Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF014972. F. Paul Dickerson III, Judge.
Charles R. Khoury Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Stephanie Chow and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Gaut Acting P.J.
Defendant Balerio Millan Lizarraga appeals from judgment entered following jury convictions for second degree murder (Pen. Code, § 187), a lesser included offense of premeditated murder (count 1), and armed robbery (§ 211; count 2). The jury also found true the enhancements of discharging a firearm when committing count 1 (§§ 12022.53, subd. (d) and 1192.7, subd. (c)(8)), and of personally using a firearm as to count 2 (§§ 12022.53, subd. (b) and 1192.7, subd. (c)(8)). The trial court sentenced defendant to an aggregate term of 55 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court violated his constitutional right to effective assistance of counsel by not allowing independent counsel to present defendant’s motion for new trial. We conclude there was no reversible error and affirm the judgment.
1. Facts
The facts underlying the charges are for the most part insignificant to the issues on appeal and, therefore, will be briefly summarized as follows.
On January 7, 2006, at around 2:00 p.m., defendant arrived at Jonathan Ruiz’s house. Jonathan lived with his father, Pablo Ruiz. Ricardo Lopez and Roberto Miranda also lived at the home. At around 8:00 p.m., Jonathan, defendant, Santos Pelon, and Refugio Cuco began drinking beer and ingested methamphetamine while Pablo slept.
During the evening, defendant and Miranda went to dinner and then returned to the house. Defendant’s brother Gerardo was there, along with Lopez, Jonathan, Pelon and Cuco, who were still drinking beer and ingesting methamphetamine. That evening defendant showed the men his semiautomatic handgun that was under his waistband.
Around midnight, Jonathan walked outside and saw Lopez and defendant arguing in front of the house. Cuco was inside. Lopez was standing at the bottom of the front stairs and defendant was standing at the top of the stairs. Defendant’s handgun was tucked under his pants waistband. Jonathan told Lopez and defendant to be quiet so they would not wake up Pablo and then went inside.
A few minutes later, Jonathan heard gunshots. Miranda saw Cuco go out the front door and saw from the window Lopez clutch his chest and fall to his knees. Miranda went outside and saw Lopez lying on the ground. Cuco was gone. Defendant pointed his gun at Miranda and told him to give him his car keys. After Miranda gave defendant his keys, defendant drove away in Miranda’s vehicle.
Miranda went back inside and told Jonathan that defendant “just did in” Lopez. Jonathan said to get the police. Jonathan and Miranda left. Miranda ran to the police station to report the shooting. He accompanied the officers to the crime scene where Lopez was still lying on the ground in front of Jonathan’s house. He was not breathing and did not have a pulse.
Jonathan’s brother, Mario Ruiz, who roomed with defendant in January 2006, testified that at 2:00 a.m., defendant woke Mario, hugged him and then left in Miranda’s Explorer. Later that morning, defendant called Mario and told him that Lopez was dead. Defendant described what happened and said he had “done it.”
Humberto Munoz testified that on the day of the shooting, between 6:00 p.m. and 7:00 p.m., defendant joined Munoz’s family for a barbecue. Defendant left after 10:00 p.m.
Defendant’s gun was not found at defendant’s home or at another location to which defendant had access, but an officer found a gun holster at defendant’s residence. Defendant did not testify.
2. Motion for New Trial
Defendant contends the trial court’s failure to appoint him new or independent counsel to present his motion for new trial based on ineffective assistance of counsel (IAC) violated his right to effective representation. Defendant argues the court should have appointed new counsel for him for the purpose of bringing a new trial motion based on IAC, because his trial attorney had a conflict in arguing his own incompetency.
A. Factual Background
At the sentencing hearing, defendant’s trial attorney, Dario Bejarano, requested a 60-day continuance on the grounds he needed to discuss with defendant statutory provisions defendant had raised and explain why certain witnesses were or were not called. In addition, defendant wanted time to make arrangements with his family before going to prison. Defendant also asked Bejarano to discuss sentencing and what his remedies were, if any, before sentencing. The court stated there was no ground for continuing sentencing and therefore denied the request.
The court asked if defendant wished to say anything else before the court sentenced him. Bejarano stated that defendant continued to maintain his innocence and had told Bejarano there were witnesses defendant wished to discuss with Bejarano. Defendant told Bejarano that the witnesses would place him at a different location than the scene of the shooting and establish defendant showed up at the crime scene after the shooting had already occurred.
Defendant personally told the court he wanted to present more witnesses that would clarify what occurred, and requested the court to give him the opportunity to have another trial. He stated: “I would like for my witnesses, and the gentlemen like Cuco and Pelon, for them to come in and testify. I’m asking for another opportunity [¶]... to clarify everything.” The court told defendant he would not get another opportunity in the trial court unless the court of appeal determined that it was required.
Bejarano stated he had nothing further to argue and added that defendant had given him a copy of a motion for new trial but there was no basis for bringing such a motion. The court proceeded with sentencing defendant.
B. Discussion
The record reveals that neither defendant nor his attorney filed a written motion for new trial or orally moved for a new trial. In addition, defendant did not complain that he had received IAC or state he was dissatisfied with his attorney’s representation, and neither defendant nor his attorney requested the court to appoint new counsel for defendant. Nevertheless, defendant argues on appeal that the trial court committed reversible error by not appointing him independent counsel for the purpose of filing a motion for new trial based on IAC and new evidence.
Section 1181 provides various statutory grounds for bringing a motion for new trial. Section 1181, subdivision 8, provides in relevant part that “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.”
This statutory provision authorizes a trial court to order a new trial after considering factors, such as discovery of new evidence that could not have been discovered and produced at trial with reasonable diligence, and that, with the new evidence, a different outcome could have resulted. (People v. Beeler (1995) 9 Cal.4th 953, 1004 (Beeler); see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1251-1252.) A motion for new trial can also be brought under common law based on IAC. (People v. Stewart (1985) 171 Cal.App.3d 388, 394-395 (Stewart); People v. Fosselman (1983) 33 Cal.3d 572, 584.)A trial court’s ruling on a motion for new trial will not be disturbed absent a manifest abuse of discretion. (Musselwhite at pp. 1251-1252; Beeler at p. 1004.)
Under section 1182, the trial court is required to hear and decide a motion for new trial before judgment if such motion is properly before the court. (§ 1182.) Defendant argues he properly moved for new trial and the trial court’s failure to hear his motion was prejudicial error. Defendant claims the record reflects that defendant prepared a written motion for new trial. Defendant told the court during the sentencing hearing that he wanted another chance to present his defense because there were alibi witnesses that should have testified in his defense. But neither defendant nor his attorney actually moved for a new trial. Furthermore, Bejarano told the court there was no basis for bringing a motion for new trial.
Even though defendant told the court he wanted another opportunity to try the case, he did not say he wanted to bring a motion for new trial or that he wanted his attorney or another attorney to bring the motion for him. Defendant did not state that his representation was inadequate and did not inform the court that he intended or wanted to file a motion for new trial based on IAC.
Also, in making a motion for a new trial based on newly discovered evidence, the defendant must show that the evidence, and not merely its materiality, was discovered only after the conclusion of the trial, and that he could not have discovered and produced the evidence at trial, if he had exercised reasonable diligence. (§ 1181, subd. 8; Beeler, supra, 9 Cal.4th at pp. 1004-1005.) Defendant did not indicate that the evidence he sought to present was newly discovered.
Defendant did not state any grounds or circumstances that would support a motion for a new trial. Defendant did not claim that he had been prevented from presenting Cuco and Pelon as witnesses in his trial or that he or his attorney did not discover until after the trial that Cuco and Pelon would testify favorably to the defense. Defendant’s claim that there were witnesses that would establish he was not guilty did not require the trial court to grant a new trial or appoint new counsel to bring a motion for new trial. Under such circumstances, the trial court did not abuse its discretion in proceeding with sentencing.
Defendant argues that under Stewart, supra, 171 Cal.App.3d 388, the trial court should have immediately appointed new counsel to investigate and present a new trial motion, since there was a conflict created by his trial attorney being required to bring a motion for new trial arguing that his own performance was deficient or ineffective.
In Stewart, supra, 171 Cal.App.3d 388, the defendant told his attorney to file a motion for new trial based on incompetence of counsel. Defense counsel filed the motion but did not state the basis for the defendant claiming incompetence of counsel. At the motion hearing, defense counsel requested the court to appoint new counsel to argue the motion because defense counsel could not argue his own incompetence. (Id. at p. 393.) The trial court refused to do so. During an in camera hearing with the defendant and his attorney, the defendant told the court his attorney provided inadequate representation because he did not call the defendant’s personal doctor and two witnesses. The court denied the defendant’s motion, concluding it was totally unsupported and frivolous. (Id. at p. 394.)
The Stewart court noted that the issue of whether to appoint new counsel to present a motion for new trial is distinct from the question whether new trial is warranted. The issue addressed in Stewart, supra, 171 Cal.App.3d 388, was whether the trial court should have appointed new counsel to argue the defendant’s motion for new trial. The Stewart court explained that, “in hearing a motion for new trial based on incompetence of trial counsel, the trial court must initially elicit and fully consider the defendant’s reasons for believing he was ineffectively assisted at trial. In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent. If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, then, unless for other good and sufficient reason the court thereupon grants a new trial, the court must determine whether to substitute new counsel to develop the claim of incompetence. New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings.” (Id. at pp. 396-397.)
In Stewart, supra, 171 Cal.App.3d 388, the court concluded that it was unnecessary for the trial court to appoint new counsel to argue ineffective representation based on defense counsel not calling the defendant’s personal doctor, because the doctor’s testimony was not relevant to any material issue. (Id. at p. 397.) The Stewart court, however, reversed and remanded the matter to the trial court, with instructions to ask the defendant what he anticipated the two other witnesses would state and why their testimony was necessary. (Id. at p. 398.)
Here, unlike in Stewart, supra, 171 Cal.App.3d 388, neither defendant nor his attorney filed a motion for new trial or orally moved for new trial. Defendant also did not tell the court he was inadequately represented. The trial court thus did not abuse its discretion in proceeding with sentencing without substituting out defendant’s current attorney and appointing new counsel, and without ruling on whether defendant was entitled to a new trial. There was no new trial motion before the court, no request to file a motion for new trial, no assertion of inadequate representation, and no request for a new attorney.
While defendant expressed dissatisfaction with being convicted and wanted another chance to prove his innocence by having additional witnesses testify, this, no doubt, is not uncommon among convicted defendants and is not sufficient grounds for mandating the trial court appoint new defense counsel, where there has been no request for new counsel, no claim of inadequacy, and no motion for new trial.
3. Disposition
The judgment is affirmed.
We concur: King J., Miller J.