Filed 11/18/15 P. v. Davis CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C071567

         v.                                                                      (Super. Ct. No. 11F01075)

MARCUS JAMAL DAVIS,

                   Defendant and Appellant.




         Defendant Marcus Jamal Davis shot and killed Chester Jackson after an altercation
at a restaurant. A jury convicted defendant of first degree murder and found true the
allegations that defendant personally and intentionally discharged a firearm, proximately




                                                             1
causing great bodily injury or death to Jackson. The trial court sentenced defendant to
an aggregate of 50 years to life in prison.
       Defendant now contends (1) the trial court erred in instructing with CALCRIM
No. 625 (voluntary intoxication: effects on homicide crimes); (2) the trial court erred
in failing to instruct that even if there is insufficient provocation under an objective
standard, defendant’s subjective belief in the provocation could reduce first degree
murder to second degree murder; and (3) the trial court abused its discretion in denying
defendant’s request for continuance so that defendant could retain private counsel to file
a new trial motion based on ineffective assistance.
       We conclude (1) the trial court’s CALCRIM No. 625 instruction was a correct
statement of the law, but in any event any instructional error was harmless; (2) there is
no reasonable likelihood the jury understood that it could find defendant guilty of first
degree murder without assessing his subjective state of mind; and (3) the trial court did
not abuse its discretion in finding that defendant failed to demonstrate good cause for a
continuance.
       We will affirm the judgment.
                                      BACKGROUND
       Defendant twice moved from his table in a restaurant to an empty booth behind
Chester Jackson and then talked on defendant’s cell phone. A confrontation ensued.
Jackson had the equivalent of six alcoholic drinks in his system. Defendant had at least
eight alcoholic drinks over the course of the evening.
       According to James Powell and Torrien Smothers, defendant “wanted to start
something” when he aggressively said “what’s up” to Jackson, Powell, and Smothers
inside the restaurant. Defendant and Jackson said “what’s up” to each other. Jackson
told a friend, during a cell phone conversation, that he was “about to get into it” with
some guys. Defendant and everyone at Jackson’s table stood up. Powell was ready to hit



                                              2
defendant if Jackson swung at defendant. But codefendant Robert Earl Lucas intervened,
saying “it’s good” or “it’s cool.”
       Defendant, Lucas, and defendant’s friend Mary McCain told a very different story.
They said defendant moved from his table to a table behind Jackson to talk on his cell
phone when he received a call from his girlfriend. Defendant claimed no words were
exchanged between him and Jackson’s group at that time. Defendant later returned to
the table behind Jackson because he thought there was another call on his cell phone.
This time, Jackson turned around and said “what’s up” to defendant. Defendant
answered “what’s up” and returned to texting on his cell phone. Jackson asked defendant
why defendant kept going over to the empty table. Defendant said he stood up when
Jackson did. Then Jackson’s friends also stood up. Lucas went over to see what was
going on when he saw Jackson, Powell, Smothers and defendant stand up. Jackson asked
why defendant was over in his area on the phone. Defendant replied, “what’s the
problem?” Lucas got between defendant and Jackson, Powell, and Smothers. Lucas told
defendant to “keep cool.” Lucas told Jackson and his group “is everything cool?”
Jackson and his group answered everything was cool. Then Jackson left the restaurant
with Powell and Smothers.
       Unbeknownst to Lucas, defendant had walked out of the restaurant. Jackson
walked out of the restaurant a few seconds behind defendant. Powell and Smothers were
right behind Jackson. Jackson and defendant were fighting by the time Powell and
Smothers walked outside. Smothers ran over and tried to break defendant and Jackson
apart. Powell punched defendant twice in his side or back.
       Lucas testified McCain asked him to get defendant, who had gone outside. Lucas
saw Jackson and his group assaulting someone when he exited the restaurant. When he
realized Jackson and his group were assaulting defendant, Lucas yelled at them to get off
defendant.



                                            3
       A waitress heard raised voices outside the restaurant. She informed a manager
there was a group of people fighting outside. The waitress and the manager did not see
anyone with a gun. The manager did not see anyone with their hands up in the air.
       But according to Smothers and Powell, Lucas pulled out a handgun when he
exited the restaurant. Smothers said Lucas pointed the gun at Jackson, Powell, and
Smothers. And Jackson, Powell and Smothers put up their hands and said, “It’s cool.
It’s cool.”
       Powell said he ran away when he saw Lucas raise his gun. He maintained he did
not see or hear any gunshots. Smothers, on the other hand, claimed Lucas shot in the
direction of Jackson, Powell, and Smothers, and Powell and Smothers ran away after the
shot was fired. Smothers claimed he ran back when he realized Jackson was not behind
him, and he saw defendant point a handgun in Smother’s direction and shoot four or five
times. Smothers said he ran away again when those shots rang out.
       Lucas testified he did not have a gun. He said he was one to two feet away from
Smothers and about three feet away from defendant when he heard multiple gunshots.
Lucas did not see anyone with a gun. He ran to his vehicle.
       The restaurant manager ran to the front door of the restaurant when she heard
about four gunshots fired in succession. She did not hear a single gunshot before she
heard the multiple gunshots. She saw an African American man lying on the sidewalk
and about four people running away. The manager saw a man she later identified as
defendant walk toward the man lying on the sidewalk. According to the manager,
defendant pulled out a gun as he approached the man on the sidewalk and stopped when
he was one to two feet away from the man. The manager heard defendant say, “I told
you this mother fucking shit was going to happen.” The manager testified defendant
pointed his gun at the head of the man on the ground. The manager heard one gunshot
after she turned away. When she opened the door again, she saw defendant walking
away from the restaurant.

                                            4
       Surveillance video showed a dark colored sports utility vehicle leave at a high rate
of speed from the restaurant parking lot at about the time of the shooting. Lucas and
McCain left in Lucas’s black sports utility vehicle and were later joined by defendant.
Defendant told Lucas and McCain, “they hit me in the jaw.” He said someone “jumped”
him and took his chain. Police found defendant’s gold chain and medallion on the
sidewalk in front of the restaurant. The chain was broken.
       Jackson was unarmed at the time of the murder. He had multiple gunshot wounds
to his head, face, shoulder, forearm, neck, hip, thigh, and chest area. A forensic
pathologist opined that the wounds to the head, face and forearm were consistent with
Jackson lying on the sidewalk and the shooter firing at Jackson from above. One of the
gunshot wounds was inflicted when Jackson had his back to the shooter. Jackson died as
a result of the gunshot wounds to his head and torso.
       Police located a “live bullet,” a bullet that had not been fired from a firearm, at the
top of the stairs outside the front door of the restaurant. A live bullet can be expended
from a semi-automatic firearm if the shooter “racks the gun” or cycles a live round into
the firing chamber of the gun to prepare it for firing. A police detective opined the
shooter was standing on the upper landing area of the restaurant when the “live bullet”
was cycled out of the gun. Eight spent cartridges were also found at the front of the
restaurant. All the cartridges were fired from the same semi-automatic firearm. Two
10 millimeter bullets were recovered from Jackson’s body. The “live bullet” was the
same caliber and brand as the bullets recovered from Jackson’s body and the spent
cartridges recovered at the scene.
       Defendant and Lucas turned themselves in to police four days after the shooting.
Defendant did not have any injuries on his face, head, or body at that time.
       McCain told police defendant and Lucas both had guns on the evening before the
shooting. At trial, however, McCain denied that she saw defendant or Lucas with a gun.
But police found gunshot residue on the driver’s side floorboard of Lucas’s vehicle.

                                              5
        Defendant testified at trial. He admitted he shot Jackson. Defendant said he felt
someone punch him on the right side of his jaw as he was leaning over the outside railing
of the restaurant with his eyes closed. He then felt someone punch him from the back,
grab him and rip his chain off. He thought someone was robbing him. Defendant said he
did not know who was attacking him. He panicked and tried to pull his gun out of his
waistband when he was at the top of the landing area outside the restaurant. He fired his
gun as fast as he could until he had fired all the bullets. He intended to defend himself.
Defendant denied making the statement that the manager testified she heard the shooter
make.
        Defendant said when the shooting stopped, he saw someone on the ground.
He did not see anyone else shooting and did not see Lucas with a gun that night.
Defendant ran away because he was frightened. He did not tell Lucas or McCain that
he shot someone. He kept his gun hidden from Lucas. He later threw the gun away.
        Lucas testified he had never seen defendant with a gun, and had no reason to
believe defendant had a gun at the restaurant.
        After a joint trial, the jury acquitted Lucas on all charges and lesser included
offenses. The jury found defendant guilty of first degree murder. (Pen. Code, § 187,
subd. (a).)1 The jury found true the allegations that defendant personally and
intentionally discharged a firearm, proximately causing great bodily injury or death to
Jackson. (§§ 12022.53, subds. (b), (c), (d).)
        The trial court sentenced defendant to 25 years to life on count one and imposed
an additional and consecutive 25 years to life sentence for the section 12022.53
allegation.




1 Undesignated statutory references are to the Penal Code.


                                                6
                                        DISCUSSION
                                               I
       Defendant contends the trial court erred in instructing with CALCRIM No. 625
(voluntary intoxication: effects on homicide crimes). Specifically, defendant argues the
trial court failed to instruct the jury that evidence of voluntary intoxication is relevant to
his subjective state of mind for imperfect self-defense.
       Defendant asked the trial court to instruct the jury with CALCRIM No. 625.
Consistent with CALCRIM No. 625, the trial court instructed the jury: “You may
consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way.
[¶] You may consider that evidence only in deciding whether the defendant acted with an
intent to kill or the defendant acted with deliberation and premeditation. [¶] A person is
voluntarily intoxicated if he or she becomes intoxicated by willingly using any
intoxicating drug, drink or other substance knowing that it could produce an intoxicating
affect [sic] or willingly assuming the risk of that affect [sic]. [¶] You may not consider
evidence of voluntary intoxication for any other purpose.”
       CALCRIM No. 625 is a correct statement of the law. (§ 29.4; People v. Timms
(2007) 151 Cal.App.4th 1292, 1298 (Timms).)2 Evidence of voluntary intoxication is
admissible solely on whether the defendant actually formed a required specific intent or,
when charged with murder, whether the defendant premeditated, deliberated, or harbored
express malice aforethought. (§ 29.4, subd. (b).) Defendant did not ask the trial court to
clarify or modify the CALCRIM No. 625 instruction. Defendant may not argue on
appeal that an instruction correct in law was too general or incomplete and, thus, needed
clarification, without first requesting such clarification at trial. (People v. Rundle (2008)
43 Cal.4th 76, 145, disapproved on another point in People v. Doolin (2009) 45 Cal.4th



2 Section 22 was renumbered as section 29.4 with no substantive change effective
January 1, 2013. (Stats. 2012, ch. 162, § 119.)

                                               7
390, 421, fn. 22 [“Any lack of clarity regarding the consideration, if any, the jury should
give to evidence of voluntary intoxication, in the absence of a request for an instruction
on this subject, is of the defendant's doing, and on appeal he cannot avail himself of his
own inaction.”]; People v. Cleveland (2004) 32 Cal.4th 704, 750.)
       Defendant nevertheless contends he may raise his claim of instructional error on
appeal because the CALCRIM No. 625 instruction misstated the law and violated his
constitutional right to due process. We have already explained that the CALCRIM
No. 625 instruction was a correct statement of the law. In addition, defendant has not
met his burden in establishing a due process violation. In any event, any instructional
error was harmless.
       Murder is the unlawful killing of a human being with malice aforethought.
(§ 187, subd. (a).) Malice aforethought may be express or implied. (§ 188.) Express
malice is an intent to kill. (People v. Beltran (2013) 56 Cal.4th 935, 941 (Beltran).)
Malice is implied when a person willfully commits an act, the natural and probable
consequences of which are dangerous to human life, and the person knowingly acts with
conscious disregard for the danger to life that the act poses. (Id. at pp. 941-942.) The
killing of a human being with malice aforethought, willfulness, premeditation, and
deliberation is first degree murder. (§ 189.) The killing of a human being with malice
aforethought, but without willfulness, premeditation and deliberation is second degree
murder. (§§ 187, 189.) Voluntary intoxication can negate express malice, premeditation,
and deliberation and reduce a crime from first to second degree murder. (People v. Lam
(2010) 184 Cal.App.4th 580, 585; People v. Turk (2008) 164 Cal.App.4th 1361, 1376-
1377; Timms, supra, 151 Cal.App.4th at p. 1298.)
       Manslaughter is the unlawful killing of a human being without malice
aforethought. (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter
when he acts in a sudden quarrel or heat of passion or when he kills in unreasonable or
imperfect self-defense. (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore);

                                             8
People v. Rios (2000) 23 Cal.4th 450, 461; People v. Lasko (2000) 23 Cal.4th 101, 108.)
One who kills while holding an actual but unreasonable belief that he is in imminent
danger of death or great bodily injury and that it is necessary to defend himself (also
known as imperfect self-defense) does not harbor malice aforethought and commits
voluntary manslaughter, not murder. (Elmore, supra, 59 Cal.4th at p. 134; In re
Christian S. (1994) 7 Cal.4th 768, 773.) Whether the defendant actually held the
requisite belief for imperfect self-defense is to be determined by the trier of fact based on
all the relevant facts, including the defendant’s voluntary intoxication. (In re Christian
S., supra, 7 Cal.4th at p. 783; People v. Cameron (1994) 30 Cal.App.4th 591, 601,
superseded on another point by section 29.4.)
       The trial court correctly instructed that evidence of defendant’s intoxication was
relevant to whether defendant acted with an intent to kill or deliberation and
premeditation. (Timms, supra, 151 Cal.App.4th at p. 1298.) Regarding imperfect self-
defense, the trial court instructed the jury that defendant acted in imperfect self-defense if
he actually believed he was in imminent danger of being killed or of great bodily injury,
or if he was in imminent danger of being robbed and he actually believed the immediate
use of deadly force was necessary to defend against the danger, but at least one of those
beliefs was unreasonable. The trial court correctly stated that defendant was guilty of
voluntary manslaughter, not murder, if he killed a person because he acted in imperfect
self-defense. (Elmore, supra, 59 Cal.4th at p. 134; In re Christian S., supra, 7 Cal.4th at
p. 773.) The trial court told the jury to consider all circumstances as appeared to
defendant in assessing whether defendant acted in imperfect self-defense. All
circumstances as appeared to defendant would include a consideration of defendant’s
state of intoxication.
       Defendant did not argue to the jury that his state of intoxication affected his belief
in the need for self-defense. Further, there was compelling evidence defendant did not
act in imperfect self-defense. The restaurant manager’s testimony showed defendant

                                              9
fired his gun at Jackson with the intent to kill Jackson, and defendant did not actually
believe he was in imminent danger of death or great bodily injury when, after firing
several shots at and injuring Jackson, he returned to where Jackson was lying on the
sidewalk and fired a shot at Jackson’s head while stating, “I told you this mother fucking
shit was going to happen.” Apparently, the jury found this account of the shooting more
credible than defendant’s account.
       It is true that the prosecutor argued the jury could only consider voluntary
intoxication in deciding whether defendant acted with intent to kill or acted with
premeditation or deliberation and not for any other purpose. But the prosecutor made
that statement in the context of arguing that defendant intended to kill Jackson. The
prosecutor did not discuss voluntary intoxication in the context of imperfect self-defense.
       For all of these reasons, any error in the trial court’s instruction on voluntary
intoxication was harmless even under the Chapman v. California (1967) 386 U.S. 18
[17 L.Ed.2d 705] standard. (People v. Aranda (2012) 55 Cal.4th 342, 367 [under
Chapman, a federal constitutional error is harmless when the reviewing court determines
beyond a reasonable doubt that the error complained of did not contribute to the verdict;
reversal is required only when there is a reasonable possibility the error might have
contributed to the verdict].) We do not consider defendant’s ineffective assistance of
counsel claim because we have considered the merits of his instructional error claim and
conclude there is no prejudicial error.
                                              II
       Defendant also argues the trial court erred in failing to instruct that even if there
is insufficient provocation under an objective standard, defendant’s subjective belief in
the provocation could reduce first degree murder to second degree murder. He argues
the instructions given to the jury -- CALCRIM No. 522 (provocation: effect on degree
of murder) and CALCRIM No. 570 (voluntary manslaughter: sudden quarrel or heat



                                              10
of passion) -- erroneously suggested an objective standard of provocation applied to
reduce first degree murder to second degree murder.
       In reviewing a claim that the court’s instructions are misleading, we inquire
whether there is a reasonable likelihood the jury understood the challenged instructions in
the manner the defendant asserts. (People v. Hernandez (2010) 183 Cal.App.4th 1327,
1332 (Hernandez).) We consider the instructions as a whole and assume the jurors are
intelligent persons capable of understanding and correlating all the instructions. (Ibid.)
We interpret the instructions in a manner consistent with the judgment if the
instructions are reasonably susceptible to such interpretation. (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111-1112.)
       As we have explained, heat of passion precludes the formation of malice
aforethought and reduces an unlawful killing from murder to voluntary manslaughter.
(Beltran, supra, 56 Cal.4th at p. 942.) The heat of passion requirement for voluntary
manslaughter has subjective and objective components. (People v. Steele (2002)
27 Cal.4th 1230, 1252.) “The defendant must actually, subjectively, kill under the heat of
passion. [Citation.] But the circumstances giving rise to the heat of passion are also
viewed objectively.” (Ibid.) The facts and circumstances must be sufficient to arouse the
passions of an ordinarily reasonable person. (Id. at p. 1253.) “Heat of passion arises if,
‘ “at the time of the killing, the reason of the accused was obscured or disturbed by
passion to such an extent as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and from such passion
rather than from judgment.” ’ ” (Beltran, supra, 56 Cal.4th at p. 942; see Steele, supra,
27 Cal.4th at pp. 1252-1255.)
       Heat of passion arising from provocation can also negate premeditation and
deliberation and reduce a murder from first to second degree. (Hernandez, supra,
183 Cal.App.4th at p. 1332.) The test for whether provocation reduces the degree of a
murder is subjective. (People v. Jones (2014) 223 Cal.App.4th 995, 1000 (Jones);

                                             11
Hernandez, supra, 183 Cal.App.4th at p. 1332; People v. Fitzpatrick (1992)
2 Cal.App.4th 1285, 1295-1296.) “The issue is whether the provocation precluded the
defendant from deliberating. [Citation.] This requires a determination of the defendant’s
subjective state.” (Fitzpatrick, supra, 2 Cal.App.4th at p. 1295.)
       Here, even if defendant did not forfeit his appellate claim by failing to request
clarification or amplification in the trial court,3 based on our review of the instructions as
a whole, we conclude there is no reasonable likelihood the jury understood that it could
find defendant guilty of first degree murder without assessing his subjective state of
mind. The jury was instructed on murder pursuant to CALCRIM Nos. 520 and 521.
The trial court told the jury defendant committed murder if he committed an act that
caused the death of a person, he acted with malice aforethought, and he killed without a
lawful excuse or justification. The trial court explained express and implied malice
aforethought. It also told the jury if defendant committed murder and he acted willfully,
deliberately and with premeditation, defendant was guilty of first degree murder.
Otherwise, defendant was guilty of second degree murder. The trial court explained the
terms willfully, deliberately, and with premeditation.
       Regarding the effect of provocation on the degree of murder committed, the trial
court instructed with CALCRIM No. 522. The trial court said, “Provocation may reduce
a murder from first degree to second degree and may reduce a murder to manslaughter.
The weight and significance of the provocation, if any, are for you to decide. [¶] If you
conclude that the defendant committed murder but [was] provoked, consider the
provocation in deciding whether the crime was first or second degree murder. [¶]



3 Compare Jones, supra, 223 Cal.App.4th at p. 1001 [failure to request a pinpoint
instruction that CALCRIM No. 570’s objective test did not apply to the reduction of the
degree of murder based on provocation results in forfeiture] with Hernandez, supra,
183 Cal.App.4th at p. 1331, fn. 2 [declining to find forfeiture of the same appellate claim
because asserted error affected the defendant’s substantial rights].

                                              12
Also consider the provocation in deciding whether the defendant committed murder or
manslaughter.”
       Using CALCRIM No. 570, the trial court then instructed that a killing that would
otherwise be murder is reduced to voluntary manslaughter if the defendant killed
someone because of a sudden quarrel or in the heat of passion. The trial court instructed
that defendant killed someone because of a sudden quarrel or in the heat of passion if:
(1) he was provoked, (2) as a result of the provocation, he acted rashly and under the
influence of intense emotion that obscured his reasoning or judgment, and (3) the
provocation would have caused a person of average disposition to act rashly and
without due deliberation, that is, from passion rather than from judgment. The trial court
said, “In deciding whether the provocation was sufficient, consider whether a person of
average disposition in the same situation and knowing the same facts would have reacted
from passion rather than from judgment. [¶] If enough time passed between the
provocation and the killing for an ordinary person of average disposition to cool off and
regain his or her clear reasoning and judgment, then the killing is not reduced to
voluntary manslaughter on this basis.”
       The instructions informed the jury of the necessary mental states for first and
second degree murder and that provocation can reduce a murder from first to second
degree. The jury was instructed that defendant was guilty of second degree murder if he
killed with malice aforethought but was provoked. The term provocation in CALCRIM
No. 522 is used in a non-technical sense. (People v. Cole (2004) 33 Cal.4th 1158, 1217-
1218.) Provocation means “ ‘to arouse to a feeling or action . . . [or] to incite to anger.’ ”
(Hernandez, supra, 183 Cal.App.4th at p. 1334.) “The evidentiary premise of a
provocation defense is the defendant’s emotional reaction to the conduct of another . . .”
(People v. Ward (2005) 36 Cal.4th 186, 215.) The jury would necessarily be required
to evaluate defendant’s subjective state of mind to determine whether he was provoked
to act. The CALCRIM No. 522 instruction on reducing murder from first to second

                                              13
degree does not contain an objective test for provocation. CALCRIM No. 570, which
contains an objective test for provocation, dealt expressly and exclusively with
provocation to reduce murder to voluntary manslaughter. (Jones, supra, 223 Cal.App.4th
at p. 1001.)
       The arguments to the jury did not suggest a contrary standard. The prosecutor said
provocation necessary to reduce murder to voluntary manslaughter is evaluated under an
objective standard. He explained provocation can also reduce first degree murder to
second degree murder. The prosecutor did not argue an objective test applied to reduce
murder from first to second degree. (Jones, supra, 223 Cal.App.4th at p. 1001 [finding
no error in similar circumstance].) Defense counsel did not address whether an objective
or subjective test applied to reduce the degree of a murder. In fact, defense counsel did
not rely on provocation or heat of passion to argue that defendant committed second,
rather than first, degree murder. Defendant’s trial counsel argued instead that at most
defendant was guilty of voluntary manslaughter.
       Defendant claims the word “reduce” in CALCRIM No. 522 incorrectly implies
that the jury may find defendant guilty of first degree murder and may then consider
whether provocation reduces the murder from first to second degree. We disagree.
The trial court instructed that in order to find defendant guilty of first degree murder,
the jury must find defendant acted willfully, deliberately, and with premeditation.
The trial court said a decision to kill made rashly, impulsively or without careful
consideration is not deliberate and premeditated. Read with the instruction on first
degree murder, CALCRIM No. 522 conveys “ ‘provocation (the arousal of emotions)
can give rise to a rash, impulsive decision, and this in turn shows no premeditation
and deliberation.’ ” (Jones, supra, 223 Cal.App.4th at p. 1001; Hernandez, supra,
183 Cal.App.4th at p. 1334.) The jury would have understood the existence of
provocation would support the absence of premeditation and deliberation and, thus,
preclude a first degree murder finding. (Ibid.)

                                             14
       CALCRIM Nos. 521, 522 and 570 are not misleading when given together.
(Jones, supra, 223 Cal.App.4th at p. 1001.) We do not consider defendant’s ineffective
assistance of counsel claim because we conclude there is no instructional error.
                                             III
       Defendant further asserts that the trial court abused its discretion in denying
defendant’s request for continuance so that defendant could retain private counsel to file
a new trial motion based on ineffective assistance.
       A defendant has the right to retain counsel of his choice as part of his right to
effective assistance of counsel and due process of law. (People v. Courts (1985)
37 Cal.3d 784, 789-790 (Courts); People v. Jeffers (1987) 188 Cal.App.3d 840, 849
(Jeffers).) However, that right is not absolute. (Jeffers, supra, 188 Cal.App.3d at p. 850.)
The right to counsel of one’s choice “ ‘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.’ ” (Courts, supra, 37 Cal.3d at p. 790.)
       Continuances are granted in a criminal proceeding only upon a showing of good
cause. (§ 1050, subd. (e).) Such showing requires the party seeking a continuance to
demonstrate that counsel and the party acted with due diligence. (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1036; People v. Jenkins (2000) 22 Cal.4th 900, 1037
(Jenkins); People v. Johnson (2013) 218 Cal.App.4th 938, 942.) A trial court may deny a
request for continuance if the defendant is unjustifiably dilatory in obtaining counsel.
(Courts, supra, 37 Cal.3d at pp. 790-791; Jeffers, supra, 188 Cal.App.3d at p. 850.)
       A trial court has broad discretion to determine whether good cause exists to grant
a continuance. (People v. Beames (2007) 40 Cal.4th 907, 920; Jenkins, supra, 22 Cal.4th
at p. 1037.) The trial court abuses its discretion only when it exceeds the bounds of
reason, all circumstances being considered. (Beames, supra, 40 Cal.4th at p. 920.) The
party challenging the trial court’s denial of a motion for continuance bears the heavy

                                             15
burden of establishing a clear abuse of discretion. (Ibid.; People v. Froehlig (1991)
1 Cal.App.4th 260, 265.) We look at the circumstances of each case, particularly the
reasons presented to the trial judge at the time the request for continuance was denied, in
deciding whether the trial court’s denial of a continuance was so arbitrary as to deny due
process. (Courts, supra, 37 Cal.3d at p. 791.)
       The lateness of a request for continuance can be a significant factor justifying
denial, absent compelling circumstances to the contrary. (Courts, supra, 37 Cal.3d
at p. 792, fn. 4 [referring to eve-of-trial requests for continuance]; Jeffers, supra,
188 Cal.App.3d at p. 850.) Here, defendant had about a month to obtain private counsel
before his sentencing hearing if he wanted to do so. Two days before the sentencing
hearing, the trial court received a letter purportedly from defendant’s mother stating
defendant’s family wanted a continuance of the sentencing hearing so that the family
could retain counsel for a new trial motion. The letter says defendant was seeking a new
trial based on ineffective assistance of counsel. Defendant did not sign the letter, and we
cannot determine whether he received a copy of the letter. The letter does not explain the
reason for the delay in notifying the trial court of a need for a continuance. (Contrast
Courts, supra, 37 Cal.3d at pp. 795-796 [finding defendant was diligent in his efforts to
apprise the trial court of his wish to find substitute counsel at the earliest possible time].)
Defendant did not move for a continuance until the day of the sentencing hearing. No
explanation was given for defendant’s late request. The record on appeal does not
contain any written notice to continue the sentencing hearing or show of good cause for
defendant’s failure to file a written notice.4 The trial court could reasonably find under
those circumstances that defendant’s motion for a continuance was untimely.



4 Section 1050 requires the party requesting a continuance to file and serve on all parties
to the proceeding a written notice, at least two court days before the hearing sought to be
continued, together with affidavits or declarations detailing specific facts showing that a

                                              16
       Moreover, unlike the defendant in Courts, defendant here did not demonstrate that
he made a good faith, diligent effort to obtain counsel. (Courts, supra, 37 Cal.3d at
p. 791.) The letter from defendant’s mother does not describe what efforts defendant or
his family members made to hire private counsel. No such information was presented at
the sentencing hearing when defendant’s trial counsel made an oral motion for a
continuance. There was no indication as to when defendant formed the opinion that his
trial counsel’s representation was inadequate. There was no basis for the trial judge to
conclude defendant was not responsible for the delay in obtaining private counsel.
(Contrast Courts, supra, 37 Cal.4th at p. 792.)
       Defendant’s trial counsel said defendant and his mother were “in the process of
retaining” an attorney in Berkeley, but had not yet retained that person. Defendant did
not give the trial court any information about when defendant or his family would retain
the Berkeley attorney or what was required to complete the process of retaining that
attorney. Defendant attempts to place the burden on the trial court to elicit information
regarding good cause for a continuance. But the burden was on defendant to
affirmatively prove the grounds for his motion. (Cal. Rules of Court, rule 4.113;
People v. Stump (1971) 14 Cal.App.3d 440, 442-443.) Denial of a continuance is proper
where, as here, the prospect of hiring private counsel was still speculative at the time
defendant moved for a continuance. (Courts, supra, 37 Cal.3d at p. 791, fn. 3; People v.
Pigage (2003) 112 Cal.App.4th 1359, 1367 [no abuse of discretion in denying
continuance to allow the defendant to seek private counsel where the defendant waited



continuance is necessary. (§ 1050, subd. (b).) A party may still make a motion for a
continuance without complying with the requirements of subdivision (b). (Id. at subd.
(c).) However, unless the moving party shows good cause for the failure to comply with
those requirements, the trial court may impose sanctions against that party. (Ibid.) The
trial court addressed the merits of defendant’s motion for continuance without requiring
defendant to show good cause for his failure to file the required written notice. We will
do the same.

                                             17
until the last minute to express concern about his appointed counsel’s representation and
there was no evidence the defendant attempted to retain counsel or had even taken steps
to secure funds to hire private counsel].) Courts is distinguishable because in that case
the defendant had actually retained his new attorney by the time he renewed his motion
for a continuance. (Courts, supra, 37 Cal.3d at pp. 788, 791.)
       The letter from defendant’s mother states defendant would seek a new trial based
on ineffective assistance of counsel. Defendant’s trial counsel said the Berkeley attorney
would need to see the transcripts to evaluate and prepare any new trial motion, and that
defendant’s mother indicated it would take three to four months. Defendant did not
specify the potential grounds for a new trial motion based on ineffective assistance of
counsel.5 Unlike in Courts, no new attorney appeared at the hearing in this case.
(Courts, supra, 37 Cal.3d at p. 788.)
       Defendant claims the trial court denied his request for a continuance based solely
on its observation that his trial counsel’s in-court performance was competent. The
record does not support that assertion. The trial court said defendant had almost a month
to hire the Berkeley attorney and it did not appear the Berkeley attorney had been
retained. The trial court denied defendant’s motion for lack of good cause.




5  The issue presented is not whether the trial court committed error under People v.
Marsden (1970) 2 Cal.3d 118, but whether the trial court abused its discretion in denying
defendant a continuance in order to secure private counsel. (People v. Blake (1980)
105 Cal.App.3d 619, 623.) In any event, no Marsden hearing was necessary because
defendant did not move to substitute his appointed trial counsel for another appointed
counsel. (Courts, supra, 37 Cal.3d at p. 795, fn. 9 [Marsden involved the substitution of
appointed counsel for another appointed counsel].) The Marsden requirements are
directed at preventing waste of public resources through duplicative representation at
taxpayers’ expense. (People v. Ortiz (1990) 51 Cal.3d 975, 986.) That concern is not
present when a defendant wishes to replace appointed counsel with a privately retained
attorney.

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       The trial court did not abuse its discretion in finding no good cause for a
continuance. We do not address the merits of any new trial motion based on ineffective
assistance of counsel because no such motion was presented to the trial court.
                                      DISPOSITION
       The judgment is affirmed.



                                                       /S/
                                                  Mauro, J.


We concur:



      /S/
Hull, Acting P. J.



     /S/
Duarte, J.




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