Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF182700, Gerald F. Sevier, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
INTRODUCTION
On November 30, 2007, appellant, Manuel Hernandez, Jr., was charged in an information with three counts of attempted murder (Pen. Code, § 187, subd. (a), counts 1, 2, 3), shooting at an occupied vehicle (§ 246, count 4), and three counts of assault with a firearm (§ 245, subd. (a)(2), counts 5, 6, 7). The information alleged with regard to counts 1, 2, and 3 that appellant personally used a firearm (§ 12022.53, subds. (b), (c), (e)(1)). Counts 5, 6, and 7 alleged appellant personally used a firearm (§ 12022.5). The information alleged each offense was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).
All further references are to the Penal Code unless otherwise indicated.
On the first day of trial, the court denied appellant’s motion to dismiss his retained counsel. On October 3, 2008, the jury acquitted appellant of counts 1, 2, and 3. It convicted him of counts 4, 5, 6, and 7. The jury found appellant personally used a gun within the meaning of section 12022.5 and committed his offenses for the benefit of a criminal street gang.
On November 5, 2008, the trial court sentenced appellant to an indeterminate term of 15 years to life on count 4. The court sentenced appellant to a consecutive term on count 5 of three years, plus four years for the firearm enhancement and 10 years for the gang enhancement. Appellant’s total determinate sentence is 17 years. The court sentenced appellant on counts 6 and 7 to separate, concurrent 17-year sentences on each count.
Appellant contends the trial court erred by denying his motion for a continuance to obtain new retained counsel. Appellant also contends, and respondent concedes, the court erred in failing to apply section 654 to count 7.
FACTS
On April 23, 2007, about 5:30 p.m., Romaldo Mata, Alejandro Alvarez, and Andres Garcia were at a fast-food restaurant in Visalia. A young man Mata recognized, who was 15 or 16 years old, crossed the parking lot while Garcia was outside the restaurant and tried to put a black hood over his head, but the hood fell off. The young man turned around and looked at Garcia two or three times. Garcia went back into the restaurant. The young man “took off.”
The young man returned with seven or eight other males. The oldest was 18 years old. They posted three young men at each door to the restaurant. One of the doors was locked. At the door closest to the drive-through, the young men opened the door and looked into the restaurant. Mata made eye contact with some of them and they left the front of the restaurant.
Alejandro Alvarez testified the young men were either in junior high school or high school.
The young men went toward the parking lot of a grocery store. Mata recognized some of the young men. Alvarez, Garcia, and Mata entered Alvarez’s Dodge Durango SUV and drove away. Alvarez drove, Mata sat in the front passenger seat, and Garcia sat in the back seat. The young men were standing in the parking lot. Two people were talking on their cell phones.
Appellant drove to the fast-food restaurant with his friend, Jose Garcia, in a Dodge Ram pickup truck. When appellant arrived, the young men in the grocery store parking lot were pointing toward Alvarez’s SUV. One of the youths tried to get into appellant’s pickup truck. Alvarez exited the parking lot and stopped at a stop sign on Chinowth Street.
Appellant was one car behind Alvarez’s SUV. Appellant, who was driving, followed the SUV. Garcia sat in the passenger seat. When Alvarez came to Tulare Avenue, he made a right turn and then another right turn when he reached Linwood Street. Appellant continued to follow the SUV, running a red light at the intersection of Linwood and Noble.
Alvarez drove across a freeway overpass and stopped for a red light at the intersection of Linwood and Mineral King Avenue. Appellant was now directly behind the SUV. Appellant flashed the sign for the Norteño gang with one hand and extended the middle finger of his other hand. When the light turned green, Alvarez turned left onto Mineral King. Appellant followed the SUV, then accelerated quickly to keep up with Alvarez, who was also driving fast. Appellant caught up with the SUV, driving along the right side of it.
Mata heard gunshots and stuck his head out the window to V. who was firing the gun. Mata saw appellant holding a short-barreled revolver. Appellant pointed the gun toward Mata and shot at him. Mata thought appellant fired three or four shots. A bullet hit the windshield of the SUV in the front of where Mata was sitting. Another bullet struck the right taillight. Alvarez slammed on the brakes and then drove away.
Request to Discharge Retained Counsel
Appellant contends the trial court erred in denying his motion to dismiss his retained counsel and that the trial court violated his state and federal rights to due process, a fair trial, and to have counsel of his choice. We disagree.
Motion to Dismiss Retained Counsel
Appellant’s trial commenced on September 22, 2008. Appellant complained to the trial court about a plea bargain that did not go forth and said he wanted to be represented the way he should be represented. The court explained a change of counsel would require a continuance and asked appellant if he wanted to represent himself. Appellant replied he did not want to represent himself, but sought a new lawyer.
Appellant told the court he wanted to fire his attorney, Mr. Stephen Girardot. The court told appellant that Girardot was at least his second attorney. Girardot explained he was ready to go to trial and had finished a complete investigation of the case. Appellant complained he had not looked at his paperwork the entire time of his incarceration and had not read witness statements to see if there was anything appellant could tell Girardot. Appellant conceded he believed Girardot “has done everything that I asked him that he told me he has done.”
Appellant said he did not feel he was being represented the way he should. Girardot told the court he had talked to appellant about his case and discussed generally what would happen at trial. Girardot had not discussed trial strategy with appellant. Because there had been prior attempts to reach a plea agreement, Girardot evaluated appellant’s case for him. This discussion included prosecution and defense evidence.
Appellant said he was “just asking, you know, for just a new lawyer who I think that would represent me a little better ….” Appellant told the court there were witnesses who had not been subpoenaed. Girardot said that he had made six attempts to contact the young hooded man who first encountered Garcia in the fast-food parking lot. Girardot told the court he attempted to contact a prosecution witness without success. Girardot explained: “[e]very witness that our investigation has brought forward as being [a] potential defense witness [did] not pan out, period. There has been no one to talk to, no one to interview, no one to discuss the case with.”
When asked by the trial court whether he had followed up with all witnesses developed by the prosecutor’s investigation, Girardot replied affirmatively. Appellant stated that he was not trying to play games with the court. The court stated it considered the applicable legal standards, citing People v. Lara (2001) 86 Cal.App.4th 139 (Lara). The court noted that, based on the representations of appellant and Girardot, appellant would be adequately represented at trial. The court expressed concern that appellant would have to proceed without adequate representation if it relieved Girardot. The court noted Girardot is a very experienced lawyer.
The court further found appellant’s request to be dilatory. The court explained that appellant had opportunities to bring up his concerns before but waited until the first day of trial. Furthermore, Girardot was appellant’s second retained counsel. The court denied appellant’s request to relieve his counsel.
Appellant’s original retained counsel, Silvia Hanna, was substituted with Victor Perez on July 2, 2007. Victor Perez was substituted with Stephen Girardot on February 15, 2008. Girardot was actually appellant’s third attorney in this action.
Analysis
Due process of law comprises a right to appear and defend with retained counsel of one’s own choice. (People v. Courts (1985) 37 Cal.3d 784, 790-791.) A nonindigent defendant’s right to discharge his or her retained counsel is not absolute. A court can deny such a motion if discharge of counsel will result in significant prejudice to the defendant, or if it is not timely and will result in disruption to the orderly processes of justice. The Sixth Amendment right to counsel of choice is limited by the countervailing state interest in proceeding to prosecutions in an orderly and expeditious basis. Courts may take into account practical difficulties of assembling the witnesses, lawyers, and jurors at the same place and time. (People v. Ortiz (1990) 51 Cal.3d 975, 983-984; Lara, supra, 86 Cal.App.4th at p. 153.)
In People v. Keshishian (2008) 162 Cal.App.4th 425, 429 (Keshishian), the defendant waited until the day of trial to request the dismissal of his trial attorneys. His only stated reason for doing so was that he had lost confidence in them. Witnesses had already been subpoenaed and scheduled. The trial court applied the correct legal standard and rejected the defendant’s motion. The Keshishian court held the trial court did not err in denying the defendant’s last minute request to replace his counsel. (Ibid.)
Appellant’s request, as with the defendant in Keshishian, occurred on the first day of trial. Appellant’s complaint of his counsel was vague. Witnesses had already been subpoenaed and scheduled. Counsel had prepared for trial. The trial court’s finding that appellant’s request to replace his counsel was dilatory was supported by the fact that appellant had twice before substituted counsel. A change of counsel would have necessarily caused a delay in the proceedings. (See People v. Turner (1992) 7 Cal.App.4th 913, 919.)
The defendant has the burden of demonstrating an abuse of discretion. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) (A defendant’s motion, made on the day set for trial, was untimely. (Ibid.)) Appellant has failed to carry his burden of demonstrating the court abused its discretion in denying his motion to replace his counsel, which would have also required a continuance of his case on the first day of trial. We reject appellant’s claim.
Section 654 Stay
Appellant contends, and respondent concedes, that the trial court violated section 654 when it sentenced appellant to concurrent sentences on both counts 6 and 7. The parties concur that one count must be stayed pursuant to section 654.
Under the multiple victim exception to section 654, even when the defendant entertains a single objective during an indivisible course of conduct, he or she may be convicted and punished for each crime of violence committed against a different victim. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781 (Garcia).) In Garcia, the defendant was convicted, among other offenses, of shooting at an occupied vehicle (count 5) assault with a firearm on Verdin (count 6), and three more counts of assault with a firearm for three other occupants of the car (counts 7, 8 and 9). (Id. at p. 1764.) The court sentenced Garcia consecutively on counts 5 and 6, but stayed Garcia’s sentences on counts 7, 8 and 9. (Id. at pp. 1764-1765.) Garcia challenged what he considered to be multiple punishment on counts 5 and 6.
The Garcia court analyzed several cases involving shooting at an occupied vehicle with accompanying assault with a firearm convictions. (Garcia, supra, 32 Cal.App.4th at pp. 1781-1784.)
In People v. Kane (1985) 165 Cal.App.3d 480, 488, the court concluded the trial court erred in imposing a concurrent sentence for both shooting at an occupied vehicle and assault with a firearm where there was a single victim. In People v. Masters (1987) 195 Cal.App.3d 1124, 1128-1130, the court properly sentenced the defendant to shooting at an occupied vehicle and assault with a firearm where there were two occupants of a vehicle the defendant shot at and one victim was wounded during the shooting.
Garcia reasoned:
“The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent. Where one person is the victim of both a shooting at an occupied motor vehicle and a simultaneous assault, the trial court can impose an unstayed sentence for one or the other, but not for both. (People v. Masters, supra, 195 Cal.App.3d at p. 1130; People v. Kane, supra, 165 Cal.App.3d at p. 488.) We believe this is equally true where the same persons are the victims of a shooting at an occupied motor vehicle and of simultaneous assaults: the trial court can impose an unstayed sentence for the shooting, based on any given victim, or for the assault on that victim, but not for both.” (Garcia, supra, 32 Cal.App.4th at p. 1784.)
Because the trial court in Garcia had stayed the assault with a firearm sentences as to three of the occupants of the vehicle, it could sentence the defendant for shooting at an occupied vehicle and assault with a firearm on Verdin because there were remaining other victims for whom the defendant had not been sentenced. (Garcia, supra, 32 Cal.App.4th at pp. 1784-1785.)
Here, as the parties point out, there were three victims in the Durango SUV. The trial court could impose sentence for shooting at an occupied vehicle and for assault with a firearm as to two of the victims, but not all three victims. Accordingly, we will remand for the trial court to stay its concurrent sentence on count 7.
DISPOSITION
The case is remanded for the trial court to vacate and stay the concurrent sentence it imposed on count 7, to prepare an amended abstract of judgment reflecting the change, and to forward it to the appropriate authorities. In all other respects, the judgment is affirmed.