Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F00181
SIMS, Acting P.J.A jury found defendant S.K. guilty of attempted murder in violation of Penal Code sections 664 and 187, subdivision (a), and discharging a firearm at an occupied motor vehicle in violation of section 246, and found related special firearm allegations to be true. The court denied defendant’s post-trial Marsden motion and request for continuance, and sentenced him to a term of life with the possibility of parole plus a consecutive term of 25 years to life.
Undesignated statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On appeal, defendant contends the trial court abused its discretion in (1) denying his Marsden motion, (2) denying his request for continuance of sentencing, and (3) admitting into evidence testimony regarding his gang affiliation. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The August 2004 Fight
One evening in August 2004, N.X. (the victim) was hanging out with his friend, S.T., at S.T.’s house on Las Palmas Avenue. They heard a loud commotion and went outside to investigate. A group of people, including the defendant, stood in the street. S.T. approached the group and defendant pushed him. When the victim intervened, the defendant pushed him as well. Defendant and the victim “square[d] off” and began to fight. The victim soon gained the upper hand, and one of defendant’s friends jumped in and started fighting with S.T. Soon, “everybody started jumping in” to the fight, including defendant’s girlfriend, J.M. When the crowd picked up bottles and pieces of wood to use as weapons, the victim and S.T. ran back into the house. Someone in the crowd threw a piece of wood through one of the windows. The police were called but never responded. The victim did not report the incident to police for fear of retaliation.
The September 2004 Shooting
In September 2004, the victim, S.T. and a friend went to Family Billiards to play pool. Defendant and three other men drove up in front of the pool hall. When defendant walked inside the pool hall, the victim and S.T. went outside to talk with defendant’s friends to “try to resolve [the] problem.” Defendant returned to the car and suggested they take it somewhere else. Defendant and his friends drove to the corner and the victim and S.T. followed on foot. Once there, defendant got out of the car, pulled out a handgun and started shooting. One of the shots grazed the victim’s ankle. The victim and S.T. ran back inside the pool hall and defendant and his friends drove away. The victim did not call the police because he did not want to create “a bigger problem.”
The December 16, 2004 Shooting
At approximately 6:00 p.m. on December 16, 2004, the victim was home playing video games with his little brother, P. P. left the house to go visit some friends down the street, but returned momentarily, telling the victim the defendant was outside. Not wanting the defendant to know where he lived, the victim stayed inside and continued playing video games. P. walked down the street and hung out with defendant’s younger brother and another friend, for several hours until the defendant came and picked his brother up around 7:00 or 8:00 p.m.
That same evening, the victim went over to S.T.’s house to watch a basketball game. He brought some beer with him, which he and S.T. decided to drink in the car parked out in front of the house because S.T.’s father did not approve of drinking in the house.
The two men sat in the car and drank a couple of beers while they talked and checked the basketball score on the victim’s cell phone. After about 10 minutes, S.T. went back inside the house to change into some warmer clothes.
A moment later, defendant walked up to the driver’s side window and fired five or six shots into the car, hitting the victim in the chest, arm and back. S.T. and his brother heard the gunshots and the sound of the victim moaning. S.T. called 911 while his younger brother ran out to help the victim until help arrived. The victim was taken to the hospital where he remained for over two months. Police conducted a videotaped interview at the victim’s hospital bedside during which the victim identified defendant as the person who shot him.
As a result of the shooting, the victim is now a paraplegic.
Defendant was arrested and charged by amended information with attempted murder (Count One), discharge of a firearm at an occupied motor vehicle (Count Two), and two counts of assault with a deadly weapon (Counts Three and Four). The information specially alleged personal use and personal discharge of a firearm during commission of Count One, personal discharge of a firearm during commission of Count Two, and personal use of a firearm during the commission of Counts Three and Four.
Counts Three and Four related to the September 2004 shooting incident at the pool hall.
Prior to commencement of trial, the prosecution filed a motion in limine seeking to admit evidence of defendant’s gang affiliation to prove motive and to impeach alibi testimony from defendant’s girlfriend. The court’s ruling precluded evidence of gang affiliation under Evidence Code section 352, but noted the issue might need to be revisited at a later time.
At trial, the victim identified defendant as the shooter with “100 percent” certainty.
During trial, the court revisited the issue of eliciting testimony regarding defendant’s gang affiliation from defendant’s girlfriend, J.M., for the purpose of impeaching her with prior inconsistent statements. Despite its earlier ruling, the court concluded over defendant’s objection that the prosecution would be allowed to ask J.M. questions pertaining to defendant’s status as a gang member in order to impeach her testimony, and that an appropriate limiting instruction would be given.
On direct examination, J.M. testified that she and defendant were home on the morning of December 16, 2004, until defendant took her to work. She said he picked her up from work at 2:00 p.m. and drove her to his mother’s house to have something to eat. Sometime that afternoon, defendant and J.M. bought papaya salad from a neighbor, dropped defendant’s two younger brothers off down the street, and went to visit defendant’s friend (a mechanic), to have him look at J.M.’s van. J.M. and defendant drove back home to North Highlands (a 30- to 40-minute drive), arriving there at approximately 6:00 or 6:30 p.m. They ate in and watched a movie and remained home the rest of the night.
The mechanic’s house is located next door to the victim’s house.
On cross-examination, J.M. was questioned about inconsistencies between her trial testimony and prior statements she had given to police, including statements regarding defendant’s gang affiliation. At defense counsel’s request, the court gave a limiting instruction regarding use of J.M.’s testimony related to defendant’s alleged gang affiliation.
The jury found defendant guilty of attempted murder and discharge of a firearm into an occupied vehicle, and found the related special allegations to be true. The court declared a mistrial on the remaining charges.
At the sentencing hearing one month later, defense counsel requested a continuance, telling the court he had recently obtained information, and conducted some investigation, regarding the “real shooter” (a person named A.P.) and a possible percipient witness (a person named P.S.), and needed additional time to conduct further investigation in that regard. The court considered the information “sketchy and [] uncorroborated,” and denied the request.
Prior to imposition of sentence, defendant read a statement to the court which set forth various complaints regarding the adequacy of his legal representation at trial. Characterizing those complaints as a Marsden request, the court conducted an in camera Marsden hearing and thereafter denied the motion.
The court sentenced defendant to an aggregate prison sentence of life with the possibility of parole plus 25 years to life, and imposed various fees and fines. The People dismissed Counts Three and Four in the interest of justice.
Defendant was granted relief from untimely filing of his notice of appeal.
DISCUSSION
I
Defendant first contends the trial court denied his Marsden motion on improper grounds and failed to conduct an adequate inquiry into his complaints concerning his counsel. We disagree.
When a defendant seeks to discharge his court-appointed counsel on the basis of inadequate representation, the court must allow defendant to explain the basis of his claim and to relate specific instances of counsel’s inadequate representation. (People v. Smith (2003) 30 Cal.4th 581, 604.) “A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 (Jones).)
We review the trial court’s decision denying defendant’s Marsden motion under the deferential abuse of discretion standard. (Jones, supra, 29 Cal.4th 1229, 1245.) “‘Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603.)
Defendant claimed his trial counsel, Joel Deckler, (1) failed to investigate information provided by defendant regarding the real perpetrator and a possible witness present when the shooting occurred, (2) failed to file a motion pursuant sections 1181 and 1182, and (3) failed to question witnesses in the manner suggested by defendant.
The court offered Deckler the opportunity to respond. With regard to investigation into the alleged shooter, Deckler submitted the matter based on his prior representations to the court that (1) he had been given information regarding the identity of the “real shooter” (an individual who was then in custody on another matter) and contacted that individual’s legal counsel but, due to the fact that the other case was pending, he was denied permission to interview that potential suspect, and (2) he had also been given the name of a possible witness who was with the “real shooter” at the time of the shooting, but his investigator’s contact with that individual that very morning had “not panned out.”
With regard to filing a motion pursuant to section 1181, Deckler explained that a motion “to dismiss” would have been “superfluous” given the abundance of evidence against the defendant. Deckler went on to describe his lengthy record as a criminal trial attorney, having tried over 200 felony cases to verdict with several acquittals in Three Strike cases, and concluded that he “did a masterly job in this case.” Deckler also noted that the jury deliberated much longer than one would have expected considering that “the case was so overwhelming against [the defendant] in terms of proof beyond a reasonable doubt.”
Attorney Deckler evidently mistook section 1181 (motion for new trial) for section 1118.1 (motion for judgment of acquittal).
The court agreed Deckler was a very experienced lawyer who did a very good job for the defendant, particularly in light of the jury’s inability to reach a unanimous verdict on two of the four counts. The court concluded that, despite defendant’s disagreement with Deckler regarding strategy, and “given all the other facts and circumstances,” defendant “got excellent representation,” denying the motion as untimely.
We conclude there is no Marsden error. The trial court gave defendant a full opportunity to specify his concerns, and elicited an explanation from Deckler in response to those concerns. With regard to matters that took place in the courtroom, the court was able to observe Deckler’s performance during the trial and we therefore defer to its assessment of his performance, absent contrary evidence. (People v. Diaz (1992) 3 Cal.4th 495, 574.) To the extent there was a question regarding the efforts taken by Deckler outside the courtroom to investigate the “real shooter” and the percipient witness, the court was entitled to accept counsel’s explanation of his conduct and was not obliged to inquire into the actual efficacy of his efforts. (People v. Smith (1993) 6 Cal.4th 684, 696-697; People v. Webster (1991) 54 Cal.3d 411, 435-436.) Finally, defendant’s complaint regarding questioning of trial witnesses relates to trial tactics and strategy and does not constitute the type of “irreconcilable conflict” that indicates counsel’s representation has become inadequate. (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
Defendant argues the trial court improperly denied the motion on the ground that it was untimely. We disagree. While the court noted the motion was “untimely,” the record also clearly reflects that it conducted a full Marsden hearing and elicited all of defendant’s complaints and Deckler’s responses thereto. The record also reflects that the court fully considered the information presented at the hearing, as well as “all the other facts and circumstances,” in making its final determination.
Defendant also argues his counsel confused section 1181 with 1118.1 and failed to bring a motion for new trial based on “ineffective assistance of counsel” arising out of the failure to investigate the “real shooter” and the percipient witness. However, as we have previously discussed in this opinion, counsel adequately explained his efforts to explore both leads, to no avail. Any confusion on counsel’s part regarding a motion for new trial versus a motion for acquittal was therefore harmless.
Defense counsel did not just “try” to contact the witness, as defendant suggests on appeal; his representation to the court was as follows: “My investigator, Mr. Martinez, contacted Mr. S[.] this morning, and that has not panned out.” (Emphasis added.)
We conclude the court did not abuse its discretion in denying defendant’s Marsden motion.
II
Defendant contends the trial court violated his right to due process of law when it refused to grant a continuance to permit Deckler to further investigate information regarding the “real shooter” and a possible witness with personal knowledge about the shooting. We disagree.
“‘The granting or denial of a motion for continuance rests within the sound discretion of the trial court.’” (People v. Michaels (2002) 28 Cal.4th 486, 525, quoting People v. Mickey (1991) 54 Cal.3d 612, 660.) “‘A motion for continuance should be granted only on a showing of good cause. (§ 1050, subd. (e).)’ [Citation.] . . . The standard of review for a trial court’s denial of a continuance motion is abuse of discretion. [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 352.) “An important factor for a trial court to consider is whether a continuance would be useful. [Citation.] . . . [T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time.” (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Defense counsel requested a continuance at the sentencing hearing on May 12, 2006. He informed the court that he “was given information” about the “real shooter” and, on May 2, 2006, “as soon as [he] obtained the information,” he contacted the public defender’s office to try to obtain the suspect’s statement. He was informed the following day that the suspect “had a pending case and there was no permission to talk to him [the suspect].” Counsel also informed the court that the defense investigator’s contact with the alleged witness had “not panned out.” We infer from those statements that additional efforts to obtain access to the alleged shooter during the pendency of the case against him would be fruitless, and further contact with the potential witness would not likely produce information helpful to defendant’s case since the initial contact did not “pan[] out.” We find no error in the court’s denial of the motion for lack of good cause.
III
Defendant contends admission of evidence of his gang affiliation was prejudicial error requiring reversal of his conviction. We agree that admission of the evidence was error; however, we conclude the error was harmless.
Admission or exclusion of evidence offered for impeachment on a collateral matter is within the trial court’s discretion. (People v. Douglas (1990) 50 Cal.3d 468, 509.) On appeal, we review the trial court’s admission of gang affiliation evidence for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Tran (1996) 47 Cal.App.4th 759, 771 [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’”].)
“[A] party cannot ‘elicit otherwise irrelevant testimony on cross-examination merely for the purpose of contradicting it.’” (People v. Fritz (2007) 153 Cal.App.4th 949, citing People v. Lavergne (1971) 4 Cal.3d 735, 744.)
Here, defendant was not charged with any crime related to gang membership or activity. He did not testify at trial, nor did he raise the issue of his gang affiliation. It was the prosecution who introduced that evidence to impeach defendant’s girlfriend and alibi witness, J.M., with prior inconsistent out-of-court statements she made to police. Those statements were wholly unrelated to the facts at issue at trial. Given that J.M.’s out-of-court statements related to a collateral matter (defendant’s involvement with gangs), what little probative value they may have had was significantly outweighed by the prejudicial effect of evidence defendant was a gang member. Under these circumstances, we conclude the trial court’s admission of the evidence was an abuse of discretion.
Defendant argues the error is prejudicial and, under Chapman v. California (1967) 386 U.S. 18, 23 [87 S.Ct. 824, 17 L.Ed.2d 705], is not harmless beyond a reasonable doubt because the evidence of his gang affiliation was “not probative of any disputed fact,” the evidence in the case “was evenly balanced” and the trial court’s limiting instruction was “confusing.” In the alternative, defendant argues the court’s prejudicial error requires reversal under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
In assessing whether an Evidence Code section 352 ruling caused a miscarriage of justice, we apply the harmless error standard set forth in Watson. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999; People v. Cudjo (1993) 6 Cal.4th 585, 611.) In doing so, we conclude it is not “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
Contrary to defendant’s assertion, the case against him was strong. Defendant attacked the victim on three separate occasions. The victim made a positive identification of defendant from his (the victim’s) hospital bed, and identified defendant again with “100 percent” certainty at trial. There was no evidence the victim was “intoxicated” after having drunk two or three beers just prior to the shooting, as defendant claims, or that the victim’s consumption of alcohol in any way impaired his ability to positively identify the defendant. Nor is it significant that the victim “neglected to tell the police the shooter wore a ball cap,” given the uncontroverted facial identification.
Although defendant’s girlfriend, J.M., provided an alibi for defendant, her credibility was questionable even in the absence of testimony regarding defendant’s gang affiliation due to a number of other inconsistencies in her testimony regarding the events that occurred the day of the shooting, as well as the potential bias created by her close relationship with defendant.
Citing People v. Cardenas (1982) 31 Cal.3d 897, 914 (Cardenas), defendant argues the mere fact that he was portrayed as a gang member “ensured that the jury would reach a verdict based on improper evidence.” We disagree. In Cardenas, the trial court not only admitted evidence of defendant’s membership in a gang, but also allowed the prosecutor to make “broad inquiries suggesting that the gang was involved in criminal activities” and to present evidence concerning defendant’s narcotics addiction, none of which was relevant to any issue before the jury. (Id. at pp. 905-907.) Given the highly prejudicial effect of that cumulative evidence, and the fact that there was little evidence to prove that defendant perpetrated the charged crimes, the Court of Appeal concluded the error was so prejudicial as to require reversal of the defendant’s conviction. (Id. at pp. 907-910.)
We find the facts of Cardenas, supra, 31 Cal.3d 897, to be distinguishable and the case therefore unavailing. First, unlike Cardenas, the gang evidence admitted here amounted to testimony that defendant was a member of a gang, nothing more. There was no testimony describing the nature or characteristics of the gang or its members, nor was there testimony to suggest the gang was involved in criminal activity. Second, the trial court here gave the jury a limiting instruction explaining they were not to draw any conclusions as to whether or not defendant was, in fact, a member of a gang, and were only to consider J.M.’s testimony for purposes of judging her credibility. Finally, unlike Cardenas, the evidence against this defendant was significant.
We are satisfied from the record that even had the testimony regarding defendant’s gang affiliation not been admitted, it is not reasonably probable that a verdict more favorable to defendant would have resulted. (Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J. ROBIE, J.