Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No.BA280383, Curtis B. Rappe, Judge.
Verna We fald, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Luis Munoz, appeals from the judgment entered following his conviction, by jury trial, for first degree murder, escape by force or violence, and assault with a deadly weapon, with criminal street gang enhancements (Pen. Code, §§ 187, 4532, 245, 186.22, sub d. (b)).. Sentenced to state prison for 39 years and four months, Munoz claims there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
The name of this witness has been changed.
On the afternoon of July 16, 2004, Carl was standing on the sidewalk with two friends near the intersection of Wabash Avenue and Alma Avenue in East Los Angeles. Carl belonged to the Dog Pound, a tagging crew that wrote graffiti on walls. Defendant Munoz and another person drove up. Carl knew Munoz from around the neighborhood. He also knew Munoz belonged to a rival tagging crew called the Nasty Habits.
Munoz and another man got out of the car. Munoz was carrying a wooden baseball bat. Without saying a word, the two men started chasing Carl. Carl tried to flee, but they caught up with him. Munoz’s companion punched Carl and Carl fought back, but then he was hit in the back of the head with the bat. Carl fell to the ground, where he was kicked and again hit with the bat before his attackers ran off. Carl and his friends had not done or said anything before the attack started.
A bystander witnessed the attack on Carl. He testified the person with the bat was smiling as he swung it at Carl, and that the bat never changed hands. After the two assailants ran off, the bystander went over to assist Carl, who had a three or four inch gash in the back of his head which was bleeding severely. Four months later, the bystander picked Munoz out of a photo array and identified him as the assailant who had been wielding the bat.
One of the responding officers went to the hospital with Carl, who said Munoz had hit him in the head with a bat. Four months later, Carl picked Munoz out of a photo array as the person who had the bat.
2. The murder of Richard Rivera.
On the afternoon of November 19, 2004, Richard Rivera, a member of the Krazy Ass Mexicans (KAM) gang, was shot three times as he sat in his car. One bullet entered his left eye and killed him.
Rivera had driven to a friend’s house in search of drugs. He parked in his friend’s driveway and went inside. When the friend said he didn’t have any drugs, Rivera left. The friend heard gunshots. When he went outside, he saw someone running away and another person standing near Rivera’s car. This person was holding a gun. Then the gunman started running up the street. Although Rivera’s friend testified he could not identify the gunman, he had told police he recognized the gunman as defendant Munoz, who belonged to the Sentinel Boys gang.
A neighbor of Rivera’s friend also heard the gunshots. The neighbor turned and saw a man running up the street. The neighbor picked Munoz out of a photo array as the man who had been running. At trial, the neighbor recanted this identification, but admitted being afraid to testify because gang members were involved.
Kevin was acquainted with Munoz. On the afternoon of the shooting, he saw Rivera sitting in his parked car. Kevin saw Munoz and another Sentinel Boys gang member run up to Rivera’s car, and then he heard shots being fired. Munoz was standing closest to Rivera’s car. Kevin believed he could be killed in retaliation for identifying Munoz. Kevin was subsequently arrested for driving a vehicle without the owner’s consent. While he was being booked, he volunteered information about Rivera’s murder, saying Munoz and another Sentinel Boys member had run up to Rivera’s car and shot Rivera in the head.
The name of this witness has been changed.
A week after Rivera’s murder, his wife went to Rivera’s friend’s house to ask about Rivera’s killing. The friend said he had seen Munoz shoot Rivera, and that Munoz had a companion with him. The assailants were from the Sentinel Boys gang. The friend did not want to identify them for fear of retaliation.
Charles, a member of the Sentinel Boys gang, testified Munoz described how he had killed Rivera, saying he just “walked up and shot him” with a .38-caliber gun.
The name of this witness has been changed.
The police questioned Munoz about the murder. Munoz said he was in a van with two other homeboys who belonged to an affiliated gang. They drove past Rivera and parked. All three of them got out and approached Rivera. Munoz thought they were just going to beat Rivera up, but then one of Munoz’s companions shot Rivera. Munoz denied having been the gunman.
A forensics expert testified the four bullets recovered from Rivera’s body had all been fired from the same gun, a “.38 special .357 magnum caliber revolver manufactured by Smith and Wesson, Ruger and Torres.”
3. The escape.
On March 25, 2005, nine days after Munoz was booked for Rivera’s murder, Deputy Sheriff Michael Ebling was transporting Munoz in a van from the Men’s Central Jail to the Eastlake juvenile court. When they arrived at the court, the van door opened and the first inmate who came out was pushed into Ebling. Munoz, who had apparently managed to remove his handcuffs during the ride, began to run. Ebling and another deputy pursued. Munoz jumped aboard a moving freight train. The deputies, running alongside the train, grabbed his legs but were unable to pull him off the train. The deputies managed to get onto the train and Ebling grabbed Munoz, who continued to resist until the officers used pepper spray.
4. Gang expert testimony.
Detective Robert Gray testified the KAM gang had more than 300 members. It began as a tagging crew, but then evolved into a full-blown gang. The KAM often recruited members from the Dog Pound tagging crew. The Nasty Habits tagging crew was associated with the Sentinel Boys gang, which had at least 50 or 60 members. The Sentinel Boys and the KAM were rivals who had been involved in a gang war since the 1980s. That rivalry continued throughout 2004, with the Sentinel Boys and the KAM members trying to shoot and kill each other. Many of the people who witness crimes committed by the Sentinel Boys live in the neighborhood the gang controls, and such witnesses often recant or change their stories because they fear retaliation.
The primary activities of the Sentinel Boys include murders, robberies, rapes, assaults, car thefts and drug sales. The Sentinel Boys recruit members from the Nasty Habits tagging crew. Gray characterized Nasty Habits as a “farm club” for the Sentinel Boys. One way to become a member of the Sentinel Boys gang was to commit a robbery or a shooting. Once a person is admitted to the gang, that member will do whatever it takes to keep the gang strong. This involves creating fear in the gang’s enemies; which an individual member does best by gaining a reputation as a shooter or a killer. This is also a way to gain respect within the gang. Sentinel Boys gang members will not take credit for a shooting committed by someone else. Shootings are usually done in the presence of fellow gang members so there are witnesses to the successful deed.
Detective Gray spoke to Munoz about the assault on Carl. Munoz said he had been riding in a van with another homeboy when they saw Carl. Munoz’s companion began fighting with Carl, and Munoz hit Carl over the head once with a baseball bat. The reason he attacked Carl was because Carl was a member of the Dog Pound, a KAM clique. Munoz also told Gray he had just recently become a member of the Sentinel Boys gang and that his new moniker was Little Triste.
Gray opined that, on the day Carl was assaulted, Munoz was “on the threshold of crossing over from [the Nasty Habits crew] to Sentinel Boys.” By the time of Rivera’s murder, Munoz had become a member of the Sentinel Boys. In response to a hypothetical question, Gray opined the assault on Carl and the murder of Rivera had been committed for the benefit of the Sentinel Boys gang.
CONTENTIONS
1. The trial court erred by refusing to bifurcate the gang enhancement allegations.
2. The trial court erred by refusing to sever the assault charges from the murder and escape charges.
3. The trial court erred by admitting into evidence an inflammatory photograph.
4. Munoz was denied the effective assistance of counsel.
5. The trial court erred by refusing to grant a mid-trial continuance.
6. There was cumulative error.
DISCUSSION
1. Trial court did not err by refusing to bifurcate the gang enhancement allegations.
Munoz contends the trial court erred by refusing to bifurcate trial of the gang enhancement allegations from the trial on the assault and murder charges. This claim is meritless.
Under section 186.22, subdivision (b)(1), a person may be punished for an additional term of years if he or she is convicted of a felony that is “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 . . . .”
Before trial, Munoz moved to bifurcate the section 186.22, subdivision (b)(1), gang enhancement allegations from the trial on the underlying murder and assault charges. The trial court denied the motion on the ground the gang evidence was relevant to the underlying charges because it showed motive. When defense counsel argued motive was not an element of either offense, the trial court replied, “I understand. But . . . for someone to just assault two different people for no reason at all is going to be troubling to a jury and, certainly, this is something the jury can weigh in the balance so that motion is denied.”
a. Legal principles.
Under a trial court’s inherent authority to control the order of proceedings, it generally has discretion to bifurcate an enhancement allegation from the substantive charges. (People v. Calderon (1994) 9 Cal.4th 69, 74-75 [bifurcation of prior conviction allegation].) “A gang enhancement is different from the prior conviction at issue in Calderon. A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) “This is not to say that a court should never bifurcate trial of the gang enhancement from trial of guilt. . . . The predicate offenses offered to establish a ‘pattern of criminal gang activity’ (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt.” (Id. at p. 1049.) But “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself . . . a court may still deny bifurcation.” (Id. at p. 1050.) A trial court’s ruling on bifurcation is tested by the abuse of discretion standard. (Ibid.)
Evidence of gang affiliation and activity is properly introduced when relevant to motive or intent. “[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. 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.]” (People v. Hernandez, supra, 33 Cal.4th at p. 1049; see also People v. Williams (1997) 16 Cal.4th 153, 193 [“[I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect.”]; People v. Avitia (2005) 127 Cal.App.4th 185, 192 [“Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative.”].)
b. Analysis.
Here, the gang evidence was relevant to prove Munoz’s motive for committing an otherwise inexplicable shooting and an otherwise inexplicable assault with a baseball bat. These two crimes were the functional equivalent of the classic, apparently motiveless, drive-by shooting that is explained by gang culture evidence. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 239 [notwithstanding potential prejudicial effect of gang evidence, such evidence admissible “when the very reason for the crime is gang related”]; People v. Martin (1994) 23 Cal. App.4th 76, 81 [“where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial”].) As defense counsel acknowledged in the trial court, there was no evidence of motive for either the murder or the assault other than gang rivalry.
In addition, the gang evidence was relevant because it helped explain why several witnesses were afraid to testify and had recanted parts of their police statements. “ ‘ “Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid. Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481 . . . .) Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30 . . . .) It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.]” [Citation.]’ ” (People v. Sanchez (1997) 58 Cal. App.4th 1435, 1449-1450.)
Munoz complains, “The gang expert spent a great deal of time talking about the Mexican Mafia, despite the fact that there was absolutely no evidence that this highly feared prison gang was connected to this case.” But we found only a few, brief references in the reporter’s transcript to the Mexican Mafia out of nearly 100 pages of testimony.
The trial court did not abuse its discretion by refusing to grant bifurcation.
2. Trial court did not err by denying motion to sever.
Munoz contends the trial court erred by refusing to sever the trial of the assault charge from the murder and escape charges. This claim is meritless.
Section 954 provides, in relevant part: “An accusatory pleading may charge two or more different offenses connected together in their commission, . . .” or “two or more different offenses of the same class of crimes or offenses,” “provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . .”
“ ‘The law prefers consolidation of charges. [Citation.] Where . . . joinder is proper under section 954. . . . [a defendant] can predicate error in the denial of [a severance] motion only on a clear showing of potential prejudice. [Citations.] We review the denial of defendant’s motion for an abuse of discretion, that is, whether the denial fell “ ‘outside the bounds of reason.’ ” [Citations.]’ [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 574.)
“The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial. Thus, refusal to sever may be an abuse of discretion where ‘(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all; and (4) any one of the charges carries the death penalty.’ [Citation.]” (Frank v. Superior Court (1989) 48 Cal.3d 632, 639, italics added.) “Cross-admissibility of evidence is sufficient but not necessary to deny severance. [Citation.] As the four-part test is stated in the conjunctive, joinder may be appropriate even though the evidence is not cross-admissible and only one of the charges would be capital absent joinder. [Citation.]” (People v. Manriquez, supra, 37 Cal.4th at p. 574.)
Here, the murder, the escape by force or violence, and the assault with a deadly weapon offenses were all alleged to have been committed by the use of assaultive force and were, therefore, within the same class of crime and properly joined. (See People v. Poggi (1988) 45 Cal.3d 306, 320 [murder and assault with deadly weapon are both “ ‘assaultive crime[s] against the person’ ”].) Munoz argues he was prejudiced because the assault case was weak, but we disagree. In addition to the eyewitness identifications by the victim, who was acquainted with Munoz, and by the bystander, Munoz admitted to Detective Gray that he hit the victim with the baseball bat. Hence, neither case “was particularly weak in evidentiary support when compared with the other[].” (People v. Sully (1991) 53 Cal.3d 1195, 1223.)
The trial court did not abuse its discretion by consolidating these charges.
3. Trial court properly admitted photograph of dog dressed as gang member.
Munoz contends the trial court erred by admitting into evidence a photograph of a pit bull that was wearing a Sentinel Boys gang baseball cap and was sitting next to two guns. Munoz argues the photograph had no relevance to the case and was inflammatory. This claim is meritless.
a. Proceedings below.
The prosecution put in evidence a photograph, taken from a photo album found at a known Sentinel Boys hangout. Detective Gray described the photograph as follows: “It’s a . . . black and white pit bull. He’s wearing a baseball cap that has S.B.S. which is [a] common sign for Sentinel Boys. Perched up against him on his right side looks like a .12 gauge shotgun. And right there at his feet that’s a small caliber semi-automatic pistol.” The prosecution offered this evidence “to show that this gang does engage in violent behavior against other gangs using firearms.” Defense counsel argued the photograph was prejudicial: “[I]t’s a dog. It’s very prejudicial. I mean, there are people on the jury they may like animals.” The trial court replied, “The dog doesn’t look like a victim. The dog looks like one of the aggressors.”
In a subsequent discussion, defense counsel argued the dog photograph was more prejudicial than probative under Evidence Code section 352: “The photograph of the dog holding up the shotgun I think is extremely prejudicial because it is a dog. It’s a dog dressed up in a hat, a gang hat. And, I mean, what is it probative of?” The trial court replied, “[How] about the depth of their devotion?”, and then noted, “[T]here is nothing showing the dog being mistreated.” Defense counsel again argued, “[I]t’s mistreatment of a dog when they have a dog dressed up like that and having a dog with a gun leaning on his shoulder blade and a dog with a pistol between his legs . . . .”
b. Discussion.
“ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is . . . “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958; see People v. Karis (1988) 46 Cal.3d 612, 638 [“ ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual”].) A trial court’s exercise of discretion under Evidence Code section 352 will not be overturned on appeal absent the showing of an abuse of that discretion. (People v. Raley (1992) 2 Cal.4th 870, 895; see also People v. Tran (1996) 47 Cal. App.4th 759, 771 [“A trial court’s exercise of discretion under Evidence Code section 352 will not be reversed unless it ‘exceeds the bounds of reason, all of the circumstances being considered.’ ”].)
Munoz argues the evidence was “completely irrelevant” because the guns shown in the photograph “were not the murder or assault weapons, and no dog figured in the crimes; nor was appellant in the picture.” He also argues the photograph was “highly inflammatory,” that the trial court “was correct that ‘the dog looks like one of the aggressors.’ Because the dog was a pit bull, that in and of itself was highly prejudicial. The fact that it was a pit bull dressed up to look like a gang member displaying his weapons, made the photograph terrifying to those who fear pit bulls.” Munoz also argues the photograph might have offended jurors who felt sorry for the dog: “Furthermore, insofar as dog lovers are concerned, the fact that gang members would dress up a pit bull as if it were just another member of a street gang, ‘uniquely tends to evoke an emotional bias against’ appellant without having any probative value at all.”
We are not persuaded. The photograph was relevant because the dog was wearing a Sentinel Boys baseball cap and posing with guns. This demonstrated the gang members’ devotion to their gang because it showed the extent to which their gang identity was an intimate part of their everyday lives. In this way, the relevance of the photograph was similar to the evidence Munoz had the gang initials “S” and “B” tattooed on his forearms. The photograph also demonstrated a devotion to guns, which was relevant because the murder had been committed with a gun.
At trial, defense counsel complained the photograph would offend jurors who might be dog lovers. Having examined the photograph, we conclude the trial court was exactly right: there is no hint the dog was being mistreated. As for Munoz’s new argument on appeal, that some jurors might have been terrified by the photograph because pit bulls are notoriously violent, the short answer is that there is nothing frightening about this picture. The dog is not jumping or barking or biting. The dog is sitting on the floor, its mouth is closed and none of its teeth is visible. The dog is wearing the gang baseball cap and what looks like a little jacket. The dog is also wearing sunglasses. The photograph is more cute than scary.
The trial court did not abuse its discretion by concluding the photograph of the dog was more probative than prejudicial.
4. Munoz was not denied effective assistance of counsel.
Munoz contends he received ineffective assistance because his attorney failed to object to opinion evidence given by the prosecution’s gang expert that went to ultimate issues to be decided by the jury. This claim is meritless.
a. Legal principles.
“ ‘To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’ [Citation.] ‘If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.’ [Citation.]” (People v. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) “In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny” in order to avoid “the adverse consequences that systematic ‘second-guessing’ might have on the quality of legal representation provided to criminal defendants and on the functioning of the criminal justice system itself.” (People v. Ledesma (1987) 43 Cal.3d 171, 216.)
b. Discussion.
The gang expert testified Rivera’s murder and the assault on Carl were gang related. The gang expert also testified Munoz’s statement to police that he thought Rivera was only going to be beaten was unrealistic, because everything would have been planned out in advance. Munoz contends defense counsel should have challenged this testimony by citing People v. Killebrew (2002) 103 Cal. App.4th 644. We disagree.
“A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a ‘classic’ example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]” (People v. Gonzalez (2005) 126 Cal. App.4th 1539, 1551, fn. 4.) This is true even if the gang expert’s opinion in effect answers an ultimate issue in the case. “Appellant’s reliance on Killebrew for a contrary conclusion is misplaced. In Killebrew, in response to hypothetical questions, the People’s gang expert exceeded the permissible scope of expert testimony by opining on ‘the subjective knowledge and intent of each’ of the gang members involved in the crime. [Citation.] Specifically, he testified that each of the individuals in a caravan of three cars knew there was a gun in the Chevrolet and a gun in the Mazda and jointly possessed the gun with everyone else in the three cars for mutual protection. [Citation.] Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator’s intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.” (Id. at pp. 1550-1551.) “Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. . . . [U]se of hypothetical questions is proper.” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.)
Responding to hypothetical questions based on the facts of this case, Detective Gray opined the crimes had been committed for the benefit of the Sentinel Boys gang. Asked to explain his conclusion, Gray testified: “I base this on the ongoing street war that has been occurring over the last twenty plus years. There is a common way to take out your enemy which is to murder him. Shoot him. [¶] Like I said, it makes your gang stronger. It boosts your reputation of not only within the community but within other gangs and at the same time it makes the rival gang weaker.” Gray explained why Munoz’s story, that he believed Rivera was only going to be beaten, lacked credibility: “You don’t just walk up – everybody knows . . . that is involved in these gang things that there is a high possibility that another guy is going to have a gun, the other rival gang member, or one of his homeboys is going to be nearby with a gun. You don’t go there just to beat someone up. You go to take care of business as fast as you can and then get out of Dodge.” Asked if “individuals that are about to shoot this victim would . . . talk amongst themselves as to who was going to do the shooting,” Gray testified, “They always plan it out. Each one knows what role each one has . . . . [T]hey’re schooled on how to do this, who is going to have the gun, if the cops come which way to run, where to throw the gun, where the gun is going to go afterwards.” Subsequently, the prosecutor asked: “[H]ypothetically speaking, if . . . Sentinel Boy gang members such as in this situation, in your opinion, would they just approach the victim to assault them to commit a battery?” Gray said no, and explained: “Like I said before . . ., if you’re going to go have a fight with them it’s really not going to do any good. You really want to hurt these guys, you know. You don’t know if they’re going to have a gun. Your intent is to take this guy out and it’s not going to happen without a gun.”
Hence, Detective Gray properly rendered his opinion in terms of what a hypothetical Sentinel Boys gang member would have intended in this situation, and therefore defense counsel’s performance was not deficient because any objection to Gray’s testimony would have been properly denied.
5. Trial court properly denied a mid-trial request for a continuance.
Munoz contends the trial court erred when it refused to grant a continuance so defense counsel could interview a witness whose testimony allegedly would have impeached Kevin’s testimony. This claim is meritless.
Munoz’s trial began on March 27, 2006. On April 5, defense counsel asked for a brief continuance to re-interview a potential defense witness who purportedly could testify “that [Kevin] . . . was being paid drugs to testify against [Munoz] at trial [¶] I had the witness interviewed by my investigator and the witness interview did not come up with the kind of result that indicated I could use the witness. [¶] Since then it’s been revealed to my client that the person interviewed didn’t tell my investigator the truth because she was afraid that it would hurt her in court and [Munoz] wants her re-interviewed so that she can now tell the truth and I can use her as an impeachment witness against [Kevin]. . . .” Defense counsel said Munoz had obtained this new information a month ago by speaking to the potential witness directly. The trial court ruled: “Well, I think that there is a lack of due diligence here. . . . [F]or him to just sit on this information and then all of a sudden as we’re about to go to the jury to just spring it on us. [¶] I also have in mind that . . . he must have been told once before this witness was going to say it and when interviewed she didn’t and who knows if she’ll do the same thing this time. [¶] . . . [¶] Even if she now comes forward and says something consistent with his offer of proof she’s going to be severely impeached by the fact that . . . an investigator goes out there originally and she says no.”
The grant or denial of a motion for a continuance is within the sound discretion of the trial court and may only be granted on a moving party’s showing of good cause, which requires a demonstration that both the party and counsel have been diligent in preparing for trial. On appeal, the trial court’s ruling is reviewed for abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 660; see Pen. Code, § 1050; People v. Howard (1992) 1 Cal.4th 1132, 1171-1172 [defendant must show witness is material and likely to give non-cumulative testimony beneficial to the defense].) On appeal, the defendant must demonstrate a clear abuse of discretion in order to challenge the trial court’s denial of a motion for continuance. (People v. Froehlig (1991) 1 Cal. App.4th 260, 265 [“Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.”].)
“ ‘ “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. . . .” ’ [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.)
Munoz argues the trial court should have granted a continuance because there was no lack of due diligence by defense counsel. But due diligence was required of both Munoz and his attorney. “A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The record indicates Munoz knew a month before the continuance was requested that the witness allegedly could offer exculpatory evidence, yet Munoz did not then inform defense counsel. This was not due diligence. Moreover, given that the witness had already been untruthful once, the trial court could have reasonably suspected the purported exculpatory testimony might not be forthcoming. (See People v. Gatlin (1989) 209 Cal. App.3d 31, 40 [speculative nature of proposed new evidence properly justified denial of continuance: “trial judge . . . must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result”].)
The trial court did not abuse its discretion by refusing to grant the continuance.
6. There was no cumulative error.
Munoz contends that, even if harmless individually, the cumulative effect of the claimed trial errors mandates reversal of his convictions. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.