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People v. Sahibi

Court of Appeals of California, Second Appellate District, Division One.
Nov 21, 2003
B161149 (Cal. Ct. App. Nov. 21, 2003)

Opinion

B161149.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. OUSSAMA SAHIBI, Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Jeffrey B. Kahan, Deputy Attorney General, for Plaintiff and Respondent.


Oussama Sahibi was convicted of one count of second degree murder, one count of attempted murder, and one count of assault with a firearm, with firearm and criminal street gang allegations found true. Sahibi was sentenced to state prison for a term of 65 years to life. He appeals, claiming the trial court should have (I) granted his request for a continuance so that he could replace appointed counsel with retained counsel, (II) granted his motion to sever the murder count from the other counts, and (III) stricken the assault count on the ground that it is a lesser included offense within the attempted murder charge. We reject these claims and affirm the judgment.

FACTS

On February 11, 2001, Yuri Matuez (a member of the "D.A.B.A. tagging crew") and Melba Rollo were talking on the telephone when Matuez used a three-way calling feature to contact a third person ("911") to ask about a party at 911s house. There was an argument, and Marvin Sandoval ("Pelon," a member of the "Silver Lake" gang who was on the phone at 911s house) threatened to "blast" Matuez and asked for his address. Matuez, who lived at the intersection of 12th and Kingsley, told Pelon he lived a block away, at 12th and Harvard. There was more arguing and someone told Matuez and Rollo that Pelon had left.

Within about 15 or 20 minutes, a truck stopped near the corner of 12th and Harvard. As Matuez watched from his window, he saw three armed men (later identified as Sahibi, Pelon, and "Chuckie," all members of the "Psycho Ass Life" or a related gang) get out of the truck, and Rollo (still on the phone with Matuez) could hear the men yelling. Shots were fired, and a neighbor, Roger Paez, went outside to see if someone needed help. More shots were fired and Paez was killed (he was shot in the face). The men left in the truck.

About a week after the shooting, Rollo and Matuez, joined by Sahibi and "Silent," took a three- or four-day trip to San Diego and Tijuana. Rollo picked up Silent, then Matuez, then Sahibi (who Matuez had not met). When Sahibi came out of his building, Matuez said, "Thats him. He was there the night of the shooting." Matuez nevertheless went on the trip, during the course of which Sahibi bragged that he, Pelon, and Chuckie had driven over in the truck to scare Matuez and that (among other things) he shot Paez in the face but "didnt know if his head was blown off." Sahibi showed Rollo and Matuez a revolver.

Rollo reported Sahibis statements to the police. Rollo and Matuez were interviewed, and Matuez identified Sahibi from a photographic array. The police went to Sahibis apartment but he had moved — and he was involved in another shooting in March before he was apprehended — he exchanged hostile words with a rival gang member, Josue Montes, who expected a fistfight and went into an alleyway to fight; Sahibi had a different plan, drew a revolver, and shot Montes four or five times. Montes survived and later identified Sahibi from a photographic array.

Sahibi was arrested in May. He was charged with Paezs murder, with the attempted murder of Montes, with an assault with a firearm on Montes, and with a number of firearm and street gang enhancements, plus additional counts that were either dismissed (a count charging the attempted murder of Matuez) or did not result in conviction (a count charging an attempt to dissuade Matuez from testifying). At trial, the People presented evidence of the facts summarized above, plus the testimony of gang experts to explain the gang rivalries and motives. The jury rejected Sahibis alibi defense, convicted him of Paezs murder, the attempted murder of Montes, and the assault with a firearm on Montes, and found true all of the gang allegations, plus the allegations that Sahibi personally used a firearm in the two counts involving Montes. (Pen. Code, §§ 187, subd. (a), 664, 245, subd. (a), 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d), 12022.5, 12022.7, subd. (a).)

DISCUSSION

I.

Sahibi contends the trial court should have granted his request for "a reasonable pre-trial continuance to replace appointed counsel with retained counsel." We disagree.

A.

On March 20, 2002, the information was filed against Sahibi and Sandoval (Pelon), the public defender declared a conflict of interest as to Sahibi, counsel was appointed (Joseph F. Walsh), and Sahibi was arraigned. Pretrial conferences were held on April 16 and April 23, and the case was assigned to a trial court. A further conference was held on June 6, at which time the trial court granted Sahibis motion to dismiss one count, granted his motion to sever his case from the case against Sandoval, and denied Sahibis motion to sever the murder count from the other counts. At a pretrial conference held on June 10, trial was set for July 15.

When the case was called for trial on Monday, July 15, the prosecutor informed the court she would be ready the next day. Defense counsel (Walsh) said he would be ready on Tuesday or Wednesday. The court said jury selection would start on Tuesday morning. During a discussion with the court about the length of the trial, defense counsel realized that Sahibis father had entered the courtroom, paused to talk to him, then told the court that "the family hired a new lawyer" to substitute in place of Walsh. The court told Sahibis father, "Well, we are not starting the trial today, so if you are going to have a new lawyer, the lawyer should be here tomorrow . . . at 9:30, and we are planning to start jury selection tomorrow at 9:30. I would expect the attorney would be ready to start the trial. . . . [¶] If hes not going to be ready to start the trial, then I am going to go forward with Mr. Walsh." Sahibis father said, "okay," and the court returned to its discussion with Walsh and the prosecutor.

When the proceedings resumed after a recess, John Yzurdiaga appeared and advised the court he had "agreed to be retained" but responded, when asked, that "there is no way I can be ready" tomorrow. He asked for a 60-day continuance, and said he "couldnt possibly be ready" the following day. The prosecutor objected, noting that all of the witnesses had been subpoenaed, and the court noted that a continuance would affect Sandoval because the trials, having been severed at Sahibis request, had been scheduled back-to-back. The court said it would allow the substitution only if Yzurdiaga could be ready the next day, allowed Sahibis father to have his say, then denied the request for a continuance.

B.

A trial continuance will be granted only upon a showing of good cause, and the decision is one within the trial courts discretion. (§ 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Mickey (1991) 54 Cal.3d 612, 660.) The fact that a defendant is entitled to seek a continuance to allow for the substitution of a new lawyer (People v. Courts (1985) 37 Cal.3d 784, 790) does not mean the defendant has free reign about the timing of such a request, nor does it mean that other considerations must always give way. (People v. Crovedi (1966) 65 Cal.2d 199, 206-208.)

Where, as here, the request is made on the day trial is set to begin, the delay would work a hardship on the witnesses and on another defendant whose trial awaits completion of the trial in question, and no convincing reason for the timing of the request or the need for the continuance is ever offered, the trial court acts reasonably and most certainly does not abuse its discretion. (People v. Cummings (1993) 4 Cal.4th 1233, 1320; People v. Smith (2003) 30 Cal.4th 581, 607; People v. Ortiz (1990) 51 Cal.3d 975, 983-984.)

II.

Sahibi contends the trial court should have granted his motion to sever the Paez murder count from the other counts (the attempted murder and assault involving Montes). We disagree.

Offenses committed at different times and places and against different victims are nevertheless connected for consolidation purposes if they are linked by a common element of substantial importance, and they need not be severed where, as here, both crimes are assaultive in nature. (§ 954; People v. Kraft (2000) 23 Cal.4th 978, 1030; People v. Bradford (1997) 15 Cal.4th 1229, 1315; Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 134-135; People v. Mendoza (2000) 24 Cal.4th 130, 160; People v. Ochoa (2001) 26 Cal.4th 398, 423.)

We reject Sahibis contention that the People joined the Montes counts because the Paez evidence was weaker. Sahibi bragged about the Paez shooting, and he threatened Matuez (who survived the Paez shooting and identified Sahibi at trial). Both shootings were gang related, and the gang evidence would have been admissible in separate trials. In short, the motion to sever was properly denied, and there is nothing about this consolidation that violated Sahibis state or federal constitutional rights. (People v. Ochoa (1998) 19 Cal.4th 353, 408-410; United States v. Lane (1986) 474 U.S. 438, 446, fn. 8; Sandoval v. Calderon (9th Cir. 2001) 241 F.3d 765, 772.)

III.

For the reasons stated in People v. Wolcott (1983) 34 Cal.3d 92, 101-102, and recognizing that Sahibi has raised the issue simply to preserve it for review, we summarily reject his claim that the assault with a firearm on Montes is a lesser included offense within the attempted murder of Montes. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

We concur: SPENCER, P.J. and ORTEGA, J. --------------- Notes: All section references are to the Penal Code.


Summaries of

People v. Sahibi

Court of Appeals of California, Second Appellate District, Division One.
Nov 21, 2003
B161149 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Sahibi

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OUSSAMA SAHIBI, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division One.

Date published: Nov 21, 2003

Citations

B161149 (Cal. Ct. App. Nov. 21, 2003)

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