Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis B. Rappe, Judge, Los Angeles County Super. Ct. No. BA295965
Law Offices of Michael R. Kilts, Michael R. Kilts and Joseph P. Farnan, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Alfredo Jaimes appeals from the judgment entered following a jury trial that resulted in his conviction of second degree murder, four counts of attempted murder and shooting at an occupied motor vehicle. He contends: (1) the evidence establishes that the killing was in self-defense as a matter of law; (2) the evidence was insufficient to support the “kill zone” theory of attempted murder; (3) the evidence was insufficient to support the gang enhancements; (4) the trial court prejudicially erred in admitting evidence of an unrelated gang shooting; (5) he was denied due process as a result of the trial court’s failure to give that portion of CALCRIM No. 3471 which discusses a “sudden and perilous counter-assault;” (6) the errors were cumulatively prejudicial; (7) he was denied his Sixth Amendment right of the United States Constitution to counsel of his choice; and (8) trial counsel was ineffective. We affirm.
FACTS
A. The Prosecution’s Case
Viewed in accordance with the usual rules of appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that in December 2005, the criminal street gang known as 38th Street was considered by the police a “very violent gang,” the primary activities of which included assaults with a deadly weapon, shooting at rival gang members, and murder. Defendant was a self-admitted member of 38th Street and had a number of tattoos that reflected his membership in that gang. Defendant’s gang claimed as its territory the 1800 block of 41st Place in Los Angeles. Until he moved to Las Vegas in 2001, defendant lived with his parents on the 1800 block of 41st Place. His parents subsequently moved down the street and their prior home became an abandoned building. Juan Palomares was known to live on the same street. Simply being present in gang territory, even living there, does not necessarily make one a member of that gang.
In December 2005, murder victim Angel Arteaga and attempted murder victims Juan Ramon Brizuela and Derek Calhoun were members of the Compton based tagging crew known as L.P.S. Two other attempted murder victims, Brian Arteaga and Antwan Sergeant, were not members of L.P.S.
Because Angel Arteaga and Brian Arteaga have the same last name, we refer to Brian by his first name to avoid confusion.
Gang expert Richard Arciniega explained that territory is very important to gangs; they use violence to protect existing territory and to acquire more. In gang culture, it is considered disrespectful to go into another gang’s territory and someone who does so is viewed as an enemy. Gangs have a general antipathy to “tagging crews” because tagging crews come into the gang’s neighborhood and write on walls the gang claims as their territory. If a gang member sees someone unfamiliar in their territory, they will likely ask the stranger, “Where are you from?” In gang culture, this phrase is understood to mean “What gang are you from?” and is seen as a challenge, which often results in violence. People who live in areas where gangs are prevalent understand this.
On the evening of December 10, 2005, Arteaga drove Brizuela, Calhoun, Brian, and Sergeant to a “flier party” on the 1800 block of East 41st Place in the territory claimed by 38th Street. Brizuela’s two sisters and their respective husbands also went to the party that night, but each couple drove in a separate car. While the others waited outside, Calhoun went into the party to ascertain whether all of them could enter using his free pass. When he reported back that they could not, they decided to go elsewhere. Everyone returned to their respective cars. In Arteaga’s car, Arteaga sat in the driver’s seat; Brizuela in the front passenger seat; Sergeant behind Arteaga; Calhoun behind Brizuela and Brian in the middle, between Sergeant and Calhoun. At trial, the four survivors gave slightly different accounts of what happened next.
1. Juan Brizuela
Arteaga started the motor as soon as they got into the car. Arteaga and Brizuela began looking for the radio faceplate. Defendant and Palomares approached the car. Defendant knocked on Brizuela’s window with an object that Brizuela believed was a gun, which defendant held in his right hand. Defendant put the hand holding the gun inside the waistband of his pants, but he continued to grasp it as he made a rolling motion with his other hand and screamed at Brizuela to roll down the window. Driving away was not an option because the cars behind and in front of Arteaga’s car were parked too close. So, while Arteaga continued looking for the radio faceplate, Brizuela opened the passenger side window. Through the open window, defendant said, “Where are you vatos from?” No one in the car answered. Brizuela was afraid there was going to be a shooting because of the tone of defendant’s voice and the fact that he was armed. Glancing quickly at Arteaga, Brizuela saw that Arteaga was still looking for the faceplate. Brizuela heard defendant say, “What are you reaching for?” When Arteaga did not respond, defendant repeated his question. Defendant then pulled the gun from his waistband, pointed it at Arteaga and Brizuela and took two steps back. As soon as defendant stepped back, Brizuela ducked down. From his position crouched on the floorboard, Brizuela could not see defendant fire, but Brizuela heard about 15 shots.
When Brizuela looked up about five minutes later, he saw that Arteaga was bleeding profusely from a wound in his forehead; Arteaga was moving but unable to speak. Brizuela saw that Arteaga had a .38-caliber revolver in his lap; Brizuela knew that Arteaga had a gun, but he did not know that Arteaga had it in the car that night; he did not see Arteaga pull his gun out before defendant started shooting; he did not see or hear Arteaga point, cock or fire the gun.
After trying unsuccessfully to move Arteaga, Brizuela grabbed Arteaga’s gun to defend himself if necessary, got out of the car and tried to run, but collapsed in the street; Brizuela was taken to a hospital where he gave the gun to someone. At the hospital, Brizuela gave the gun to the person who shared ownership of it with Arteaga. He did not know what then became of it.
The first time he talked to the police about what happened that night, Brizuela told them everything except about the gun in Arteaga’s lap. Brizuela withheld this information because Brizuela had a prior conviction for gun possession and did not want to get into trouble over Arteaga’s gun. Brizuela told the investigating officers about the gun about a week before trial.
2. Derek Calhoun
As Calhoun walked back to Arteaga’s car after leaving the party, he noticed defendant and another Hispanic male. Arteaga was looking under the seat for the radio faceplate when defendant approached the car and knocked on Brizuela’s passenger side window. Brizuela rolled down the window a little and Calhoun heard defendant say, “Where are you fools from?” He noticed that defendant’s right hand was in his pocket. Calhoun felt threatened by the question because, in Calhoun’s experience growing up around gangs in Compton, the wrong answer to that question could result in a physical altercation; since they were already in the car when defendant asked the question, Calhoun was afraid that they were going to get shot. Calhoun next heard defendant ask Arteaga what he was reaching for. Calhoun then saw Arteaga pull a .38-caliber gun out of his lap and point it toward defendant. Arteaga did not cock or fire the gun. After Arteaga pointed the gun, defendant took one or two steps back and started shooting toward the front windshield of the car. Calhoun heard eight or nine quick shots, but he did not actually see defendant shoot because Calhoun had ducked down as soon as defendant stepped back. Calhoun did not tell the police about Arteaga’s gun until shortly before the trial. He did not know what became of the gun.
Calhoun identified defendant as the shooter from a photographic six-pack shown to him by police and at trial.
3. Brian Arteaga
Arteaga and Brizuela started looking for the radio faceplate. As defendant and another Hispanic man approached, Brian noticed defendant’s right hand in his waistband, as defendant got closer, Brian could no longer see his hands. Defendant was talking to Brizuela. Brian did not hear defendant say, “Where are you from?” but did hear, “Hey, what you reaching for.” Contemporaneously, defendant pointed to something that was in one of his hands. Then, defendant took two or three quick steps back from the car; Brian could not see what defendant was doing with his hands as he backed up. Brian saw Arteaga point a .38-caliber revolver at defendant; he did not see or hear Arteaga cock or fire his gun. Brian never saw a gun in defendant’s hands, but he heard more than five shots fired. As soon as he heard shots fired, Brian ducked. Like the others, Brian did not tell the police about Arteaga’s gun until shortly before the trial.
4. Antwan Sergeant
Antwan Sergeant recalled that after everyone was in the car and all four doors were shut, he bent down to tie his shoe. At the sound of a window being rolled down, Sergeant glanced up and saw someone standing next to the open passenger side window talking to Brizuela; Sergeant then bent down again to finish tying his shoe. When he heard a sound he associated with the slide action of a gun, Sergeant ducked down. Sergeant did not know whether the sound of the gun being cocked came from inside or outside the car; he never saw Arteaga pointing a gun. Sergeant heard multiple gunshots and sustained a gunshot wound to his left hand.
5. The Gang Expert
In response to a hypothetical describing the facts of this case, gang expert Detective Richard Arciniega opined that the reason a gang member would approach a car in which were seated five young men wearing clothing decorated with the words “Compton,” would be to ascertain where those young men were from because the assumption would be that they were enemies. Arciniega explained that the second person would be a fellow gang member there for protection because gang members rarely commit crimes alone. A resultant shooting would benefit the gang because having committed such a violent act would give the gang more power by making the community so fearful of the gang that the gang could do whatever it wanted in the community.
We discuss more details of the gang expert testimony, post.
B. The Defense Case
Defendant’s brother Ruben testified that defendant came to Los Angeles from Las Vegas for his niece’s funeral on or about December 7, 2005.
PROCEDURAL BACKGROUND
Defendant was charged with first degree murder of Arteaga; premeditated attempted murders of Sergeant, Brian, Brizuela, and Calhuon; and shooting at an occupied motor vehicle. In addition to gun use enhancements, a Penal Code section 186.22, subdivision (b)(1)(C) gang enhancement was alleged as to each count. A jury found defendant guilty of second degree murder of Arteaga and all four attempted murders, and shooting at an occupied motor vehicle; it found not true the allegation that the attempted murders were premeditated but found true the gun use and gang enhancements. Defendant’s motion for new trial was denied, and he was sentenced to a total of 156 years to life in prison. He filed a timely notice of appeal.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
A. Contrary to his Contention Defendant Did Not Act In Self-Defense as a Matter of Law
Defendant contends his conviction must be reversed because the evidence established that he acted in lawful self-defense as a matter of law. He argues the evidence was undisputed that he shot Arteaga only after Arteaga pointed a gun at him. We disagree this constituted self-defense as a matter of law.
For a killing to be in self-defense, “ ‘the defendant must actually and reasonably believe in the need to defend. [Citation.] . . . To constitute “perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] . . . [¶] ‘It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.’ [Citation.] Moreover, a quarrel provoked by a defendant, or a danger which he has voluntarily brought upon himself by his own misconduct, is not sufficient to support a reasonable apprehension of imminent danger. [Citation.] ‘In other words, when a defendant seeks or induces the quarrel which leads to the necessity for killing his adversary, the right to stand his ground is not immediately available to him, but, instead, he must first decline to carry on the affray and must honestly endeavor to escape from it.’ [Citations.]” (People v. Hill (2005) 131 Cal.App.4th 1089, 1102, disapproved on other grounds in People v. French (2008) 43 Cal.4th 36, 48.)
The evidence here was that gangs view strangers in their territory as enemies and use violence to protect their territory; in gang culture, the question “Where are you from?” is intended as challenge and is commonly a prelude to physical violence perpetrated by the questioner upon the person being questioned; defendant was a member of the gang that claimed as its territory the location of the shooting; that gang was known for its violence; defendant knocked on the window of the victims’ car with a gun; he kept his hand on the gun as and essentially he asked them, “Where are you from?”
From this evidence, a reasonable trier of fact could infer that defendant created circumstances, which caused Arteaga to reasonably fear that defendant would shoot the occupants of the car if he was not satisfied with the answer to his question. Under such circumstances, Arteaga would have been legally justified in pointing a gun at defendant to thwart the anticipated attack. There was no evidence Arteaga fired his gun. Under these circumstances, we reject defendant’s assertion that the evidence established he acted in self-defense as a matter of law.
The facts here are markedly similar to those in People v. Bolton (1979) 23 Cal.3d 208. Although the issue before the court was prosecutorial misconduct, the court had occasion to visit the defendant’s claim to self-defense when it assessed the prejudice of the misconduct. “Even if appellant’s reconstruction of the day’s events were believed entirely, the assault could not be justified as self-defense. Appellant was clearly the aggressor in the evening’s quarrel. He pointed a gun at Hollister at a time when Hollister made no immediate threat against him. When Hollister reached as for a gun, appellant as the aggressor was bound to retreat and not to stand his ground. [Citations.] However, instead of retreating, appellant fired his gun.” (Id. at p. 215.)
C. Substantial Evidence Supported the Convictions of Attempted Murder
Defendant argues that the only reasonable inference from the evidence is that he intended only to shoot Arteaga—the only person who pointed a gun at him—and did not intend to kill the others. We disagree.
In reviewing a challenge to the sufficiency of the evidence, “ ‘we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 137.)
In People v. Bland (2002) 28 Cal.4th 313, 328 (Bland), our Supreme Court concluded that “[t]o be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.” However, a defendant who shoots at a group of people may be punished for the actions toward everyone in the group even if the defendant primarily targeted only one of them. The defendant may be found guilty of attempted murder of everyone in the group based on “concurrent intent,” (id. at p. 329) or colloquially the “kill zone” theory of attempted murder.
Under this doctrine, the requisite mental state for attempted murder can be inferred “when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.” (Bland, supra, 28 Cal.4th at p. 329.) As the Bland court explained, when a defendant who intends to kill A drives by a group consisting of A, B, and C and attacks the group with automatic weapon fire in order to ensure killing A, the defendant “ ‘has intentionally created a “kill zone” to ensure the death of his primary victim . . . . When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets . . . the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death . . . . Where the means employed to commit the crime against a primary victim creates a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.” (Id. at p. 330.)
This theory was articulated for the jury here in CALCRIM No. 600 which, as given, reads: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed ‘the kill zone.’ The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in the victim’s vicinity. Whether a perpetrator act[ua]lly intended to kill the victim, either as a primary target or as someone within the zone of risk is an issue to be decided by you.”
Here, that defendant intentionally created a “kill zone” to ensure the death of Arteaga, his primary victim, can reasonably be inferred from the evidence that defendant escalated his attack from a single bullet aimed at Arteaga in the driver’s seat, to a hail of bullets, as many as 15, one of which actually hit victim Sergeant, who had ducked down in the back seat.
D. The Gang Enhancements Were Supported by Substantial Evidence
Defendant contends the true finding on the gang enhancements alleged pursuant to section 186.22, subdivision (b)(1)(C) were not supported by substantial evidence. He argues there was no evidence that the crimes “benefited” the gang or that defendant had a specific intent to promote, further or assist the gang. He maintains that the only reasonable inference to be drawn from the evidence is that defendant was simply defending himself. We disagree.
Section 186.22, subdivision (b)(1)(C) provides a 10-year enhanced sentence for any person “who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” The same standard of review we have already articulated applies to gang enhancement findings. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) In order to prove the elements of a gang enhancement, the prosecution may present expert testimony. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.)
Here, there was evidence that gangs use violence to protect their territory; view strangers in their territory as enemies; ask the question “Where are you from?” to ascertain whether the person being questioned is an enemy; if the questioner is not satisfied with the answer, the questioner is likely to commit a violent act against the person being questioned; defendant’s gang was known for its violence and claimed the location where the shooting occurred as its territory; and defendant was armed when he asked the victims, “Where are you from?” From this evidence, the trier of fact could reasonably infer that defendant approached the car with the intent to promote and benefit the gang by instilling fear in the community and protecting the gang’s territory from perceived enemies.
E. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of an Unrelated Gang Shooting
Defendant contends he was denied due process as a result of the trial court’s admission of evidence of an unrelated shooting committed by another member of defendant’s gang. We disagree.
To prove that a group is a criminal street gang within the meaning of section 186.22, one of the things the People must prove is that members of the gang “engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); [citations]).” (People v. Bragg (2008) 161 Cal.App.4th 1385, 1400.) “ ‘A “pattern of criminal gang activity” is defined as gang members’ individual or collective “commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” enumerated “predicate offenses” during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense.’ [Citations.]” (Ibid.)
In addition to its relevance to the gang enhancement, gang evidence may also be relevant to the charged offense. In People v. Hernandez, supra, 33 Cal.4th at page 1049, our Supreme Court explained: “Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]”
“Evidence Code section 352 gives the trial court discretion to determine if otherwise relevant evidence should be excluded because its probative value is substantially outweighed by its prejudicial effect or if the evidence is cumulative. We review for an abuse of discretion while giving the trial court’s determination deference. [Citation.] For Evidence Code section 352 purposes, prejudice refers to evidence that uniquely tends to evoke an emotional bias against the defendant without regard to its relevance on material issues. [Citation.]” (People v. Killebrew (2002) 103 Cal.App.4th 644, 650 (Killebrew).)
In Killebrew,the defendant was charged with conspiring to possess a handgun and being an active member of a criminal street gang in violation of Penal Code section 186.22, subdivision (a). Over the defendant’s Evidence Code section 352 objection, the prosecution was allowed to introduce evidence that defendant’s gang was responsible for a shooting. Although there was no allegation that the defendant participated in the predicate shooting, the trial court admitted extensive evidence about the attack. The appellate court found no error. It reasoned that the evidence of the shooting supported the prosecution’s theory that the gang members were conspiring to possess the gun because of the fear of retaliation. The appellate court found the evidence “undoubtedly invoked the kind of emotional bias that Evidence Code section 352 is designed to preclude from the courtroom. Although the issue is close, we are not prepared to say the trial court abused its discretion when it determined the prejudicial effect of the evidence did not substantially outweigh its relevance.” (Killebrew, supra, 103 Cal.App.4th at pp. 650-651.)
Here, one of the two predicate crimes was established by Detective Salaam Abdul, who testified, over defendant’s Evidence Code section 352 objection, that Abdul was the investigating officer in a murder case in which the convicted perpetrator, Juan Gutierrez, was a member of 38th Street; Gutierrez walked up to two people sitting in a car, tapped on the window and asked “Where you Vatos from?” One of the two responded, “We don’t bang, we’re not from nowhere.” The other responded by telling Gutierrez that he had relatives in 38th Street. Gutierrez said, “Fuck that, this is 38th Street hood” and opened fire on the two people in the car, fatally wounding one of them. He was convicted of murder and attempted murder.
During closing argument in this case, defense counsel argued that the question “Where are you from?” does not lead inexorably to violence. To which the prosecutor responded: “What you have here in this case is a 38th Street gang member who knows exactly what those words mean. His own fellow gang members like Juan Gutierrez have spoken those words before in a similar situation and nothing good comes out of it. [¶] A shooting occurs. [¶] Death occurs.” In other words, the prosecutor argued that the evidence was probative of defendant’s state of mind—his intention in approaching the victims and asking the question.
Under Killebrew, this was an appropriate use of the evidence. Although the issue is close, we are not prepared to find the trial court abused its discretion in concluding the evidence was more probative than prejudicial.
In any event, the error was harmless in light of the overwhelming other evidence—from the attempted murder victims, the gang expert, and the investigating officer—that, in gang culture, the question “Where are you from?” is not, as defendant suggests, innocuous.
F. The Trial Court Had No Sua Sponte Duty to Give any Portion of CALCRIM No. 3471
Defendant did not request, and the trial court did not give CALCRIM No. 3471, which reads: “A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [¶] 1. [He] actually and in good faith tries to stop fighting; [¶] [AND] [¶] 2. [He] indicates, by word or by conduct, to [his] opponent, in a way that a reasonable person would understand, that [he] wants to stop fighting and that [he] has stopped fighting[;] [¶] [AND [¶] 3. [He] gives [his] opponent a chance to stop fighting.] [¶] If a person meets these requirements, [he] then has a right to self-defense if the opponent continues to fight. [¶] [If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend [himself] with deadly force and was not required to try to stop fighting.]” (Italics added.)
The trial court instructed on perfect self-defense (CALCRIM No. 505), imperfect self-defense (CALCRIM Nos. 571, 604) and that a person does not have a right to self-defense or imperfect self-defense “if he provokes a fight or quarrel with the intent to create an excuse to use lethal force.” (CALCRIM No. 3472.)
Defendant contends not that the trial court had a sua sponte duty to give CALCRIM No. 3471, but only that it had a sua sponte duty to give the italicized portion of that pattern instruction. Relying on People v. Quach (2004) 116 Cal.App.4th 294 (Quach), he argues that a reasonable inference from the evidence was that “Arteaga engaged in a sudden and perilous counter-assault, which revived [defendant’s] right to self-defense.” We disagree.
The trial court has a sua sponte duty to instruct the jury on any affirmative defense for which the record contains substantial evidence unless the defense is inconsistent with the defendant’s theory of the case. (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
Quach, supra, 116 Cal.App.4th 294, involved a confrontation between rival gang members; when one gang member pulled out a gun, Quach reacted by pulling out his own gun. Citing Quach, the use note to CALCRIM No. 3471 provides: “If the defendant started the fight using non-deadly force and the opponent suddenly escalates to deadly force, the defendant may defend [himself] using deadly force. [Citations.] In such cases, give” the italicized sentence in CALCRIM No. 3471.
Here, there was no evidence that defendant started the confrontation with nondeadly force. On the contrary, the evidence established that defendant began the confrontation by knocking on the car window with a gun, an obvious threat of a violent confrontation. Although defendant put the gun in his waistband, he kept his hand on it. It was defendant, not Arteaga, who introduced deadly force into the mix and there was no evidence that defendant expressed by word or conduct a willingness to stop the altercation.
G. Cumulative Error
Since we have found no error, the claim of cumulative error necessarily fails.
H. Defendant Was Not Denied the Right to Counsel
Defendant contends he was denied the Sixth Amendment right of the United States Constitution to counsel when the trial court refused to allow him to substitute retained counsel at the sentencing hearing. We disagree.
The right to counsel of one’s choice “can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. [Citations.] The right to such counsel ‘must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.] [¶] . . . Generally, the granting of a continuance is within the discretion of the trial court. [Citations.] A continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel . . . [Citation.] [¶] However, ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ [Citation.] . . . [¶] In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, particularly in the reasons presented to the trial judge at the time the request [was] denied. [Citation.]” (People v. Courts (1985) 37 Cal.3d 784, 790-791.)
In People v. Trapps (1984) 158 Cal.App.3d 265 (Trapps), the court held it was an abuse of discretion for the trial court to deny the defendant’s motion for a continuance of the sentencing hearing to hire retained counsel: “A reasonable continuance would not have disrupted the orderly administration of justice. This was a sentencing, not a trial. The sentencing which took place was not a lengthy proceeding and no witnesses were called. It had already been delayed three months, and appropriately so, to enable the Department of Corrections to do a diagnostic study of Trapps. Trapps had other charges still pending in the same court. When Trapps moved to continue his sentencing he had just returned from the study and was not unjustifiably dilatory in his request. [Citation.] The record does not reveal a good reason, let alone a compelling one, why Trapps should not have been given a reasonable continuance to retain counsel.” (Id. at pp. 271-272.)
Trapps is distinguishable. Here, defendant was represented at trial by appointed counsel. Verdicts were rendered on August 7, 2006. The sentencing hearing was set for September 8, 2006. At defendant’s request, sentencing was continued to October 6, 2006. On September 28, 2006, defendant’s appointed trial counsel filed a motion for new trial. At the October 6th sentencing hearing, private Attorney John Colucci indicated that he was appearing on behalf of private Attorney Michael Kilts, who was out of town but had been retained by defendant the week before. According to Colucci, Kilts would be back in a week. Colucci asked for a continuance. The trial court denied the motion to substitute Kilts observing that there was no explanation for defendant’s two-month delay in retaining new counsel; Colucci did not know, and Kilts was not there to say, whether he would be filing a new motion for new trial, if so when he expected to be able to do so, whether he would require transcripts of the trial and if so whether defendant had the resources to pay for transcripts. Thus, unlike in Trapps, here more than just sentencing matters had to be postponed and there was no explanation of the defendant’s delay. Under these circumstances, defendant has not carried his burden of demonstrating that the trial court abused its discretion by denying defendant’s request to substitute counsel.
I. Defendant Did Not Receive Ineffective Assistance of Counsel
Defendant contends he was denied the effective assistance of counsel as a result of trial counsel’s (1) failure to object to the hypothetical given to the gang expert because it did not include the fact that the victim had a gun; (2) failure to request bifurcation of the gang enhancements; (3) failure to object to a jury instruction that allowed the jury to consider evidence of the Gutierrez predicate offense for the purpose of evaluating defendant’s belief in the need for self-defense; and (4) failure to request instruction on the theory of “sudden and perilous counter-attack” as set forth in the last sentence of CALCRIM No. 3471. We disagree.
To demonstrate ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that the defendant was prejudiced as a result, i.e., that it is reasonably probable that, but for counsel’s unprofessional errors, the verdict would have been different. (In re Thomas (2006) 37 Cal.4th 1249, 1256, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.]” (In re Thomas, at p. 1256, citations omitted.)
Assuming solely for the sake of appeal that counsel was deficient as defendant contends, defendant has failed to meet his burden of establishing prejudice. First, given the evidence of the importance of territory in gang culture and the underlying meaning of the question “Where are you from?” addressed by a gang member to a stranger in gang territory, it is not reasonably probable that a more favorable verdict would have been reached if the hypothetical included the fact that the victim pointed a gun at the armed person who asked, “Where are you from?” Second, given this same evidence, it is not reasonably probable a more favorable verdict would have been reached if the predicate offenses had been bifurcated. Third, in light of this evidence, it is not reasonably probable that the verdict would have been more favorable if the jury had been instructed to consider the Gutierrez incident only with respect to the gang enhancement. Fourth, since we have concluded that there was no evidence to support an instruction along the lines of CALCRIM No. 3741, defense counsel was not ineffective for failing to request it. (See People v. Cunningham (2001) 25 Cal.4th 926, 1037-1038.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., BIGELOW, J.