Filed 7/31/26 P. v. Palomino CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B341661
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. XCNBA468876
MARCOS PALOMINO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court
of Los Angeles County, Craig E. Veals, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Wyatt E. Bloomfield and Zachary
John Crvarich, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
A jury convicted defendant and appellant Marcos Palomino
of murder and two counts of unlawful possession of a firearm
by a felon. On appeal, Palomino argues the court erred by
denying his counsel’s motion to withdraw on the eve of trial.
Palomino also argues counsel provided ineffective assistance by
failing to move to sever the unlawful possession charges from
the murder charge. We affirm.
FACTS AND PROCEDURAL BACKGROUND
The People charged Palomino with the first degree murder
of Jose Luis Lopez (Pen. Code, § 187, subd. (a))1, unlawful
possession of a firearm by a felon on June 5, 2018 (§ 29800,
subd. (a)(1)), and unlawful possession of a firearm by a felon
on June 14, 2018 (ibid.). The People alleged various firearm
enhancements on the murder charge.
At trial, the People presented evidence that Palomino,
Lopez, and a juvenile were driving in a stolen car the night of
June 5, 2018. All three were members of the Laguna Park gang.
Surveillance cameras captured video of Palomino, Lopez, and
the juvenile getting out of the car and walking down an alley
around 11:00 p.m. The alley was in an area claimed by a rival
gang called White Fence.
A video of the alley showed Palomino holding an object
near his waist. Two police officers testified the object appeared
to be a handgun; however, they disagreed about its apparent
caliber. The videos captured two muzzle flashes and the sound
of six gunshots. After the shots, Palomino and the juvenile
ran to the stolen car and drove off together.
1 Statutory references are to the Penal Code.
2
Lopez suffered four gunshot wounds, including fatal
wounds to his head and torso. There was stippling on Lopez’s
skin, indicating he was shot from close range. A medical
examiner testified it was possible Lopez was struck by bullets
while on the ground.
At the scene of the shooting, police found six spent nine
millimeter cartridges. A criminalist determined the same gun
fired all six. Bullets found inside Lopez’s body were consistent
with having been fired by a nine millimeter firearm. Police
also found in the area of the shooting a magazine containing
.22 caliber ammunition.
The police tracked Palomino and the juvenile to a motel,
where they were sharing a room. The morning of June 14, 2018
—nine days after the shooting—an officer saw Palomino get into
the backseat of a ride share car. Police pulled over the car and
searched it. Officers found a .45 caliber handgun in the pocket
on the back of the seat directly in front of where Palomino was
sitting. The ride share driver testified the gun was not his,
the gun was not in the car when he searched it the night before,
and Palomino was his first customer of the day.
The police arrested the juvenile near the motel room.
Inside the room, officers found a loaded nine millimeter firearm.
The police tested the firearm and determined it was not involved
in Lopez’s killing.
The police interviewed Palomino while he was in custody.
Palomino admitted driving to the alley with Lopez and the
juvenile. Palomino denied having a gun. He said someone
came up behind Lopez in the alley. Palomino heard gunshots
and started running. He thought it might have been members
of the White Fence gang who attacked the group and shot Lopez.
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While in custody, Palomino made a phone call in which
he suggested the juvenile “take[ ]” the fall because, as a juvenile,
he would get out of prison at age 25.
The jury convicted Palomino as charged and found true the
firearm enhancements, including the allegation that Palomino
personally and intentionally discharged a handgun that caused
death (§ 12022.53, subd. (d)). The court sentenced Palomino
to 25 years to life for first degree murder, plus a consecutive
25 years to life for the firearm allegation. The court selected the
middle term of two years on each unlawful possession conviction,
which it ran concurrent to the term on the murder conviction.
Palomino timely appealed.
DISCUSSION
1. The trial court did not abuse its discretion by denying
defense counsel’s motion to withdraw
Palomino argues the trial court erred by denying his
counsel’s motion to withdraw from the case due to a conflict.
a. Background
Attorney Nicholas Rosenberg represented Palomino at
trial. Palomino retained Rosenberg sometime around September
2022. Rosenberg and the prosecutor announced they were ready
for trial on August 14, 2023.
At a hearing on August 25, 2023—the day trial was set
to begin—attorney Stephen Kahn appeared and asked the court
to substitute in as counsel for Palomino. Palomino told the court
he was in favor of the substitution. Kahn said he was not ready
to proceed with trial, as he had a full schedule and had not yet
discussed the specifics of the case with Palomino. The prosecutor
opposed the substitution, noting it would likely delay trial until
sometime in 2024.
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The court denied the request as untimely. The court noted
it appeared Palomino was simply unhappy with the People’s
final plea offer and wanted to see if new counsel could do better.
The court also noted substitution of counsel at this stage would
result in an unreasonable disruption in the proceedings, which
already had been going on for five years.
Later that day, Palomino’s counsel moved to withdraw,
citing a conflict of interest. Counsel said there “has arisen a
situation which I believe has ripened into an actual conflict of
interest” that “impinges on my duty of loyalty to my client as
well as my duty to effectively represent him.” Counsel asked
the court to accept at “face value” his representations, so as
to avoid “intruding into the attorney-client relationship.”
The court asked counsel when the conflict developed,
noting counsel had not raised it at prior hearings. Counsel
replied it was an “ongoing situation” that had “ripened to the
level of a conflict of interest” following a recent conversation
with Palomino.
Asked for specifics about the nature of the conflict,
counsel said the “attorney-client relationship has broken down”
and there were issues “involving attorney fees.” Counsel clarified
the “paramount” or “primary” issue was the breakdown of the
attorney-client relationship. Counsel said Palomino “does not
intend to cooperate with my defense at trial,” and there was
an issue concerning whether he would testify. Counsel stated
the conflict was on his end—not on Palomino’s end—and it went
beyond disagreements as to strategy.
The prosecutor opposed the motion. He suggested
Palomino might have been purposefully refusing to cooperate
with defense counsel to delay the trial so that Kahn could
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substitute in as counsel. The prosecutor expressed concern that a
similar conflict would arise again if Palomino became unsatisfied
with replacement counsel’s defense.
Palomino personally addressed the court and said he was
“not playing games” and simply did not feel “comfortable having
this lawyer represent me.”
The court denied counsel’s motion. The court
acknowledged defense counsel could not “get specific beyond
a certain point” when discussing the conflict with Palomino.
However, the court noted the issues counsel disclosed concerned
disagreements about strategy and legal fees, and the attorney-
client relationship could be “restored.” The court also noted
the case had already been delayed for a significant amount of
time. The court stated, “in light of all these other background
circumstances, it’s very clear to me, . . . there’s some
gamesmanship at play here.” The court noted it relied on
its ability to “see the parties and the interactions and the feel,
the sense of what’s going on here. And I can read very, very
clearly what’s going on here.” The court said it would closely
monitor the situation going forward and diligently address
issues that might affect the fairness of the trial.
After trial, the court appointed new counsel to represent
Palomino in connection with a claim of ineffective assistance
of counsel. Palomino’s new counsel filed a motion for new trial
on the ground that the court should have granted defense
counsel’s motion to withdraw before trial. Palomino essentially
repeated the arguments defense counsel had made in the original
motion to withdraw. The court denied the motion for new trial.
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b. Analysis
Criminal defendants have the constitutional right to
assistance of counsel, which includes the right to representation
free from conflicts of interest. (People v. Hardy (1992) 2 Cal.4th
86, 135.) “Conflicts of interest broadly embrace all situations
in which an attorney’s loyalty to, or efforts on behalf of, a client
are threatened by his responsibilities to another client or a
third person or by his own interests.” (People v. Bonin (1989)
47 Cal.3d 808, 835.) “Although ‘most conflicts of interest seen
in criminal litigation arise out of a lawyer’s dual representation
of co-defendants, the constitutional principle is not narrowly
confined to instances of that type.’ [Citation.] Thus, a conflict
may exist ‘whenever counsel is so situated that the caliber of
his services may be substantially diluted.’ ” (Hardy, at pp. 135–
136.) “The determination whether to grant or deny an attorney’s
motion to withdraw as counsel of record lies within the sound
discretion of the trial court, having in mind whether such
withdrawal might work an injustice in the handling of the case.”
(Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)
We review a a trial court’s refusal to grant a motion to withdraw
for an abuse of discretion. (People v. Sanchez (1995) 12 Cal.4th
1, 37, disapproved of on another point by People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22.)
Palomino has not shown the court abused its discretion
here. The court’s statements suggest it denied counsel’s motion
to withdraw because it believed Palomino was engaging in
gamesmanship and any breakdown in the attorney-client
relationship was reconcilable. The record supports the court’s
findings, which provided sufficient grounds to deny the motion.
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The California Supreme Court has stated a “defendant
‘cannot simply refuse to cooperate with his appointed attorney
and thereby compel the court to remove that attorney.’ ” (People
v. Clark (2011) 52 Cal.4th 856, 918 (Clark); see People v. Smith
(1993) 6 Cal.4th 684, 696–697 [“a defendant may not force the
substitution of counsel by his own conduct that manufactures
a conflict”].) There is ample evidence that Palomino was
attempting to do precisely that. Palomino retained defense
counsel sometime around September 2022, and counsel
represented him without significant issue for nearly a year.
According to counsel, the conflict “ripened” during a conversation
with Palomino on the eve of trial, shortly after the court denied
a motion to substitute counsel because it would have required a
significant delay in trial. Although counsel revealed few specifics
about the nature of the conflict, he suggested the primary issue
was Palomino’s unwillingness to cooperate with his defense.
On this record, the court reasonably could have concluded
Palomino intentionally created the conflict to delay the trial
and circumvent the court’s order denying the request to
substitute counsel.
The court also reasonably could have concluded the
conflict with counsel was not irreconcilable. Palomino’s refusal
to cooperate with counsel was a matter entirely within his own
control. The court reasonably could have determined he was
likely to cooperate in the future—and therefore cure the conflict
—once it became clear his efforts to force a substitution of counsel
would not be successful. The fact that counsel did not renew
the motion during trial suggests that was the case. Although
Palomino raised the issue again in a motion for a new trial, he
did not identify ways in which the conflict manifested during
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trial. Nor has Palomino done so on appeal. On this record,
the court did not abuse its discretion. (See People v. Barnett
(1998) 17 Cal.4th 1044, 1086 [a court is not required to find
an irreconcilable conflict exists “ ‘if the defendant has not made
a sustained good faith effort to work out any disagreements
with counsel and has not given counsel a fair opportunity
to demonstrate trustworthiness’ ”].)
Palomino suggests the trial court was required to accept
counsel’s representation of an irreconcilable conflict that
mandated his withdrawal. We disagree. “Although counsel’s
evaluation of the attorney-client relationship is important
[citations], it is not binding in the face of the court’s own
observations and appraisal.” (Clark, supra, 52 Cal.4th at p. 918.)
Here, the court seemed to accept counsel’s representation that
he had a conflict with Palomino. However, the court was not
required to accept counsel’s characterization of the conflict as
irreconcilable or as otherwise requiring withdrawal. Instead,
the court was free to come to its own conclusion based on its
observations of the parties and their interactions, as well as
the surrounding circumstances.
Palomino’s reliance on Aceves v. Superior Court (1996)
51 Cal.App.4th 584 is misplaced. In Aceves, a deputy public
defender moved to withdraw because of a conflict with the
defendant. According to the deputy, the defendant made a
statement that was impossible to ignore and that “caused
an absolute, irretrievable breakdown in the attorney-client
relationship such that no member of the public defender’s office
could represent” him going forward. (Id. at pp. 588–589.) The
deputy said he could not provide more specific information about
the conflict because it would require disclosure of confidential
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information. (Ibid.) The trial court accepted the deputy’s
representations as honest. However, it denied the motion
because it was unsatisfied with the lack of specific information
about the conflict. (Id. at p. 589.) The appellate court reversed,
explaining, where “counsel maintains he must step down because
of a disabling conflict, the conflict concededly involves privileged
communications and the trial court admittedly accepts counsel’s
representations, the court may not deny the motion to withdraw.”
(Id. at p. 596.)
Aceves is distinguishable. Here, unlike in Aceves, the trial
court did not deny the motion because defense counsel failed
to provide specific information about the nature of the conflict.
Instead, the court denied the motion because it concluded
Palomino created the conflict as an act of gamesmanship and the
breakdown of the attorney-client relationship was reconcilable.
As we have discussed, the record supports the court’s findings
on those issues. Under these circumstances, the court did
not abuse its discretion by denying counsel’s motion.
2. Palomino has not shown ineffective assistance
of counsel
Palomino argues defense counsel provided ineffective
assistance by failing to file a motion to sever. As we understand
his argument, Palomino contends defense counsel should have
moved to sever the two unlawful possession of a firearm charges
—Count 2 and Count 3—from the murder charge—Count 1.
Under either the federal or state Constitution, the
“benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the [proceedings] cannot be
relied on as having produced a just result.” (Strickland v.
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Washington (1984) 466 U.S. 668, 686; see In re Valdez (2010) 49
Cal.4th 715, 729.) To establish a claim for ineffective assistance
of counsel, a defendant must prove (1) that his lawyer’s
performance was deficient because it fell below an objective
standard of reasonableness; and (2) that absent those errors,
a different outcome was reasonably probable, meaning a
probability sufficient to undermine confidence in the outcome.
(People v. Cunningham (2001) 25 Cal.4th 926, 1003
(Cunningham).)
Section 954 authorizes the joinder of charged offenses
connected together in their commission or belonging to the same
class of crimes. (§ 954.) “[B]ecause consolidation or joinder of
charged offenses ordinarily promotes efficiency, that is the course
of action preferred by the law.” (Alcala v. Superior Court (2008)
43 Cal.4th 1205, 1220 (Alcala); People v. Manriquez (2005)
37 Cal.4th 547, 574 (Manriquez).) Offenses may be joined
even if they “ ‘ “do not relate to the same transaction and were
committed at different times and places . . . against different
victims.” ’ ” (Alcala, at p. 1218, italics omitted.)
Where the statutory requirements for joinder are satisfied,
trial courts have broad discretion to grant or deny a defendant’s
motion to sever. (See Alcala, supra, 43 Cal.4th at p. 1221.)
However, 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 charges are unusually
likely to inflame the jury against the defendant; and (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 of the charges. (Manriquez, supra, 37 Cal.4th at p. 574.)
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Palomino has not shown defense counsel provided
ineffective assistance by failing to move to sever the unlawful
possession charges. At the outset, some of Palomino’s arguments
seem to arise out of the mistaken belief that Count 2 concerned
the nine millimeter firearm police found in a motel room
on June 14, 2018. The People did not charge Palomino with
possession of the motel firearm, a point defense counsel made
clear to the jury during trial. Count 2 instead charged Palomino
with unlawful possession on June 5, 2018, the day of the murder
alleged in Count 1. Palomino does not specifically argue the
court was required to sever that charge from the murder charge,
nor could he. The two offenses were connected together in their
commission, and the evidence supporting each would have been
cross-admissible. Accordingly, we reject any contention that
counsel provided ineffective assistance by failing to move to sever
Count 2 from Count 1. (See Cunningham, supra, 25 Cal.4th
at pp. 983–986 [trial court did not abuse its discretion in not
severing unlawful firearm possession count from murder count,
where same gun was used in both crimes]; People v. Soper (2009)
45 Cal.4th 759, 774–775 [the cross-admissibility of evidence
“alone is normally sufficient to dispel any suggestion of prejudice
and to justify a trial court’s refusal to sever properly joined
charges”].)
Nor has Palomino shown counsel provided ineffective
assistance in failing to move to sever Count 3 from the murder
charge.2 Count 3 charged Palomino with unlawful possession
2 Palomino does not directly argue counsel should have
moved to sever the two unlawful possession charges from one
another. Therefore, we do not consider that issue.
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of a .45 caliber handgun on June 14, 2018, the day police arrested
him.
We need not decide whether counsel should have moved
to sever Count 3 because Palomino has not shown prejudice.
Palomino does not contend the People’s evidence supporting
Count 3 was likely to inflame the jury against him. Nor does
he contend the strength of the charge was significantly different
from the strength of the murder charge. Instead, Palomino
argues joinder of Count 3 was prejudicial because it allowed the
jury to learn he could not lawfully possess a firearm, was willing
to defy firearm laws, and possessed a firearm similar to the one
used to kill Lopez.3 According to Palomino, that evidence may
have suggested to the jury he “was a bad actor[ ] capable of
all manner of misconduct including Lopez’s murder by use
of a firearm.”
Palomino has not shown prejudice on these grounds.
Even without the joinder of Count 3, the jury would have heard
overwhelming evidence that Palomino unlawfully possessed a
firearm close in time to the killing. In connection with Count 2,
the prosecutor played for the jury video—captured moments
before the killing—showing Palomino holding an object that
closely resembled a firearm. The jury also heard testimony from
two police officers—each with knowledge of firearms—that the
object appeared to be a handgun. The parties stipulated that
Palomino could not lawfully possess a firearm at that time.
3 Contrary to Palomino’s contentions, the jury did not learn
he was a convicted felon. The parties stipulated that Palomino
could not lawfully possess a firearm, but they did not specify
the reason. Neither the instructions nor the verdict forms
expressed or implied Palomino was a felon.
13
The People’s evidence on this issue was so strong that defense
counsel conceded during closing argument that jurors might
conclude Palomino was holding a handgun. Accordingly,
even without the joinder of Count 3, the jury would have been
presented with overwhelming evidence that Palomino could not
lawfully possess a firearm, was willing to defy firearm laws,
and had possessed a similar firearm as the one used to kill Lopez
moments before the killing. There is no reasonable possibility
the evidence of his possession of a firearm more than a week later
affected the jury’s verdict on the murder count.
On this record, Palomino has not shown a different outcome
was reasonably probable but for counsel’s failure to move to
sever the charges. Accordingly, he has not shown he received
ineffective assistance of counsel. (See Cunningham, supra,
25 Cal.4th at p. 1003.)
Walker v. Superior Court (1974) 37 Cal.App.3d 938, is
distinguishable. In Walker, the court held it was an abuse of
discretion not to sever an armed robbery charge from a charge
for unlawful possession of a firearm allegedly committed more
than 100 days after the robbery. (Id. at pp. 940, 943.) The
court explained, because the weapons charge required proof
the defendant was a convicted felon, joinder would be “more
likely to result in prejudice to the defendant than mere evidence
that defendant possessed a concealable weapon at some time.”
(Id. at p. 942.) Here, there was no similar risk of prejudice.
At the outset, the parties stipulated Palomino could not lawfully
possess a firearm. Therefore, the People did not present evidence
that Palomino was a convicted felon in connection with Count 3.
In any event, even if the court had severed Count 3, the jury
still would have heard evidence that Palomino unlawfully
14
possessed a firearm in connection with Count 2. Under these
circumstances, Palomino cannot show the failure to sever
Count 3 was prejudicial.
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, Acting P. J.
We concur:
HANASONO, J.
KARNOW, J.
Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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