P.
v. Santana

 

 

 

 

Filed
10/15/13  P. v. Santana
CA2/8

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

> 

California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
EIGHT

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   JIMMY SANTANA,               Defendant and Appellant.

B241806         (Los Angeles County       Super. Ct. No. GA072199)

 

APPEAL from a judgment of the href="http://www.fearnotlaw.com/">Superior Court of Los Angeles County.

Candace J. Beason, Judge. 
Affirmed.

 

Law Offices of Michael R. Kilts,
Michael R. Kilts and Joseph P. Farnan for Defendant and Appellant.

 

            Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys
General, for Plaintiff and Respondent.

 

_________________________________

 

            Jimmy
Santana appeals from a judgment which sentenced him to 40 years to life in
state prison for a drive-by shooting that left a 16-year-old victim href="http://www.sandiegohealthdirectory.com/">unable to walk.  Santana asserts the trial court committed
multiple evidentiary errors.  He also
contends his constitutional rights were violated when href="http://www.mcmillanlaw.us/">trial testimony was read back to the jury
outside of his presence.  Last, Santana
contends the trial court improperly denied his request, made after trial but
before his sentencing, to substitute appointed counsel for retained
counsel.  We affirm.

FACTS

            The victim,
John Doe, was shot at close range on January
12, 2008, which left him paralyzed from the waist down.  Doe is African-American and was 16 years old
at the time of the shooting.  He was
riding his bicycle home on Peck Road
after buying snacks from a nearby store. 
He had noticed a burgundy-colored car turning onto a cross-street off of
Peck Road while he rode to
the store.  He saw the same car driving
towards him on Peck Road as
he left the store near sundown.  As he
cycled in front of the Calvary Grace Church, where he worked part-time as a
janitor, Doe heard the burgundy car pull up behind him.  The car’s passenger yelled, “Hey, fool.  Fuck Dirt Rock.”  Dirt Rock was a derogatory term for the Duroc
Crips, an African-American street
gang in Monrovia. 

            When the
car was arm’s distance away to his left, Doe saw the passenger balance a gun on
the passenger-side window.  The driver
concealed his face with his right arm and Doe could not identify him beyond the
description that he was a pale-skinned male. 
Doe recognized the passenger with the gun as Santana even though a black
beanie had been pulled down to his href="http://www.sandiegohealthdirectory.com/">eyebrows.  Doe had attended middle school with
Santana.  Santana fired the gun and Doe
was struck in his lower left torso and right buttock.  Doe lost feeling in his legs and fell to the
ground.  A driver stopped to call
911.  Soon thereafter, Doe’s father
arrived at the scene.  Doe then called
his mother and 911.  Doe did not tell his
father, mother or the 911 operator that he recognized the shooter.  Doe was being treated by emergency personnel
when Los Angeles Sheriff’s deputies arrived. 
An expended bullet was later found in the driveway of the church.  The bullet was determined to be either a .38
special or .357 magnum caliber, most likely fired from a revolver.  The bullet found at the scene was the same
caliber as the one removed from Doe at the hospital. 

            The deputy
testified that Doe was “vague” and seemed to move in and out of consciousness
while at the scene of the crime.  He
identified the shooter as a male Hispanic in a black car.  Doe was taken to Huntington
Memorial Hospital,
where his spleen and kidney were removed because they had been damaged by a
bullet.  Doe also suffered a spinal cord
injury from the shooting which caused paralysis from his pelvis to his feet.  Doe was placed on a ventilator and unable to
speak from January 12 until January
14, 2008.  He communicated
with the medical staff and his parents by writing notes.  In one note, he wrote, “I forgive
them.”  His first words upon removal of
the ventilator were, “I forgive the person who did this to
me . . . whoever did this to me . . .”  Doe did not identify the shooter to his
parents, investigating detectives or visitors during the first few days of his
stay at the hospital.   

            On January
17, Doe told detective Scott Schulze that he knew the shooter was Santana.  He  had
known Santana since junior high school. 
Although Santana was two years older, they attended the same gym
class.  Doe also saw Santana at street
fairs in Monrovia two or three
times after junior high school.  Doe
believed Santana was associated with Monrovia Varrio Nuevo (MNV) and that his
gang moniker was “Tuffy.”  School records
at Santa Fe Middle
School confirmed Doe’s recollection that he
attended school with Santana.  Doe then
picked Santana’s photograph out of a photographic six-pack. 

            Santana’s
home was searched on January 29, 2008.  In an upstairs bedroom, police found a
laminated poem hanging on the wall: 

“Most
streets are ruthless

Walk
down the wrong street you’ll end up toothless.

In
L.A. don’t step in their alley’s

Get
cut up, that’s how we do it in Cali.

 

All
the homies kick it in the park

We
vandalize the city when it’s dark

Trying
to stay away from these sorry mark’s

I’m
to [sic] deep in the streets I have
lot’s [sic] of heart

 

Hearing
gun shots by the hour

Hoping
I don’t end up in the twin towers

Enemies
run from me they’re all cowards

Because
I’m the shot caller with lots of power

 

I
said it before the streets aren’t right

Look
up and down no cops in sight

See
my enemies let’s start a fight

That’s
how it is for me every night.

-By
Jimmy Santana”

 

            Santana
was arrested and during the booking process, he told Detective Schulze that he
had been a member of MNV with the moniker of Little Tuffy but that he was no
longer active.  Santana’s residence was
three miles from the scene of the shooting. 


            Santana was
charged with three felony counts:  (1)
attempted premeditated murder (Pen. Code §§ 664, 187 subd. (a))href="#_ftn1" name="_ftnref1" title="">[1];
(2) shooting from a motor vehicle (§ 12034, subd. (c)); and (3) assault with a
firearm (§ 245, subd. (a)(2)).  The
information also included firearm and gang enhancement allegations as to each
of the three counts.  (§§ 186.22, subds.
(b)(1) – (4), 667.5, subd. (c)(8), 12022.5, 12022.53, subds. (b)-(e).)  At the preliminary hearing, Doe identified
Santana as the shooter.  Although he had
no doubts that Santana was the shooter, 
Doe admitted, “when I got shot, it was mostly a blind side.  I looked—it was so quick when everything
happened, like I heard—when I saw—I saw a little Hispanic out the window with a
gun . . .”  Detective
Schulze testified that Doe had said friends told him that Santana was the
shooter. 

            At trial in
2012, four years after the shooting, Doe described the shooting as presented
above and again identified Santana as the shooter.  He explained that he did not identify Santana
at the scene of the crime because he was having trouble breathing and wanted to
save his breath.  Although the deputies
asked him several times who shot him, Doe did not answer the deputies’
questions because he was afraid he was going to die.  He also failed to identify the shooter at the
hospital because he wanted to recover from his injuries.  He waited until “[he] felt the time was
right, when [he] actually had time to think to
[him]self . . .”  The prosecution
also presented testimony from several gang experts regarding MNV, a Hispanic
gang, and its feud with the Duroc Crips. 
Evidence was elicited showing Santana’s involvement with MNV.   

            The defense
presented testimony from an expert on eyewitness identification, who explained
that various factors, such as stress, delay and cross-racial identification,
could result in identifications that were less accurate.  Santana’s mother and brother also testified
that Santana never left their home the day of the shooting. 

            Santana was
found guilty of all three counts and the jury further found to be true each of
the firearm and gang enhancement allegations. 
Santana was sentenced to 15 years to life in state prison for the
attempted murder conviction and a consecutive 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d).  The sentences on the remaining counts and
enhancements were stayed.  Applicable fees
and fines were imposed.  Santana timely
appealed. 

DISCUSSION

            On appeal,
Santana asserts the trial court committed error in admitting prejudicial and
tainted evidence, limiting the defense expert’s testimony and allowing
testimony to be read to the jury outside of his presence.  He also contends he should have been allowed
to substitute in retained counsel prior to sentencing to evaluate the case for
a new trial motion.  None of these issues
warrant reversal. 

I.          Doe’s Identification Testimony Was
Properly Admitted

            Santana
argues that reversal is required due to “the erroneous admission of John Doe’s
in-court identification [which] deprived appellant of due process of law.”  Santana contends that Detective Schulze’s
comments were improper and created a “substantial likelihood of misidentification.”  (Neil
v. Biggers (1972) 409 U.S. 188, 202 (Biggers).)  We disagree. 


 

            Prior to
Doe’s second day of testimony, defense counsel asked the court to exclude Doe’s
in-court identification of Santana on the ground it was tainted.  The motion arose from a conversation
Detective Scott Schulze had with Doe the previous day while he drove Doe to
court.  Detective Schulze was also the
detective assigned to investigate Doe’s shooting.  As they spoke about what to expect in the
courtroom, Detective Schulze told Doe, “They’re going to ask you to identify
the suspect in court.  He may look
different now.  It’s still the guy, or
it’s still the same guy.”  At lunch,
this conversation was mentioned to the prosecutor and she reported it to
defense counsel.  Defense counsel
recalled that the prosecutor also said Detective Schulze told Doe, “Don’t worry
about it.  It will be the same
person.”  The trial court allowed
Doe and Detective Schulze to be questioned outside of the jury’s presence
pursuant to Evidence Code section 402. 
Detective Schulze denied telling Doe, “People change, but don’t worry
about it, he’ll be in court.”  He
testified that he wanted to explain to Doe the procedures of the court and that
he would probably be asked to identify someone in court.  Doe recalled that Detective Schulze told him,
“When you’re identifying him, just know that there may be some changes, like
alteration in appearance.”  He confirmed
that Detective Schulze did not influence his in-court identification of
Santana.   

            The trial
court denied the motion to exclude, agreeing with the prosecutor that any
defects in the testimony went to its weight and not its admissibility.  After the conclusion of the defense’s case,
the parties reached a stipulation about what 
Detective Schulze told Doe, quoted above.  The trial court advised the jury of it and
that the parties’ recollection differed about whether Schulze also told Doe,
“Don’t worry.” 

            In support
of his contention, Santana relies on a series of decisions involving
police-arranged identification procedures, Foster
v. California (1969) 394 U.S.
440 (Foster), Biggers, supra, 409 U.S.
188 and Manson v. Brathwaite (1977)
432 U.S. 98 (>Brathwaite).  These cases are instructive on when due
process requires suppression of an eyewitness identification tainted by police
arrangement.  The Supreme Court has held
that due process concerns arise only when law enforcement officers use an
identification procedure that is both suggestive and unnecessary.  (Brathwaite,
at pp. 107, 109; Biggers, at p.
198.)  Even then, however, suppression of
the resulting identification is not the inevitable consequence.  (Brathwaite,
at pp. 112-113; Biggers, at pp.
198-199.)  Instead, due process requires
courts to assess, on a case-by-case basis, whether improper police conduct
created a “substantial likelihood of misidentification.”  (>Biggers, at p. 202.)  Reliability of the eyewitness identification
is the “linchpin” of that evaluation.  (>Brathwaite, at p. 114.)  It is only where the “indicators of [a
witness’] ability to make an accurate identification” are “outweighed by the
corrupting effect” of law enforcement suggestion that the identification should
be suppressed.  (Id. at p. 116.)  Otherwise,
the identification, assuming no other barrier to its admission, should be
submitted to the jury.  (>Ibid.) 
Among the factors to be considered are: “the opportunity of the witness
to view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time between the crime and
the confrontation.”  (>Id. at p. 114.)

            Applying
this “totality of the circumstances” approach, the United States Supreme Court
held in Biggers that law
enforcement’s use of an unnecessarily suggestive showup did not require
suppression of the victim’s identification of her assailant.  (Biggers,
supra, at pp. 199-200.)  The victim’s identification was reliable: she
saw her assailant for a considerable period of time under adequate light,
provided police with a detailed description of her attacker long before the
showup, and had “no doubt” that the defendant was the person she had seen.  (Ibid.)  Similarly, the court concluded in >Brathwaite that police use of an
unnecessarily suggestive photo array did not require exclusion of the resulting
identification.  (Brathwaite, supra, at pp. 114-117.) 
The witness, an undercover police officer, viewed the defendant in good
light for several minutes, provided a thorough description of the suspect, and
was certain of his identification.  (>Id. at p. 115.)  Hence, the “indicators of [the witness’]
ability to make an accurate identification [were] hardly outweighed by the
corrupting effect of the challenged identification itself.”  (Id.
at p. 116.)

 

            By contrast, in Foster, supra, 394 U.S.
at p. 443,  the high court held that the
suggestive elements in the identification procedure made it all but inevitable
that the witness would identify the accused whether or not he was, in fact,
“the man.”  The court further found that
the procedure so undermined the reliability of the identification as to violate
due process.  The defendant, about six
feet in height, was placed in the line-up with two other men, both six or seven
inches shorter in height.  (>Id. at p. 441.)  He wore a leather jacket similar to one the
witness said he observed under the overalls worn by the robber.  When the witness could not identify the
accused, he was brought into a room and seated across the table from the
witness in a one-to-one show up.  Even
then, the witness was uncertain as to whether the accused was one of the
robbers.  Some seven to ten days later,
the accused was again placed in a line-up of five men with neither of the
shorter men in the previous line-up included. 
It was not until this time that the witness made the positive
identification.  (Ibid.)  Moreover, the police
repeatedly said to the witness, “‘This is
the man.’”  (Id. at p. 443.)

            Even
assuming Detective Schulze’s comment to Doe was unnecessarily suggestive, we
find Doe’s identification was reliable under the totality of the circumstances
approach.  As in Biggers and Brathwaite,
the evidence showed that Doe was certain of his identification at the hospital
five days after the shooting, at the preliminary hearing a few months later,
and at the trial four years later.  He
confirmed at trial he was “one hundred percent” confident that Santana was the
person who shot him.  He first identified
Santana by name, described him and then picked him out of a photographic
lineup.  Also, Doe was able to see
Santana at arm’s length while it was still daylight.  Although Santana’s beanie was pulled over his
forehead, partially obscuring his face, Doe was sufficiently familiar with his
features to recognize him. 

Santana contends that Doe’s
identification was not reliable for a number of reasons.  First, there were issues with Doe’s ability
to perceive the shooter:  it was nearing
sunset, Doe was not wearing his glasses, the car was slightly behind and to
Doe’s left side or “blind side” and Santana was wearing a beanie pulled low
over his forehead.  Second, Doe failed to
identify Santana for five days, during which time, there was some evidence that
his friends may have influenced his identification.  Third, Detective Schulze influenced Doe’s
identification during the photographic lineup by advising Doe that “there’s one
person in the picture that you’re interested in and the other five have nothing
to do with the case.” 

            We are not
convinced any of these circumstances renders Doe’s identification so unreliable
as to amount to a violation of due process. 
Instead, they are merely facts that go to the weight of the evidence,
not its admissibility.  Certainly, the
jury was provided with extensive information about the identifications with
which to make its own reliability determination.  Defense counsel conducted an extensive
cross-examination of Doe, eliciting testimony from him about whether he wore
his glasses that day, what the lighting was like, how quickly everything
happened and the reasons for his failure to identify Santana initially.  Defense counsel also questioned Doe about his
conversation with Detective Schulze. 
These issues were raised again in closing arguments.  Therefore, the jury had before it a thorough
record of why the identification might be untrustworthy.

            “[E]vidence
with some element of untrustworthiness is customary grist for the jury
mill.  Juries are not so susceptible that
they cannot measure intelligently the weight of identification testimony that
has some questionable feature.”  (>Brathwaite, supra, at p. 116.) 
Santana’s due process rights were not violated by the submission of the
identification evidence, with all of defendant's caveats, to the jury. 

II.        Gang
Evidence Was Properly Admitted

            Santana
next contends he was prejudiced by the admission of irrelevant and cumulative
gang evidence.  In particular, Santana
requested the exclusion of: the poem found in his home; the testimony from
Monrovia Police Officer Sergio Bostick regarding his contacts with Santana; and
his booking photos from August, 30,
2007 and January 2008. 
According to Santana, this gang evidence allowed the jury to infer he
was a threat to the community and should be punished for being a bad
person.  Santana asserts the trial court
erred under Evidence Code section 352 when it admitted this evidence.  We disagree.

            Evidence
Code section 352 provides: “[t]he court in its discretion may exclude evidence
if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.”  Prejudice as used
in Evidence Code section 352 refers to the harm of prejudging on the basis of
extraneous factors.  (>People v. Zapien (1993) 4 Cal.4th 929,
958.)  It is not synonymous with
damaging.  (People v. Doolin (2009) 45 Cal.4th 390, 437.)  “‘[E]vidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate the point
upon which it is relevant, but to reward or punish one side because of the
jurors’ emotional reaction.  In such a
circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose.’  [Citation.]” 
(Id. at p. 439.) 

            We find the
trial court exercised its discretion appropriately in admitting the challenged
evidence.  The case against Santana
involved gang-related offenses.  The
People were required to prove the underlying felony was committed: 1) for the
benefit of, at the direction of, or in association with any criminal street
gang, and 2) with the specific intent to promote, further, or assist in any
criminal conduct by gang members.  (§
186.22, subd. (b)(1).)  In addition,
showing the jury that Santana associated with the MNV gang tended to establish
motive and intent in the shooting.  The
People are entitled to “introduce evidence of gang affiliation and activity where
such evidence is relevant to an issue of motive or intent.”  (People
v. Funes (1994) 23 Cal.App.4th 1506, 1518.) 
“[B]ecause a motive is ordinarily the incentive for criminal behavior,
its probative value generally exceeds its prejudicial effect, and wide latitude
is permitted in admitting evidence of its existence.”  (People
v. Lopez (1969) 1 Cal.App.3d 78, 85; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 [gang activity or
membership admissible where “important to the
motive . . . even if prejudicial”].)  Each of the challenged pieces of evidence
added probative value which was not outweighed by its prejudicial effect.

            First, the
poem was relevant to show Santana’s familiarity with and commitment to gang
culture.  In particular, Santana showed a
willingness to initiate violence with his “enemies.”  He referred to himself as a “shot caller with
lots of power” whose “[e]nemies run from me . . .”  He also wrote, “See my enemies let’s start a
fight.”  The poem tended to support the
People’s theory that Santana shot Doe as part of a vendetta against a rival
gang.  

            Likewise,
Bostick’s testimony was properly admitted. 
At trial, Bostick testified that he encountered Santana with known MNV
gang members several times at MNV hangouts in 2003 and 2004.  Showing the jury that Santana associated with
other documented members of the MNV gang was necessary to prove that Santana
had a long history with the gang and belied his statement to Detective Schulze
that he was no longer a member. 
Therefore, it had little potential for evoking an emotional bias against
Santana or for causing the jury to convict him apart from the evidence of his
guilt.  That it may have been cumulative
to other gang evidence does not render it so prejudicial as to warrant
exclusion.  (See People v. Scheid (1997) 16 Cal.4th 1, 16 [“it is immaterial for
purposes of determining the relevance of evidence that other evidence may
establish the same point”].) 

            Neither are
we convinced that the admission of Santana’s booking photographs should have
been excluded under Evidence Code section 352. 
These photographs related to a January
26, 2008 traffic stop, an August
3, 2007 police contact and the January 29, 2008 arrest. 
When questioned about the necessity of having three photographs of Santana
admitted, the prosecutor explained that the January 26 and January 29
photographs showed what Santana looked like “as close to the shooting date as
possible.”  Also, the 2007 photograph was
the one used for the photographic six-pack. 
At closing, the prosecutor told the jury that the January 29 photograph
showed that Does’ description of Santana “as having a triangle patch of hair on
his chin and a slight mustache” was “absolutely correct.”  The prosecutor further explained that even
though Santana looked different in the photograph from 2007, Doe was able to
pick him out when it was presented to him in the photographic array.  These photographs tended to support Doe’s
identification of Santana.  They had a
legitimate purpose at trial and did not, as asserted by Santana, serve only to
“inflame[] the jury’s passions”. 

            We are also
not convinced that the photographs were improper character evidence under
Evidence Code section 1101(a).  Evidence
Code section 1101, subdivision (a), provides that “evidence of a person’s
character”—whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of conduct—“is inadmissible when offered to
prove [the person’s] conduct on a specified occasion.”  This prohibition, however, does not preclude
“the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact . . . other than
[the person’s] disposition to commit such an act,” including “motive,
opportunity, intent, preparation, [or] plan.” 
(Evid. Code, § 1101, subd. (b).) 
As discussed above, the challenged evidence was relevant to motive and
intent as well as the weight of Doe’s identification.  Accordingly, it was not precluded under
Evidence Code section 1101.  Compared to
their probative value, the challenged evidence was not so prejudicial as to
warrant exclusion.  The trial court acted
within its discretion in admitting the evidence.

III.       Defense
Expert’s Testimony Was Not Limited

            Santana
next argues that he was deprived of his right to present a full defense when
the trial court limited the testimony of his eyewitness identification
expert.  Santana contends the trial court
limited the defense to generalized questions “untethered” to the facts of the
case when it sustained the prosecutor’s objection to a hypothetical.  The record disproves Santana’s
characterization of the proceedings. 

            Prior to
trial, the People moved to exclude or limit testimony from the defense
eyewitness expert on the ground that this case involved a victim who knew the
defendant before the shooting and was not the typical identification of a
stranger.  The motion in limine was
denied.  However, the trial court ruled
that “[c]ertainly he can talk about cross-racial identification, but he should
not be allowed to offer an opinion as to the eyewitness in this case as being
unreliable since we have an African-American victim and the defendant who is
Hispanic.”   

            During
examination of the defense expert, counsel asked, “You had mentioned earlier
the idea of suggestibility. 
Hypothetically, if an investigating officer is transporting—”  The People objected and at a conference at
sidebar, the following colloquy occurred:

“[Prosecutor]:  Your honor, I think we’ve agreed that he’s
not to make an accuracy determination of an identification in this case, and
that’s why counsel keeps raising these hypotheticals.

[Defense Counsel]:  I’m talking about suggestibility.  The facts are that the investigating officer,
as well as you, will be testifying to the fact that this officer told a witness
on the way to court that the person would be there.  I want to know, does that impact the
identification.

The Court:  Or could it.

[Prosecutor]:  But, your honor, if he’s allowed to put those
facts in evidence, he’s testifying to the accuracy of the identification in
this case.  He has no idea about anything
in this case.  So if he wants to talk
about suggestibility, that’s fine.

[Defense Counsel]:  I have to give him a hypothetical.  The hypothetical has to be–

[Prosecutor]:  I disagree.

The Court:  You can ask him if—could that have an impact.


[Defense Counsel]:  Certainly.

The Court:  Then we’ll go from there.”

            The record
shows that the trial court did not sustain the People’s objection with regard
to the hypothetical involving suggestibility. 
Indeed, the record shows that defense counsel was permitted to ask
hypothetical questions relating to the facts of the case.  There was no error.

IV.       No
Prejudice Resulted From Santana’s Absence at the Readback

            Santana
further argues that he was deprived of his right to be personally present at
trial when testimony was read back to the jury. 
The jury requested readbacks of “John Doe’s testimony re: minutes prior
to shooting” and “People’s 25, testimony from Detective Shulze describing the six
pack.”  The court reporter read back the
relevant portions of the transcript with all jurors, both counsel, the reporter
and the courtroom deputy present. 
Santana was not present and it does not appear he waived his right to be
present at the readback.  He contends
that the trial court violated sections 977href="#_ftn2" name="_ftnref2" title="">>[2]
and 1043,href="#_ftn3" name="_ftnref3" title="">[3]
article I, section 15 of the California Constitution and the Sixth and
Fourteenth Amendments to the federal Constitution.

            There is no
federal or state constitutional violation when a readback occurs in a
defendant’s absence and without a waiver. 
(People v. Cox (2003) 30
Cal.4th 916, 963; People v. Ayala
(2000) 23 Cal.4th 225, 288.)  Instead, a
defendant’s right to be present during a readback is based on statute, sections
977 and 1043 in particular.  Thus, any
error “‘is reversible only if it is reasonably probable the result would have
been more favorable to defendant absent the error.’  [Citation.]” 
(People v. Moon (2005) 37
Cal.4th 1, 21.)  Nothing in the record
indicates that Santana’s presence would have assisted the defense.  Though Santana asserts that he could have
“assured that cross-examination had been read as well as direct examination,”
that the readback was “accurate” and helped create a “clear” record, there is
no indication the readback was tainted in any way.  Indeed, defense counsel was present at the
readback and made no objection.  The
implication that the readback was not accurate or clear is entirely
speculative.  Because Santana provides no
basis on which we could conclude the result of his trial would have been
different had he been present at the readback (see People v. Horton
(1995) 11 Cal.4th 1068, 1121), we find the violation of section 977 was
harmless.

 

 

V.        Cumulative
Effect

            Santana
argues that the various alleged errors described above, considered individually
or in combination, were prejudicial.  We
have already rejected most of these claims on the merits.  We also conclude that any errors, considered
together, did not substantially prejudice defendant or preclude a fair
trial.  We see no basis for reversal.

VI.       Attorney
Substitution

            Santana
next contends he was denied his Sixth Amendment right to counsel of choice when
the trial court denied his motion to substitute in retained counsel prior to
sentencing.  We disagree.

            After the
verdicts were returned on February 2,
2012, defense counsel moved to void the jury’s verdict under
section 1118.1.href="#_ftn4" name="_ftnref4"
title="">[4]  The trial court tentatively denied the motion
and set sentencing and post-trial motions to be heard on March 15, 2012, Santana filed a >Marsdenhref="#_ftn5" name="_ftnref5" title="">>[5]> motion on March 15, 2012, and sought to discharge his deputy public
defender.  That motion was heard and
denied.  After several continuances, the
hearing on sentencing and other post-trial motions was set for May 10, 2012.

            A motion
for substitution of retained counsel was filed on May 8, 2012, and the trial court heard arguments on it on May 10, 2012.  The trial court explained that “based on my
observations of Mr. Lewis [the public defender], that he gave a full, rigorous,
passionate defense of Mr. Santana.  And
at this juncture, I cannot imagine what allowing a substitution would do other
than allow Mr. Santana to remain in local custody as opposed to going to state
prison as is required.  [¶]  And my tentative does not cast any aspersions
on your selection of Mr. Kilts as your attorney.  I have known him for a number of years and
believe he, as Mr. Lewis, is an excellent attorney.  But I don’t know what would be achieved other
than having him remain in local housing.”    

            Kilts
explained that Santana had a right to representation of his own counsel at
every stage.  His substitution was for
the purpose of reviewing the case with “fresh eyes” to see if there were any
grounds for a motion for a new trial.  If
he concluded there were none, they would proceed with sentencing.  After further argument by Kilts, the trial
court denied the substitution request and stated, “there doesn’t seem to be any
reason to allow the substitution.”  Only
after the denial of the motion to substitute retained counsel did the public
defender request a brief continuance. 
The sentencing hearing was then continued to June 4, 2012, to allow Lewis and Santana’s family
to prepare their statements. 

            “The right
to the effective assistance of counsel ‘encompasses the right to retain counsel
of one’s own choosing. 
[Citations.]’  (>People v. Holland (1978) 23 Cal.3d 77,
86, overruled on other grounds by People
v. Mendez (1999) 19 Cal.4th 1084, 1098-1099.)  Underlying this right is the premise that
‘chosen representation is the preferred representation.  Defendant’s confidence in his lawyer is vital
to his defense.  His right to decide for
himself who best can conduct the case must be respected wherever
feasible.’  (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615, fn.
omitted.)”  (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).)  “[T]he right of a
defendant to appear and defend with retained counsel of his own choice is not
absolute.”  (People v. Blake (1980) 105 Cal.App.3d 619, 624 (>Blake).) 
“The right to such counsel ‘must be carefully weighed against other
values of substantial importance, such as that seeking to ensure orderly and
expeditious judicial administration, with a view toward an accommodation
reasonable under the facts of the particular case.’  [Citation.]” 
(Courts, supra, 37 Cal.3d at
p. 790.)           Furthermore, “a
defendant who desires to retain his own counsel is required to act with
diligence and may not demand a continuance if he is unjustifiably dilatory or
if he arbitrarily desires to substitute counsel at the time of the trial.”  (Blake,
supra, at pp. 619, 623-624.)  “It is
likewise settled that it is within the sound discretion of the trial court to
determine whether a defendant shall be granted a continuance to obtain a
private counsel [citation]; that there is no mechanical test for deciding
whether a denial of a continuance is so arbitrary as to violate due process but
rather each case must be decided on its own facts [citations]; that the burden
is on the defendant to establish an abuse of discretion; and that in the
absence of showing an abuse, the reviewing court will not disturb the ruling of
the trial court.  [Citation.]”  (Blake,
supra, 105 Cal.App.3d at p. 624.)

            In >People v. Munoz (2006) 138 Cal.App.4th
860, 869 (Munoz), the appellate court
determined the trial court abused its discretion in denying a request to
substitute retained counsel before a sentencing hearing.  The case is instructive,  but only because the facts there were
different from this case.  The defendant
in Munoz wrote a letter to the judge
over a week before his scheduled sentencing hearing, indicating his desire to
discharge his retained attorney and asking for the court to appoint a new
attorney for him specifically so he could file a motion for new trial.  (Id.
at p. 864.)  The court discussed the
matter with the defendant and his retained lawyer at the scheduled hearing,
then trailed the matter several days, and allowed the defendant to submit
additional materials detailing his concerns about his lawyer.  The defendant submitted an additional
six-page letter outlining his concerns. 
(Id. at pp. 864-865.)  However, at the next hearing, the court
denied the substitution request, essentially incorrectly relying on the need
for a Marsden showing of incompetence,
but then continued the sentencing hearing another month on the court’s own
motion to allow defendant to solicit supporting letters from family and friends
to be considered for sentencing.  (>Munoz, supra, at p. 865.)

            The >Munoz court found the record did not
support a finding that substitution of counsel would have caused an
unreasonable delay in the proceedings, given that the court delayed the
proceedings over a month, during which time arguably a substituted attorney
could have been appointed and become sufficiently familiar with the case. >Munoz also cited the trial court’s
improper reliance on a Marsden
standard in denying the request, as well as the defendant’s detailed
explanation of his concerns with his retained lawyer negating any concerns the request
was sought solely for delay.  (>Munoz, supra, 138 Cal.App.4th at p.
870.)  Most significantly, >Munoz explained, “Most trials will not
be easily reviewed . . . , so delay and public expense will often be the
primary reasons for denying motions to replace counsel post trial.  The defendant must always be required to
justify this additional expense to the satisfaction of the trial court, . .
.  Delay and public expense will militate
for denial and we do not envision either a spate of such motions or a plethora
of successful ones.”  (>Id. at p. 868.) 

            After
reviewing the record in light of the foregoing principles, we conclude that the
trial court did not commit reversible error by denying Santana’s request to
substitute retained counsel.  Santana
appeared unsatisfied with appointed counsel as early as March 15, 2012, when he made a >Marsden motion, requesting that his
court appointed counsel be replaced with another court appointed counsel.  Yet, when sentencing was continued to April 26, 2012, Santana made no
request to retain private counsel at that time. 
In fact, it was not until three months after the verdicts were returned,
and two months after the Marsden
motion was made that Santana finally made a motion to substitute counsel. 

            At that
time, Kilts had not even looked at the transcripts of trial, and, indeed, had
no familiarity with the case.  He gave no
reason supporting his request to be substituted in except that another set of
eyes might be helpful.  He had no idea
whether or not he would even file a motion for new trial.  A substantial continuance would have been
necessary to ensure Kilts had sufficient time to review the trial transcripts
and research any potential issues before determining if a new trial motion was
warranted.  This was not an easy case to
review, as was the situation in Munoz.  Here, there was a lengthy trial with complex
legal and gang issues, complicated eyewitness identification, and extensive
expert testimony.

            The court’s
reference to the fact that defense counsel had done a good job at trial does
not indicate the court was improperly using a Marsden standard, but rather reflects the court's observation that
counsel had performed competently at trial and was present and capable to
properly handle the sentencing hearing.  In
addition, the trial court was unaware there was a need for a continuance to
allow the parties to gather letters of support until after it had denied the
substitution motion.  Because we do not
expect trial judges to be prescient, that was not a factor it was required to
take into consideration.

            Under these
circumstances, we do not believe the trial court acted so arbitrarily as to
violate defendant’s constitutional rights in denying his request to substitute
retained counsel.  Defendant’s request
was “unjustifiably dilatory”  (>Blake, supra, 105 Cal.App.3d at pp.
623-624) and the trial court properly weighed defendant’s right to counsel of
his choice “‘against other values of substantial importance, such as that
seeking to ensure orderly and expeditious judicial administration.’”  (Courts,
supra, 37 Cal.3d at p. 790.)

            We believe
the record here adequately supports the court’s exercise of discretion. 

We cannot conclude the refusal to grant the substitution, as
well as the continuance that would have been required, amounted to an abuse of
discretion.  (People v. Turner (1992) 7 Cal.App.4th 913, 919, fn. 8 [rejecting
assertion that trial court failed to make a finding that substitution would
have disrupted the judicial process because it was “perfectly obvious” a
substitution granted on the day of trial would mandate a continuance].)

DISPOSITION

            The
judgment is affirmed.

 

 

                                                                                                BIGELOW,
P. J.

We concur:

 

 

                        FLIER,
J.

 

 

                        GRIMES, J.