraph and Ashby and bought two bottles of water. There, he saw Crowder’s van drive away from the station. A surveillance tape from Chevron showed Esho’s car and Crowder’s van at the station and Esho at the window of the minimart there. Esho left the Chevron station at 1:54 a.m.
Esho returned to Drummond and tried to give him the water, but Drummond was not able to drink it. Officer Elgin McIntosh, who was on routine patrol, noticed a man on the ground and stopped to determine whether he needed medical assistance at approximately 2:00 a.m. Drummond appeared to be intoxicated; he was somewhat responsive, he had vomited, and his speech was slurred. McIntosh did not observe any injuries or blood on Drummond. Although McIntosh asked Esho and the others present what had happened, no one mentioned the shooting. Nkele testified that “at that point, I’m thinking... honestly and truthfully... we’re going to sleep this off. I’m going to take him to a bed, we’re going to sleep this off and deal with all this in the morning.” Massey did not want to deal with the police, and Drummond had said he wanted to go home. Esho, Nkele, and Massey placed Drummond in Esho’s car and took him to a sorority on 2311 Prospect Street, where Nkele was staying. Once he was in Nkele’s room, Esho noticed that Drummond was bleeding from the nose and was nonresponsive. Esho called 911.
Emergency personnel responded to Esho’s call but were unable to save Drummond. Drummond died from a gunshot wound to the right hip, penetrating his pelvis, fracturing his pelvic bone, and hitting a major blood vessel. He suffered substantial internal bleeding and went into shock. He had gunshot residue on his hands. It is impossible to determine whether Drummond would have survived the injury had he received prompt medical attention.
On the afternoon of September 4, 2006, Esho, Massey, and Nkele identified Crowder as the person who had argued with Drummond early that morning.
The police interviewed Crowder in September 2006 and learned that Crowder had gone to school with the person who shot Drummond.
In 2008, the police learned that Crowder was involved in a criminal threats case. Crowder turned himself in to the Berkeley police department on February 13, 2008 on the threats warrant. Crowder waived his Miranda rights and eventually identified defendant’s photograph from a middle school yearbook as Drummond’s shooter. He then identified defendant from a photographic lineup.
Miranda v. Arizona (1966) 384 U.S. 436.
On February 19, 2008, the police transported Crowder and defendant in a van from the Berkeley jail to the North County jail for court. The van had a tape recorder and during the drive defendant made various comments to Crowder including, “You think it’s hard now? Shit’s about to get real out here.... Respect my gangster.... No turning back.” Defendant also told Crowder, “You just better start praying man because your life is about to change in about one damn minute now. You’ll never see daylight again.” And defendant said, “Man, fuck this... timing man. If you would have kept your mouth shut, we wouldn’t be in this shit. You just don’t know where everything is.”
On February 14, 2008, Esho identified defendant as possibly being the shooter in two photographic lineups. Esho identified defendant as the shooter at both the preliminary hearing and at trial. Massey was not absolutely sure that defendant was the shooter.
Crowder was initially a codefendant with defendant at trial. After the jury was selected, however, Crowder entered into a plea agreement with the prosecution under which he agreed to testify against defendant. Crowder testified that he entered into a written plea agreement under which he agreed to plead no contest to a charge of voluntary manslaughter, with the understanding that he would testify truthfully in the case and in exchange he would be sentenced to time served.
Crowder testified that he suffered a misdemeanor conviction for possession of stolen property in 2005. In September 2006, he was 19 years old and living in Berkeley. He had known defendant since middle school. He met Drummond through a friend at a party in 2005. Drummond was friends with Nkele, who was also one of Crowder’s friends. Drummond was a mentor to Crowder in 2006, but at some point, they were no longer getting along. Crowder grew annoyed with him. He told others that he wanted to “get” him or “stomp” him.
On September 3, 2006, Crowder drove to Blakes with some friends and smoked some marijuana. At Blakes, Crowder shared some marijuana with defendant. At about 1:30 a.m., he left Blakes and saw defendant hanging around with some people. He shook defendant’s hand, and defendant said, “I’ll see you next time.”
Esho then approached Crowder and greeted him, but Crowder focused on Drummond who was behind Esho. Crowder and Drummond started to talk “trash” to each other. They began to argue and agreed to fight. Crowder testified, “I was fed up with all the name calling, and I was just kind of excited.” They walked up Telegraph and then turned right on Durant. Esho, defendant, and others followed them “to see a fight.” He could hear defendant talking but he did not remember what he said. At some point, they stopped walking, faced each other, and continued the name calling. They called each other “bitch” and were pushing each other. Esho was trying to break them up. Drummond pointed to Crowder and said, “I’ll fuck you up”; he also pointed to defendant and said the same thing. Crowder stepped back. Defendant broke through the crowd, pulled out a gun, and pointed it at Drummond’s neck. Defendant told Drummond, “You need to give me your money right now.” Drummond wrestled with defendant for the gun and then a shot went off. Drummond jumped back and then ran up Durant. Crowder did not think that Drummond had been shot. After meeting up with Nkele, Crowder drove to the Chevron station to meet with Trevina, a female friend. Crowder positively identified defendant as the shooter.
II. DISCUSSION
1. Motion for Continuance
Defendant contends that the trial court abused its discretion and denied him due process when it denied defense counsel’s request for a continuance to address his back pain.
a. Factual Background
On June 15, 2009, during the prosecution’s case, the court recessed the trial until June 29, 2009 because it was going to be covering another judge’s calendar the following week. On Monday, June 29, 2009, defense counsel informed the court that he had gone to the emergency room at Highland Hospital on Saturday, June 26, 2009 because of intolerable back pain. Dr. Nagdev gave him a prescription for Vicodin and said that his symptoms were consistent with radiculopathy or a compressed nerve. Defense counsel represented that he was told he could return to work in five days. He also told the court he did not feel able to function, he could feel the effects of the Vicodin, and he was in significant pain. Defense counsel said, “the analogy I would use... if I were an airplane pilot, I don’t think I’d be flying a plane today. But it’s obviously the Court’s decision whether [to] proceed or not. I’d like to go home, but if I have to sit here and try this case, that’s what I’m going to do.” The prosecutor indicated that he had offered to help defense counsel with exhibits, recordings, and other matters so that defense counsel could remain seated during questioning and examination and that he anticipated resting the case on Wednesday. Finally, the prosecutor said that it was “the People’s position that we go forward, and if at some point during the day it becomes unbearable for Mr. Kelvin, perhaps he can let us know. In other words, to go forward with what we have now.” The court stated, “I don’t care what the People’s position is, quite frankly. [¶] Here’s the issue. Mr. Kelvin, you’ve indicated you’ve had this. I have back pain every day. And I think I told the lawyers, every day I do 20 minutes of stretching. It’s been since 2003 where I saw an orthopedist, and I continue to do this because it’s part of the routine. We all have, as we age, we get these back issues. I was reading a book right now regarding somebody and [his] back. [¶] I do have this emergency [form]—from an emergency doctor at Highland who says, ‘[r]estrictions, no work requiring repetitive bending.’ And I do have Mr. Kelvin saying that he’s had this back pain for a while, but he went in on Saturday and he’s taking this medication. Just knowing the back, knowing what I go through, and I’m not discounting anything you say regarding this, because it talks about a possible sprain of the back and it tells you it could reappear or it couldn’t, when it says about—in this little information you gave me, Mr. Kelvin. [¶] Are you seeing an orthopedist, Mr. Kelvin? [¶] [MR. KELVIN]: I don’t know what qualifications Dr. Nagdev has. He [was just] an emergency room doctor.... I’m supposed to be arranged for an MRI today, but obviously if I’m here— [¶] [THE COURT]: It sort of seems to me—well, like I said, I’ve seen an orthopedist, and they didn’t do an MRI off the top. They just don’t do it, not a specialist in this area. I’m not certain why they haven’t referred you to an orthopedist, because it’s a back. It’s not an emergency room specialist. They don’t have the expertise to deal with backs. And like I said, this is something that we have. This is what we just live with. [¶] My inclination was that—and before even Mr. Wellman [deputy district attorney] made his statement, my inclination is to move forward today, because you’re going to have this back pain. There’s not too much I can do about it, and I don’t think there’s much you can do about it. It’s a thing that’s going to be a whole process for the rest of your life. We would take—my thought is we’re going to take breaks a little more frequently than we do, that you can cross-examine from the bench, Mr. Kelvin, if you don’t feel you can stand up and do it. [¶] What it’s saying here is you shouldn’t be bending. Doesn’t say you shouldn’t be standing. Actually, standing is probably better, but I don’t know. I’m not certain what—I can’t read into this or what the doctor is saying. That’s what my thoughts are. [¶] [MR. KELVIN]: The only other comment I would have, I have a number of materials relating [to] this case in the car, which I didn’t carry in the court because it was kind of hard to carry them. But I’ll just limp back and get them if I can get them in. [¶] [THE COURT]: No. Mr. Payne will get them for you, from the DA’s office. [¶] [MR. KELVIN]: He doesn’t know where they are. [¶] [THE COURT]: He’ll go with you, and he’s going to carry them back for you. [¶] [MR. KELVIN]: Okay. Then I’ll have a helper. [¶] [THE COURT]: That’s my thought. And we are going to be off—assuming that Mr. Wellman finishes, I would have us off after Wednesday. You wouldn’t come in on Thursday. [¶] And I’m not certain what you are going to do with your case, Mr. Kelvin. If you’re going to call witnesses, we would start on Monday with the witnesses. And if not, we’ll start—we’ll also do instructions and prepare for argument.” Defense counsel then expressed concern that the prosecution intended to call Crowder that day so he needed to go get the recorded statements. The court then deferred Crowder’s examination until after the prosecution completed several other witnesses. Hence, the court’s minutes reflect that trial was in session for approximately four hours, with the court taking three recesses during that period.
In its preliminary instructions to the jury, the court informed it that the court would be in session from 9:00 a.m. to 1:30 p.m. with recesses in between on Mondays through Thursdays and that court was not in session on Fridays.
The court’s minutes show that questioning of witnesses began at 9:20 a.m., a recess was taken at 10:02 a.m., and questioning resumed at 10:30 a.m. Trial was again recessed at 11:36 a.m., and at 11:53 a.m., court and counsel discussed matters outside the presence of the jury. The court recessed again for four minutes and then resumed trial at 11:59 a.m. At 12:25 p.m., the People called and began the examination of Crowder. At 1:19 p.m., the court ordered the jury to return the following morning. The court then discussed a couple of notes from jurors before adjourning at 1:24 p.m.
On June 30, 2009, defense counsel again asked for a continuance. The following colloquy occurred: [MR. KELVIN]: “Yesterday I raised an issue concerning my ability to perform in this case based on health factors. I have to tell you today I feel worse than I did yesterday. It took me half an hour to walk from my car to here, which is a block and a half away. I don’t feel that Mr. Beaudreaux has an attorney in the meaningful sense of the word. My back hurts real bad and I should be either getting my MRI in line now. And having said that, I know the Court’s position. But yesterday I was working all day and I don’t know. I’m just a layperson, but to me it exacerbated the situation. I’m in bad pain and I was unable to concentrate on what Mr. Crowder was saying yesterday. He’s the most critical witness in the case. I don’t know what anybody is supposed to do about it. I know Mr. Wellman wants to finish the trial. [¶] [THE COURT]: Finishing the trial has nothing to do with it. Mr. Kelvin, yesterday you went through some of these witnesses who were probably two-minute witnesses, you spent 15 minutes on cross-examination. To the extent you had the inability to perform as a lawyer, I didn’t see it. In fact, I was amazed with the amount of time that you spent and the issues that you took up with some of these witnesses. So to that extent, you perform well and beyond anybody I’ve seen in any courtroom as it relates to cross-examining and dealing with issues with witnesses. [¶] Yesterday after everybody left you were here for another 15 minutes. You were walking around, you were doing something with the video. I understand if, yes, you may have some back pain. I had back pain this morning, as I say every day. I have sciatica. I feel the numbness in my legs. I’m here. [¶] You have done, in terms of performing as counsel, I’m just not certain what the real issues are. To the contrary, your performance is totally contrary to the state of condition that you indicated that you were in yesterday. [¶] [MR. KELVIN]: Well, Judge. [¶] [THE COURT]: And I did take several recesses yesterday, including one which was a half an hour long, which is definitely longer than ever that we take a recess in this department. [¶] [MR. KELVIN]: Judge, I’m not going to sit here and not try to do the best I can, but my best at the moment is not much. I just feel that my client’s interests are being prejudiced. I did stay yesterday after the jury left because I was trying to get my computer to display the recorded interview of Mr. Crowder. It works on the computer, but on the screen on the wall there’s a signal saying that it’s not right. I have an attorney, Mr. Andrew Kapur, who is very technically skilled, and I was going to set it up before we went on the record this morning so my computer will work. Mr. Wellman says, well, his computer is plugged in and he didn’t want to unplug his so I can plug mine in. I’m still not in a position to display the interview of Mr. Crowder, which I wanted to do. That’s a whole different issue. [¶] If the Court thinks I’m malingering or I’m just trying to make an excuse to delay the thing, that’s an assessment the Court has to make. I’m telling you, I’m in pain. I’m not able to do my job. And if the Court is ordering me to proceed, that’s what I’m going to do, but I’m just not—I should be lying down. [¶] [THE COURT]: What did you do after you left here yesterday, Mr. Kelvin? [¶] [MR. KELVIN]: I went to one other court and went home about 4:00 o’clock and I laid down until the morning. [¶] [THE COURT]: Why did you go to another court if you were in such a condition? Why didn’t you call that court or have my clerk call that court? I don’t understand that. [¶] [MR. KELVIN]: Because that court is your Judge Bean’s court and I delayed it last week and I promised her I’d be there yesterday. [¶] [THE COURT]: You mean you drove all the way down to Hayward from here yesterday? [¶] [MR. KELVIN]: Yes, I did. I felt like I’d already delayed her case one time and I don’t like to be unreliable. In fact, I met in the hallway in Hayward an attorney Mike Wohlstadter, who you know well, and he came up to me unsolicited and said, “Mr. Kelvin, you look terrible. You look like you’re in bad pain. Your eyes are sunk in your head.” This is a guy who I didn’t ask him to come up and tell me this. [¶] [THE COURT]: Mr. Kelvin, you went down to Hayward for a misdemeanor, and you could have had this Court call down there? [¶] [MR. KELVIN]: You know, Judge, those are the facts. I’m not going to sit here and lie about them. I’ve been in my bed since 4:00 o’clock yesterday afternoon. And I got up this morning and I felt worse than I did yesterday. That’s just—those are the facts as I’m aware of them. If the Court’s position is I have to proceed with the trial, then that’s what I’m going to do. I’m not able to do the things that I need to be doing. I can’t concentrate. All I can think about is how bad my back hurts and that’s the situation....” The court then recessed for a minute and when trial resumed, asked defense counsel if he had taken any medication. Defense counsel responded that he was taking Vicodin and had last taken one at 5:00 a.m. He also informed the court that he had taken one at 4:00 p.m. and at 8:00 p.m. the previous day. Counsel reiterated that he could not do what was required of him, that his back hurt “pretty bad” and described his pain level as worse than the “seven or eight” it had been on Saturday. The court then continued the matter to the following day. But before the court could adjourn for the day, defense counsel requested some time to discuss jury instructions and to work with a computer technician to set up a video. The court became exasperated with counsel, telling him, “I can’t believe I’m having this discussion where you say you have to be home, you need to be resting and you’re talking about doing this computer. I can’t believe I’m having this discussion. [¶] Go ahead, Mr. Kelvin. I expect you here tomorrow morning to be prepared.”
The following day, July 1, 2009, defense counsel presented the court with a note from Highland, stating he was to be off work until July 6. Counsel stated, “I understand that that can’t happen, but just want to say for the record I feel today like I felt yesterday, which is not good. I would ask that this be placed in the file. It’s a letter from Alameda County Medical Center regarding the state of my health.” The court asked counsel about his state of mind. Defense counsel responded, “It’s pretty much like it was yesterday. I’m in a lot of pain, but I don’t want all these people sitting here and waiting for me. I feel bad about it. So I’ll proceed.” The following discussion ensued: “[THE COURT]: “There is a threshold of pain. As I said to you, I’m in pain today, and I’ve been that way for six years. That’s just something I deal with. And sometimes it’s worse than on other days. That’s just what I deal with. I mean, to that extent that’s what I’m asking you. Yes, you are in pain? [¶] [MR. KELVIN]: Yes. And I understand that we have to make sacrifices. All I can say is as long as I’m lying down in a bed, you know, taking medication with a heating pad under me, I’m fine. But when I get up and start walking around, it’s fairly painful. So getting in the courtroom today was a process. But hopefully as long as I’m—I’m planted in a chair and I’m going to go ahead. [¶] [THE COURT]: Let’s keep you in the chair. I don’t have any reason for you to stand up.” Defense counsel indicated that Andrew Kapur, an attorney that he works with, would be assisting him to play some recorded statements of Crowder, and the prosecutor also expressed his willingness to assist defense counsel with exhibits.
Trial then proceeded at 9:08 a.m. with the completion of the direct and cross-examination of Crowder, and the examination of Michelle Dilbeck, an expert in the field of firearms examination, Ann Keeler, an expert in the field of gunshot residue, and police officer Todd Sabins. The court’s minutes reflect that the court took three recesses ranging in time from 16 minutes to 23 minutes, with the court adjourning for the day at 1:29 p.m.
Prior to adjourning, the court remarked, “I want to say for the record, having observed Mr. Kelvin today, he’s had an incredibly extensive cross-examination of each of the witnesses. He has performed as he generally does. He has moved slowly, but he’s been up and down, and he’s approached the witness, he’s looked at exhibits, and I just want to make sure the record is clear as it relates to that activity and the fact that his—it doesn’t appear that anything suffered in terms of his abilities here, because he’s clearly the David Kelvin that I know in the courthouse.” Defense counsel responded that he was in some pain and distress but was trying to do the best he could.
Trial resumed on July 2, 2009, without any request by defense counsel for a continuance or accommodation for his back problem. The prosecution and defense both rested their cases.
On Monday, July 6, 2009, trial resumed with the court commencing jury instructions. The court declared a brief recess almost immediately as one of the jurors felt ill and needed a five minute break. Defense counsel informed the court that he was not feeling well and then proceeded to discuss a jury instruction issue. In the midst of that discussion, defense counsel implied that he would have given the court case authorities earlier but “I can’t even walk. I can’t get out of my car. It took me a half an hour to walk two blocks, and I’m doing the best I can. I apologize.” In response, the court remarked that he appreciated that defense counsel was making his record. The parties proceeded to discuss jury instructions, followed by the court’s instructions to the jury, and closing arguments and the court’s final instructions to the jury. The jury retired for deliberations. In noting his availability for the following day, defense counsel noted that he had a motion in Department 115 and a trial in Department 130.
b. Analysis
The trial court has broad discretion in determining whether good cause exists to grant a continuance of the trial. (§ 1050, subd. (e).) “ ‘The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 972, quoting People v. Laursen (1972) 8 Cal.3d 192, 204.) “In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction.” (People v. Barnett (1998) 17 Cal.4th 1044, 1126.) Defendant bears the burden of demonstrating that the court’s denial of a continuance was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
While we do not condone the trial court’s interjection of its own back pain threshold into its analysis of defense counsel’s pain issue, our review of the record convinces us that the court did not abuse its discretion. First, it is unclear from the record whether defense counsel’s emergency room doctor ordered that he not return to work for five days. The doctor’s note that counsel provided to the court indicated simply that he was restricted from work that required repetitive bending. Second, although defense counsel claimed to be both in significant pain and under the influence of Vicodin, the record reflects that he nevertheless proceeded to cross-examine several prosecution witnesses and appeared to be engaged in the trial. The court took two recesses, of 17 and 28 minutes, in the four-hour-long court day, and a third recess of four minutes. Defense counsel did not indicate at any time during that court day that he was unable to proceed, and the court later remarked on counsel’s thorough cross-examination.
The note from the emergency room physician is not in the record.
When defense counsel informed the court the following day that he was still in significant pain, the court recessed for the day. The court, however, noted for the record that counsel had not left the court immediately upon adjournment the previous day but had spent another 15 minutes working with the video equipment. The court was also chagrined to learn that defense counsel had driven to another court in Hayward that afternoon rather than resting.
Although the court continued the matter for a day, it did so only after reminding defense counsel that he was not to go to other courts that day: “Mr. Kelvin, here’s what I’m telling you right now: If I’m going to continue and delay this case because you have this back pain and you say that you can go down and make an appearance at another court, I’m questioning your representation.”
Finally, when trial resumed on July 1, 2009, defense counsel, although giving the court a note from Highland Hospital stating he should be off work until July 6, and informing the court that he was still in pain, did not request a continuance but told the court that he would proceed with the trial. Again, the record reflects that counsel performed diligently in cross-examining witnesses and engaging in discussions with the prosecutor and the court. The record further reflects that counsel complained a final time about pain on July 6, 2009 during a discussion on jury instructions but notably did not request a continuance but rather proceeded to argue about jury instructions. In addition, when the jury retired for deliberations, counsel informed the court of his scheduled appearances in other court rooms for the following day, one of which included a trial.
The letter is not part of the record.
In sum, the record demonstrates that defense counsel, despite complaints of back pain and sporadic requests for continuances, proceeded to provide defendant with effective representation. Even if we were to conclude that the court abused its discretion in denying counsel’s initial request for a continuance, there is simply no showing that defendant was prejudiced.
People v. Crovedi (1966) 65 Cal.2d 199, 201, cited by defendant, is inapposite. That case involved the issue of defendant’s right to counsel of choice. There, the defendant’s attorney suffered a heart attack after the first four days of trial. The court continued the matter for two weeks and then denied defendant’s request for a continuance even though his attorney’s law partner presented medical documentation that defendant’s counsel would not be able to resume the trial until seven weeks later. (Id. at pp. 201-202.) Instead, over the defendant’s and the law partner’s objections, the court appointed the law partner to represent defendant, allowing him only one week to prepare for trial. (Id. at p. 203.) Our Supreme Court held that the trial court’s refusal to permit the defendant to be represented by his counsel of choice constituted a denial of due process. (Id. at p. 208.)
People v. Panah (2005) 35 Cal.4th 395 (Panah), cited by defendant, is also of no assistance to him. That case, like Crovedi, supra, involved an issue of choice of counsel. (Panah, supra at pp. 426-427.) While the defendant there requested a continuance to permit his secondary counsel to recover from a back injury, the court questioned the true reasons for the request, noting that defendant’s primary counsel had already informed the court that his secondary counsel was not qualified to try the case and that he was making 97 percent of the decisions in the case. (Id. at pp. 423-424.) The court ultimately removed the secondary counsel and replaced him. (Id. at p. 426.) Panah, while concluding that the court did not abuse its discretion in denying a continuance, did not involve a situation where counsel is present in court and the court has the opportunity to observe counsel’s abilities and physical appearance.
Here, by contrast, defense counsel appeared in court and although he complained of pain, he continued to afford defendant effective representation. “[W]here defense counsel present in court requests a continuance on the grounds of illness, a factual issue is presented for the trial court as to whether the attorney’s condition precludes him from effectively proceeding with his defense [citations].” (People v. Augustine (1968) 265 Cal.App.2d 317, 329.) The trial court, based on its discussions with and observation of defense counsel in court, determined that counsel was not incapacitated and that he was fully able to proceed with the trial. Our review of the record substantiates the trial court’s observations. Not only did defense counsel provide defendant with adequate representation, he did so in the face of overwhelming evidence of Esho’s and Crowder’s eyewitness identifications of defendant as the shooter.
2. Effective Assistance of Counsel
Defendant contends that the trial court erred in denying his motion for a new trial in which he argued that he was denied the effective assistance of counsel.
In order to prove a claim of inadequate representation, a defendant must show that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425.) Effective and competent representation requires “counsel’s ‘diligence and active participation in the full and effective preparation of his client’s case.’ [Citation.]” (Id. at pp. 424-425.) We will reverse a conviction on the ground of inadequate counsel only if the defendant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien, supra, 4 Cal.4th at p. 980.) The defendant must also establish prejudice from counsel’s acts or omissions. Ordinarily prejudice must be affirmatively proved; the defendant must establish the reasonable probability that had counsel not been incompetent, the proceeding would have had a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
In his motion for a new trial, defendant alleged that his counsel’s back pain prevented him from providing effective representation. In particular, defense counsel’s declaration submitted in support of the motion averred that due to his back pain, his “contact visits with defendant [] during trial were infrequent and brief” and that he was unable to devote any time outside of court to meet with him and prepare him to testify. He further declared that a recent MRI showed that he had bulging discs at L4-L5 and L5-S1, impinging on a nerve and that he was awaiting corrective surgery.
The trial court properly denied the motion. “[T]he trial court is in the best position to make an initial determination, and intelligently evaluate whether counsel’s acts or omissions were those of a reasonably competent attorney.” (People v. Jones (1981) 123 Cal.App.3d 83, 89.) This was not defense counsel’s first case before the trial court; the court was familiar with defense counsel, and acknowledged that he tried this case in accordance with his usual standards, noting that his “performance [was] totally contrary to the state of condition that you indicated that you were in....” The court further commented that defense counsel “performed as he generally does. He has moved slowly, but he’s been up and down, and he’s approached the witness, he’s looked at exhibits... and the fact that his—it doesn’t appear that anything suffered in terms of his abilities here, because he’s clearly the David Kelvin that I know in the courthouse.”
The record reflects that defense counsel informed the court that he did not intend to call defendant to testify. At no point did defense counsel subsequently tell the court that he had changed his mind on that issue or that he needed additional time to prepare defendant to testify. The defense theory was that Crowder was lying and defense counsel sought both in his cross-examination and in closing argument to discredit Crowder and the other prosecution witnesses. We cannot second guess defense counsel’s strategy. While in hindsight he claimed that defendant would have testified, defendant’s testimony would have been problematic as he had made pretrial incriminatory statements and had suffered a prior conviction involving gun use. Moreover, our review of the record persuades us that defendant was not prejudiced by his counsel’s decision. In view of the eyewitness testimony that defendant was the shooter, it is not reasonably probable that defendant would have received a more favorable verdict. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Defendant also argues that the court should have granted a new trial based on newly discovered evidence. In support of his motion for a new trial, defendant submitted the declarations of two friends, Elisha Nelson and Amber Hill. Nelson declared that she was a friend of Ronald Benjamin, who was now deceased. She stated that Benjamin told her at her birthday party on September 4, 2006 that he had shot someone earlier in the day. He asked her to keep the information to herself but when she heard of defendant’s conviction, she got in contact with defendant’s counsel. Hill, in turn, averred that she was friends with both defendant and Benjamin and that she was at the scene of the shooting. She was with defendant when the fight broke out between two men outside Blakes. She and defendant followed a crowd of people around the corner. The smaller of the two men fighting challenged people in the crowd, including Benjamin, and swore at them. She heard a gunshot and declared that defendant did not have a weapon in his hand and did not fire any shot, but that the sound of the gun came from where Benjamin was standing.
“A defendant on a motion for a new trial based on newly discovered evidence must show... that the evidence is in fact newly discovered; that it is not merely cumulative to other evidence bearing on the factual issue; that it must be such as to render a different result probable on a retrial; and that the moving party could not, with reasonable diligence, have discovered and produced the evidence at trial.” (People v. McDaniel (1976) 16 Cal.3d 156, 178.)
Here, defendant failed to show that the evidence was newly discovered or that it could not have been discovered and presented at trial. As the trial court remarked prior to denying the motion: “I find it fascinating that Ms. Nelson visited Mr. Beaudreaux 21 times in the Santa Rita Jail. The 21 times in all this interaction, there’s never been any information that the lawyers derive from her or Mr. Beaudreaux that she was a witness and could corroborate certain facts and circumstances in this case.... I don’t know if it’s coincidental that Mr. Benjamin, who is dead, is said to have said that before he died sometime that he shot somebody off around the corner from Telegraph. If it’s coincidental or not, I don’t know.” Indeed, the record reflects that Nelson visited defendant 21 times between May 16, 2008 and March 22, 2009, well before trial commenced. On these facts, her declaration that she acceded to Benjamin’s request to keep his information confidential, and felt compelled to reveal it only after hearing of defendant’s conviction lacks credibility. In addition, as the court noted, Nelson’s declaration does not state that Benjamin shot Drummond, only that he shot “someone.” Finally, defendant failed to show that Hill’s declaration was newly discovered. Her declaration was also questionable. As an eyewitness at the scene of the crime, and a friend of defendant’s, the timing of her statement alone was cause for suspicion. Moreover, she did not aver that Benjamin was the shooter, just that the sound of the gunshot came from where he was standing.
The trial court justifiably denied the new trial motion based on this evidence, and based on the absence of any showing that this evidence could not have been discovered and produced at trial.
By separate order today, we deny defendant’s petition for a writ of habeas corpus.
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.