Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA084225, Robert J. Higa, Judge.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel Jr. and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
A jury found Anthony Castellanos guilty of one count each of second degree murder, assault with a firearm, and recruiting criminal street gang activity. Personal use allegations were also found true. The trial court sentenced Castellanos to a term of 25 years to life in state prison. He appeals, claiming error in the trial court’s denial of his motion to discharge his retained counsel and its denial of his Wheeler motion as well as insufficiency of the evidence, instructional and cumulative error. We affirm.
People v. Wheeler (1978) 22 Cal.3d 258.
FACTUAL AND PROCEDURAL SYNOPSIS
On May 21, 2004, 11-year-old Joey Holguin and his 12-year-old brother Nicky went to Castellanos’s apartment with French fries to make chili fries. The Holguin family and Castellanos—a King Kobra gang member known as “Serio”—lived in the same Bell Gardens apartment building. The boys were not supposed to be in Castellanos’s apartment because their father (Nick Holguin, Sr.) knew Castellanos was a gang member. At that time, Castellanos had only been out of jail a few weeks and had tried to recruit both Nicky and another brother (Michael) for the King Kobras, but both had refused and Castellanos had called them derogatory names. Joey was afraid of him.
Castellanos was days away from his 18th birthday.
The week before, Michael saw Castellanos pointing a gun at the Fostoria Boys, another gang in the neighborhood.
Nicky sat on the couch, but Joey stayed in the corner. After Castellanos started cooking the French fries, he came out of the kitchen. He locked both the front screen door and wooden door, looked out the peephole and then locked the back door. Then he walked over, pulled a gun from his waistband and pointed it at Joey with a “mean” expression. Scared and thinking he was going to get shot, Joey ducked, dropped his head and tried to cover himself with his hands.
Castellanos had a rag wrapped around the gun handle.
Castellanos then turned toward Nicky and pointed the gun at him. Castellanos still had a “mean” expression, and Nicky looked scared. Castellanos clicked the hammer back with his thumb and with his finger on the trigger said, “What do you think about this?” He waited about three seconds and then fired the gun. Nicky’s head went back and he was bleeding from the top of his eyebrow. Castellanos said, “Oh, shit” and ran. Castellanos’s sister ran into the room. Joey told her what had happened and ran to get his father. A family friend (Ricardo Arroyo) heard the shot and saw Castellanos running away. Nick Sr., Michael and Arroyo found Nicky sitting on Castellanos’s couch, covered in blood. Nicky died from the gunshot wound to his head.
After the shooting, Castellanos went to the residence of Juan Pleitez, a former King Kobras gang member. Castellanos told Pleitez he had “fucked up” and “didn’t know what to do.” Pleitez saw the revolver in Castellanos’s pants. Pleitez didn’t want to get in trouble and told Castellanos to leave. Castellanos then went to Robert Nunez’s house. He said, “I shot Nick in the head,” and complained he was “going to jail for the rest of his life.” Nunez told Castellanos to leave and he did, dropping the gun outside.
Pleitez had seen Castellanos (a King Kobra between two and four years) with a gun before. A week before the shooting, Castellanos brought the same revolver to Pleitez to hold because he said the police would be back for it. Although the gun was unloaded, the hammer was in the cocked position.
The next day, Castellanos called Pleitez from “Puppet’s” house and told Pleitez to get the gun from where Castellanos had left it behind a dumpster. Pleitez retrieved the gun, brought it home and unloaded it, noting one round had been fired. He put the empty shell casing in a drawer in his house. Pleitez then called his brother Felix and told him what had happened. Pleitez and his brother wrapped the gun in a shirt, and Felix took it to his house, but police later seized it.
On July 26, law enforcement authorities in Quinette County, Georgia, contacted Los Angeles Sheriff’s Detective Phillip Martinez and advised that Castellanos was in custody there. Martinez took over custody and returned Castellanos to California.
Castellanos was charged with murder, assault with a firearm and recruiting criminal street gang activity, with firearm and gang allegations as to the first two counts.
At trial, the People presented evidence of the facts summarized above along with gang expert testimony.
Castellanos testified in his own defense. He denied ever being a King Kobras member but said he did “hang around” gang members. He also acknowledged that the revolver was his and that he sometimes carried it but said Nicky had brought it to his house, took it out of his waistband and asked Castellanos to lower the hammer. Castellanos said he “grabbed the gun, and . . . tried to bring the hammer down by pushing the trigger, but it just went off.”
In addition, private investigator Steven Strong (a former police officer) opined that someone who fired a weapon and said, “Oh, shit,” would not have been acting in furtherance of a criminal street gang.
Castellanos’s mother (Martha Villaseca) testified Castellanos was not a gang member, she never saw him with a gun and he had no weapons in her apartment. His sister Stephanie testified she and Nicky had gone to “Juan’s” house on the day of the shooting. After “Juan” gave Nicky a gun, he put it in his pants, and Stephanie told him to “walk carefully because it might go off.”
Castellanos’s 13- or 14-year-old sister Korina testified she was in her mother’s room at the time of the shooting. Earlier, she heard her brother, Nicky and Joey talking and laughing downstairs. She did not hear anyone arguing before hearing a “bang.”
In rebuttal, Bell Gardens police officer Rene Ruiz testified Korina Castellanos told him that, in the prior few months, she had seen her brother with three types of guns including the revolver used in the shooting. She said her brother was a King Kobra gang member known as Serio.
Castellanos’s sister Stephanie had also told Detective Martinez about her brother’s King Kobra membership and said she had seen Castellanos with at least two other guns. In addition, she told him Castellanos had shot someone in the hand on Fostoria Street.
Detective Martinez spoke with Castellanos’s mother on about five different occasions. She told him her son was a King Kobras gang member and a “loose cannon.”
Detective Martinez further testified that Castellanos told him in Georgia that he had seen the revolver twice before the shooting. On the day of the shooting, Castellanos said, he “got mad” when Nicky was holding it and told him “to stop playing with [it].” He said the gun went off as he tried to take it from Nicky. Everyone had been standing, Castellanos said, but when Nicky got shot, he “fell into the sofa.”
The jury convicted Castellanos on all counts and found true the personal use allegations. The trial court sentenced him to a state prison term of 25 years to life for the second degree murder. On the assault with a firearm count, the court sentenced Castellanos to an additional concurrent term of eight years (the midterm of four years plus an additional four years for the firearm use allegation). On the street gang recruitment count, he was sentenced to an additional concurrent term of two years (the midterm). Castellanos appeals.
DISCUSSION
I. The Trial Court Did Not Err in Denying Castellanos’s Request to Discharge his Retained Counsel.
When Castellanos was arraigned on April 11, 2005, he was represented by E.J. Montanez, private counsel. On August 22, Castellanos advised the court that he wished to discharge Montanez but then withdrew his request. The trial court granted Castellanos’s motion for a continuance. Further defense requests for continuance were granted on November 28, 2005, and January 9, 2006. On January 9, trial was trailed to the following week on another defense request. On January 17, trial was again continued by defense request to March 1. On that date, the court found good cause to continue the trial to March 9. The trial court then granted another continuance to March 23 for further preparation. On March 23, Castellanos failed to appear “with sufficient excuse[] (miss-out)” so trial was trailed to March 27 and 60 jurors were ordered for this date. On March 27, the People made “one last offer to [Castellanos]” which he rejected and the People then withdrew. On a finding of good cause, trial was trailed to March 28 with the 60 jurors ordered for that date.
On March 28, defense counsel stated for the record that the prosecutor had extended Castellanos an offer of 24 years for voluntary manslaughter and other charges. Castellanos had spoken with his parents and the court. Despite their (and defense counsel’s) recommendation, Castellanos had rejected the offer and the defense was ready to proceed. Castellanos then asked to address the court: “I want to fire my attorney, sir, because he told me right now that he’s going to make sure I get life, man. . . . [¶] Yesterday he lied to my family. He said it was 16. My mom asked me to take it. When I looked at the paper—told me, ‘Sign it. Sign it.’ When I looked at the paper, it said 24 years. [¶] He’s been lying to us. He never told me nothing but, ‘You are going to get life. If you don’t take the deal tomorrow, I’ll make sure there is [sic] no mistakes.’” Defense counsel began, “Your Honor, I never—” but the trial court interrupted and asked the prosecutor to leave.
After the prosecutor left, the trial court stated, “So this is a [People v.] Marsden [(1970) 2 Cal.3d 118] motion, then.” Defense counsel responded, “I’m privately retained, Your Honor. [¶] I have never told Mr. Castellanos that I would make sure that he gets life, but I have told him that, in all likelihood, he will be convicted of at least a few charges in the information with the . . . gang enhancement, which will make that particular charge life.
“Even if he is only convicted of assault with a deadly weapon on the No. 2 victim, with the gun allegation and the gang allegation, that will give him the possibility of a life sentence, even . . . if he’s actually found not guilty of the murder.
“I have strongly suggested to Mr. Castellanos to take the offer, the 24-year offer at 85 percent. That will not be the entire 24 years. He will do 19 to 20 years minus the credit that he has earned so far. That’s much better than spending 50 years to life.”
As Castellanos observes, defense counsel apparently misspoke in describing Castellanos’s potential sentence on the second count alone but accurately emphasized the considerable disparity between Castellanos’s exposure on the charged counts and the offer.
Castellanos then said: “This guy is not going to help me, man. I know it, man. I feel it ever since I hired him. [¶] He hasn’t done nothing for me. He hasn’t filed the motions. [¶] I asked him for my paper. He said, ‘You don’t need it.’ Never brought it to me. [¶] Never went to see me ever in two years.. . . . I called him, never accepted my calls, nothing, man, but, ‘You’re going to get life. I’ll make sure you get life.’. . . . [¶] He has no interest in my case, man. I fear, man—I fear for my life. I need another lawyer, man. . . . I don’t want to get life.”
The trial court stated: “I’ve heard your reason. [¶] I’ll tell you one thing. He’s done something for you that a lot of lawyers are unable to do in this courthouse, [which] is to get you a deal like what he got for you, and that’s something I know, that he got that deal for you, and I can’t think of any other lawyers getting a deal like that on facts such as these, so . . . I’ve heard you out. [¶] The Marsden motion is denied based upon the facts that I’ve heard, and, also, it’s untimely. We’ve got 60 jurors . . . waiting to hear this trial, so that motion is denied on both of those grounds, factually and [as] untimely.”
Although defense counsel did clarify that he was privately retained, the trial court inaccurately characterized the motion as a “Marsden motion.” Nevertheless, Castellanos has failed to demonstrate error in the trial court’s denial of his motion to discharge his private counsel. A defendant may discharge his retained counsel at any time with or without cause, but this right is not absolute. (People v. Ortiz (1990) 51 Cal.3d 975, 983-984; People v. Lara (2001) 86 Cal.App.4th 139, 155.) Here, defense counsel had been appearing with Castellanos throughout the proceedings and had obtained several continuances for his benefit. Castellanos previously sought to discharge his counsel once before (but withdrew that request) and said he was dissatisfied with counsel all along but waited until 60 prospective jurors were waiting in the hallway and trial was set to proceed before seeking to discharge his counsel—for the second time. On this record, Castellanos has failed to demonstrate error in the trial court’s conclusion that Castellanos’s motion was untimely. (See People v. Lau (1986) 177 Cal.App.3d 473, 479.)
II. Castellanos Has Failed to Demonstrate Error in the Trial Court’s Denial of his Wheeler Motion.
During jury selection, defense counsel made a “Wheeler motion,” contending that the prosecutor had exercised his peremptory challenges to exclude “mainly people of Hispanic descent.” According to defense counsel, four of six jurors excused were Hispanic. The prosecutor noted that the trial court needed to find a prima facie showing, and the court said, “Well, there are four Hispanics excused.” The prosecutor then noted that the last juror excused (No. 5816) had friends in gangs, a fact the court acknowledged as well.
More precisely, the prospective jury stated that he had both family and friends in gangs.
The prosecutor then asked, “What other individuals?” Asked to address prospective juror No. 4968, he indicated that he thought she was a “female white” but, in any event, said because he would have a child testifying, he wanted jurors to understand children, so he had “kicked a lot of jurors who don’t have children.”
It appears the prosecutor may have confused his notes regarding Juror No. 4968 with those for No. 3938.
Turning to No. 3693, defense counsel himself clarified for the prosecutor: “This person had trouble following directions in the beginning, and he didn’t appear to be paying attention when I was asking questions and stuff. This was the person that was up on—” and the court finished for him: “On top.” The prosecutor then recalled this juror as “kind of sitting there, and that’s why I had to ask him specifically, ‘Are you shaking your head “yes” or “no”?’” He said the fact this man did not appear to be following directions was his main reason for excusing this prospective juror—a reason the defense counsel himself had already validated.
When the prosecutor asked, “What’s the next one? Is there another one?” Defense counsel responded, “I think juror no. 12. We’ve already discussed that. That’s it.” In fact, two prospective jurors had been excused from this seat and challenged by the defense. The one preceding the defense motion (No. 5816) had been the juror reporting both family and friends in gangs. The juror in seat 12 prior to that (No. 6963) had also reported having a brother who had been a “gang member for a long time” and who then worked with gang members in jails.
The trial court denied the motion. The trial court’s determination is entitled to considerable deference because of the court’s knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques and judicial experience. (People v. Trevino (1997) 55 Cal.App.4th 396, 402.) On this record, Castellanos has failed to demonstrate error in the trial court’s ruling.
The trial court later noted: “Just an observation, since we did have a Wheeler motion. It appears to the court that of the twelve jurors, seven are Hispanics, there are four Caucasians, and one Asian. [¶] If that person is not . . . Asian, he is probably Hispanic. . . .” (See People v. Snow (1987) 44 Cal.3d 216, 225 [the fact a jury includes members of a challenged group is not a conclusive factor, but may be an indication of good faith].)
III. Castellanos’s Second Degree Murder Conviction Is Supported by Substantial Evidence.
Castellanos’s claim that there is insufficient evidence to support his conviction on the second degree murder count ignores the record, the legal definition of this offense and the jury’s findings as well as the standard of review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Notwithstanding Castellanos’s (contradictory) statements regarding the shooting, at the very least, the evidence was more than sufficient to support the conclusion that Castellanos acted with implied malice. (See People v. Huynh (2002) 99 Cal.App.4th 662, 674-675.) Accordingly, we summarily reject this claim.
IV. Castellanos Has Failed to Demonstrate Prejudicial Instructional Error.
According to Castellanos, the trial court erred by instructing the jury with (1) CALJIC Nos. 2.03 and 2.06 because these instructions “combined to unfairly single out [his] testimony for special scrutiny” and (2) CALJIC No. 8.45 “which failed to define an element of involuntary manslaughter.” Leaving to one side the issue of waiver (People v. Jenkins (2000) 22 Cal.4th 900, 1020), we disagree.
Castellanos says the trial court improperly instructed the jury that a false or misleading statement by the defendant prior to trial could be viewed as showing a consciousness of guilt (see CALJIC No. 2.03) and that consciousness of guilt could be inferred if the jury found the defendant had attempted to conceal evidence (see CALJIC No. 2.06) as these were “improper pinpoint instructions.” However, this contention has been expressly rejected by our Supreme Court. (People v. Boyette (2002) 29 Cal.4th 381, 438-439; People v. Jackson (1996) 13 Cal.4th 1164, 1224.)
As for CALJIC No. 8.45, Castellanos says the trial court erred in failing to instruct the jury that “a violation of section 245, subdivision (a)(2) of the Penal Code may also be charged as or result in a misdemeanor.” Because there was no factual support in the record for such an instruction or theory of involuntary manslaughter, the trial court did not err in failing to define assault as an unlawful act not amounting to a felony. (See People v. Benavides (2005) 35 Cal.4th 69, 102-103.)
It follows that Castellanos’s claim of cumulative error must fail as well.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, Acting P.J., ZELON, J.