Filed 3/21/16 P. v. Shipley CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR



THE PEOPLE,                                                          B258095
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                    Super. Ct. No. MA059616)

         v.                                                          ORDER MODIFYING OPINION
                                                                     AND DENYING PETITION FOR
SCOTT SHIPLEY,                                                       REHEARING

         Defendant and Appellant.                                    [NO CHANGE IN JUDGMENT]



THE COURT:*
         It is ordered that the opinion filed herein on February 26, 2016, be modified as
follows:
         1. On page 2, first full paragraph, second sentence, delete the word “third” and
insert the word “second” in its place.
         2. On page 2, second full paragraph, third sentence, delete the words “and a
continuance” and insert “and a further continuance” in their place.
         3. On page 23, Subsection heading b, delete the italicized words “a Third,” and
insert the italicized word “Another” in their place.
         4. On page 23, second full paragraph, first sentence, delete the word “a” and
insert “another” in its place.
      5. On page 23, second full paragraph, second sentence, delete the words “had
already twice been continued 98 days to give him time” and insert “scheduled for June 6
was continued to give him additional time” in their place.
      These modifications effect no change in the judgment.
      The petition for rehearing is denied.




________________________________________________________________________
*EPSTEIN, P. J.                   WILLHITE, J.                      MANELLA, J.

                                              2
Filed 2/26/16 P. v. Shipley CA2/4 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR


THE PEOPLE,                                                          B258095

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. MA059616)
         v.

SCOTT SHIPLEY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen Blanchard, Judge. Affirmed.
         Ferrentino & Associates, Inc. and Correen Ferrentino for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr. and Tita Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
      Defendant Scott Shipley appeals from the judgment following a jury trial in
                                                                                    1
which he was convicted of second degree murder (Pen. Code, § 187, subd. (a)),
and the jury found true allegations that he personally and intentionally discharged a
firearm causing great bodily injury (GBI) or death (§ 12022.53, subds. (b), (c) &
(d).) Defendant’s post-trial request to substitute newly retained counsel was
denied, as was his third request to continue the sentencing hearing. Defendant was
sentenced to prison for 40 years to life (15 years to life for the murder, plus a
consecutive 25 years to life for the § 12022.53, subd. (d) [principal personally and
                                                                          2
intentionally discharged a firearm causing GBI/death] enhancement).
      Defendant maintains that the trial court erred in excluding medical records
reflecting diagnoses and treatment he received while in custody for injuries he
sustained during a fight with the victim that preceded the shooting. He further
contends that the trial court committed reversible error in failing sua sponte to
instruct the jury on the lesser included offense of involuntary manslaughter.
Finally, defendant argues that the trial court erred in refusing his requests for
substitute counsel of his choice and a continuance of the sentencing hearing. We
find no error, and affirm the judgment.


                                  BACKGROUND
The Prosecution’s Evidence
      Decedent Chris Demyen owned the Acton Water Company (AWC) which,
among other things, delivered water to fill home pools. Demyen was working

1     Unless otherwise specified, statutory references are to the Penal Code.

2     Sentences on the section 12022.53, subdivision (b) and (c) enhancements (10
and 20 years, respectively) were stayed under section 654.

                                           2
from home on May 15, 2103. His mother-in-law, Holly Hamilton, was present.
During early afternoon, Hamilton heard a man’s voice leaving a message on
Demyen’s business phone. Hamilton did not hear the whole message but told
Demyen he should listen to it after hearing the man say he was “having a problem
with one of [AWC’s] drivers.” Later, Hamilton overheard Demyen taking on the
phone saying, “Sir, sir, I’m trying to take care of the situation,” after which he
calmly left the house and drove away in his truck.
      Aaron Tye was driving a large (semi) truck for AWC on May 15, 2013. One
of Tye’s jobs that day was to fill a swimming pool at the home of Fernando Franco
on Eagle Butte Road, a small road that dead-ends at defendant’s house, up the hill
from Franco’s house. At Franco’s instruction, Tye parked the truck on the road as
close as possible to the fence, set up and began pumping water to the pool. About
10 minutes after Tye began filling Franco’s pool, defendant drove up the road and
stopped his white truck about 15 feet from the AWC truck. Defendant’s daughter
Hollee, whom he had just picked up from school, sat in the passenger seat holding
hot pizzas. Franco, who was near his pool, heard loud voices coming from the
truck, as if defendant was arguing with someone.
      Tye had been sitting in the AWC truck while waiting for Franco’s pool to
fill. When Tye saw defendant’s truck, he realized it could not get past the AWC
truck on the road and looked to see if there was somewhere he could move so
defendant could get by. Seeing no place to go, Tye walked toward defendant’s
truck, gesturing with his hands that he would be another 20 minutes. Tye then
returned to work, increasing the speed of the water flow to the pool. After Tye
resumed working, he occasionally looked at defendant and his daughter; he did not
hear either one say anything.



                                           3
      About 15 minutes later, just as he was finishing up at Franco’s house, Tye
saw defendant and Hollee about 25 feet away, walking up the hill. He shouted out
that he was “all done,” and that defendant could “move [his] truck.” Neither
turned or responded; they kept walking. Tye put away the hoses and returned to
the AWC truck which was unable to pass defendant’s truck, which he had left in
the middle of the road. Tye backed up and went to defendant’s house, planning to
apologize to for blocking the road and offer him a ride to his truck. No one
answered Tye’s knock.
      When Tye got back to the AWC truck he saw a white truck he did not
recognize pull up behind defendant’s truck at the bottom of the hill. He saw
someone he could not identify go in and out of defendant’s truck, and heard a loud
popping noise that sounded like a door slam. A few minutes later defendant drove
up to the front of his house and parked. The other white truck still blocked the
road at the bottom of the hill.
      Franco, who had seen defendant and his daughter walking up the hill and
heard Tye yell out that he was done, remained outside by his pool after Tye left. A
few minutes later he saw Demyen pull up in his own truck a few feet behind
defendant’s truck, and get out. Demyen took tow straps with metal hooks on the
end from his truck and laid them behind defendant’s truck. As defendant
approached, Demyen (who acted agitated or hostile) told him to “get [his] fuckin’
truck out of the way.” Franco heard defendant respond, but did not hear what he
said. Franco testified that the men stood about two or three feet apart from one
another; both appeared hostile. His view was partially obstructed by a fence and
defendant’s truck. Demyen told defendant he “need[ed] to move [his] truck,”
because he was “blocking [AWC’s] service truck.” Defendant responded to
Demyen’s demand by saying, “Hit me and you see what you gonna get.” Demyen

                                         4
told defendant again to move his truck and said that, if he did not, Demyen had the
right to move it if it was blocking AWC’s service truck. Demyen turned to grab
the tow straps, and Franco saw defendant push him with both hands. Demyen––
holding nothing in his hands––turned back and punched defendant “square in the
face.” Defendant returned the punch, but Franco was unable to see whether that
punch connected. The men continued to punch one another. Franco did not
believe either man gained the upper hand during the fight, but did see that
defendant’s nose was bleeding at some point. At one point, Franco saw defendant
take out a gun, extend his hand straight out, aiming at the middle of Demyen’s
chest and shoot him, once. Demyen fell backward. Franco then ducked and went
around the back of his house. A minute later, defendant came to Franco, saying
“Something happened. Call the ambulance.” Franco asked defendant to leave.
Defendant repeatedly said “He hit me,” as he left Franco, returned to his truck and
drove away. Franco called 911, and went to help Demyen.
      Meanwhile, as Tye made his way down the hill he saw someone lying face
down on the ground whom he soon recognized as Demyen. After rolling Demyen
over, Tye saw a bullet hole and that his shirt was covered in blood. He began
performing CPR. He stopped when he could not feel a pulse or breath, moved
Demyen’s truck so the paramedics could get to him and, when the police arrived
told them he believed defendant––then walking down the hill––was the shooter.
      Defendant’s daughter, Hollee, testified that her father picked her up from
high school at about 12:30 p.m., on May 15, and they bought pizzas. On their
street they found the AWC truck blocking the road. Hollee and her father noticed
that the truck’s water hose was “kinked,” which they surmised kept the water from
flowing as fast as it should. She took photos of the truck and hose. Hollee was a
“little upset” because the pizzas were hot on her legs, and defendant was “a little

                                          5
bit irritable” for the same reason, but not angry. He used the experience to educate
Hollee about water trucks.
      Defendant called the number on the AWC truck from his cell phone. He
told the person who answered that the driver had indicated it would take about 20
minutes for him to finish, explained that it would be faster without the kinks and
that since Franco had a large gate through which AWC’s truck could move, it had
blocked the road unnecessarily. Defendant hung up after a brief silence. He told
Hollee that Demyen had said he knew about the gate, but 20 minutes was a normal
amount of time to fill a pool. Hollee said her father seemed confused, not upset.
Defendant then received a call from AWC, but was unable to say anything because
he kept being interrupted. After that call defendant “seemed slightly irritated,
because his story was not being heard.” He then received another call from AWC,
during which defendant told the caller he planned to walk home and leave his truck
behind for two hours, and hung up.
      As Hollee and defendant walked up the hill to their house, he talked to her
about how “weird” the situation was, but was not angry. At one point he remarked
that, “if you mess with me, I’m gonna mess with you.” Hollee heard Tye call out
that he was “done here,” but neither she nor defendant turned around or spoke to
him. Defendant got angrier as they walked up the hill, but seemed calmer by the
time they got home.
      Defendant’s son, James, was home when he and Hollee arrived sometime
after 1:15 p.m. James thought his father seemed tired and somewhat frustrated.
Hollee briefly explained to James what had happened, then went outside to take
photos of the truck blocking the road. As she did, she saw the AWC truck backing
up the hill toward their house and went inside. Defendant told his children he was
going to get his truck, and not to open the door for anyone. He left through a door

                                          6
opposite the road. Defendant did not mention a gun, and Hollee did not see one.
James knew his father owned a .38 caliber handgun. Hollee heard knocking on the
door about five minutes after defendant left, but neither she nor James answered
the door.
      Defendant returned to the house in his truck. When defendant came into the
house, Hollee and James saw immediately that his nose and shirt were covered in
blood. Defendant instructed the children to call their mother. He said it was an
“emergency,” and that he had “just shot somebody” and went into his room.
Defendant emerged a few moments later having washed the blood off his face, and
had Hollee take his picture. He was “frantic” and panicked, kept repeating himself
and seemed to be “trying to get his thoughts together.”
      Defendant asked his children to accompany him down the hill. As they
headed down they saw several police cars headed toward their house. Hollee was
interviewed twice by representatives from the Los Angeles Sheriff’s Department
(LASD). LASD Deputy Timothy Lovitt and Sergeant Howard Cooper interviewed
her at the scene. Deputy Lovitt described her as calm, not shaken or upset. She
told him defendant had been very angry when he saw the AWC truck blocking the
road, while defendant was on the phone with AWC. She had heard Tye shout that
he was done pumping water into Franco’s pool, but chose to ignore him.
      Sergeant Cooper interviewed Hollee and James later that day at the sheriff’s
station. During her interview, Hollee referred several times to the fact that
defendant was specifically angry about the kinks in Tye’s water hose.
      An LASD Detective conducting the investigation observed several feet of
uncoiled tow strap lying on the ground with metal hooks at each end. Close
examination revealed no blood on either the strap or its hooks. Inside defendant’s



                                          7
house, investigators found a locked gun safe in defendant’s closet with an unloaded
revolver on top, but no ammunition or expended cartridges.
       The medical examiner who performed Demyen’s autopsy opined that he
died of a gunshot wound to his chest. Demyen had some external abrasions on his
forehead, lower legs, knees and left arm, and blunt force injuries to his head and
extremities. The coroner opined that Demyen received these injuries at or near the
time of his death. “Powder stippling” around the gunshot wound suggested that
the distance between the gun barrel and Demyen’s chest was about “two and a half
to three feet.”


The Defense Evidence
       Defendant testified in his own defense. Defendant lived on Eagle Butte
Road, where the road ends. On May 15, 2013, he was driving up the road with his
daughter Hollee, after picking her up from school. An AWC water truck servicing
Franco’s pool blocked the road his family shared with Franco. The truck’s hose,
draped over Franco’s fence, was “kinked” in two places spraying water
everywhere. Defendant talked to Hollee about how inefficient the delivery system
was and how rude the driver had been to block the road. Eventually, the driver
came around defendant’s truck signaling that he would be another 20 minutes.
Defendant did not want to wait that long and shouted at him to straighten the hose;
the driver did not acknowledge him.
       Defendant called AWC and, as he was leaving a message, Demyen answered
the phone. Demyen acknowledged that he knew his driver was blocking
defendant’s access. When defendant tried to tell Demyen that AWC’s delivery
system was inefficient because the hose was kinked and offered to send a photo,
Demyen got indignant, acting as though defendant was telling him how to run his

                                          8
business. Demyen was equally unreceptive when defendant tried to explain that
the truck did not need to block the road; it could have gone through Franco’s
double gate. He ranted and called defendant a “fucking asshole.” Offended and
insulted, defendant hung up, but Demyen called back and continued to rant.
Defendant described Demyen as being “almost incoherent, out of control,” and
said he just went “on and on and on.” Defendant was not able to say anything, and
eventually hung up again. When Demyen called back again, defendant told him he
planned to “leave [his] truck [there] a couple of hours to give [AWC] time to do
[its] job.” Defendant was offended and insulted, but “not upset with the truck
driver or anything.” Defendant did not hear Tye shout as he and Hollee walked up
the hill to their house. If he had heard the driver say he was done, defendant would
have gone back to retrieve his truck. As they walked, defendant told Hollee that
Demyen said something to him to the effect that, “if you mess with me, I’m going
to mess with you.”
      When they got home, defendant put on jeans, removed a small revolver from
his gun safe (which he always carried at home because of past encounters with
wild animals), and put the gun in his pocket. He heard the AWC truck backing up,
and told his children not to open the door. Wishing to avoid Tye, whom he
described as “surly,” defendant took a different route down the hill.
      As he arrived back at his truck, defendant saw a truck stop abruptly behind
his own. A man he learned later was Demyen got out holding a tow hook in a
“fisted grip,” with the strap loosely rolled in the other hand. He told defendant,
“you mother-fucker, move that fucking piece of shit. I’m going to fuck you up and
kill you.” Demyen moved behind defendant’s truck, squatting out of sight. As
defendant came around the back of his truck to see what Demyen was doing, he



                                          9
heard metal clanging and Demyen told him he could take the truck anywhere he
wanted. Defendant told him not to take his truck.
      Demyen grabbed defendant’s shirt with his left hand and, with his right
hand, struck defendant repeatedly on the left side of his face with the tow hook
along his eye line and orbital. Defendant heard his bones break, turned his head
and Demyen struck him on the ear with the hook. Demyen, who was bigger than
defendant, continued to hit him in the face with the hook over and over. Defendant
did nothing to defend himself, and tried only to avoid being struck and to shield
himself. Soon defendant began to believe that Demyen would never stop and was
intent on carrying out his earlier threat. After Demyen hit the bridge of
defendant’s nose and he heard a crunching sound and felt his nose flatten into his
face, defendant “drew [his] revolver and shot [Demyen]” from about two or three
inches away. He was not trying to kill Demyen, just stop the aggression.
Defendant tried calling for help, but was unable to control the buttons on his
phone. After a while he found Franco and told him to “call 911.” When Franco
asked “why?,” defendant told him that Demyen had “just tried to kill [him] with
that tow hook.” He told Franco to “get an ambulance,” and walked back to his
truck and drove home.
      When he got home, defendant rinsed off his face, asked his children to take
pictures of his injuries and the blood, unloaded the gun and put the ammunition in
an outside shed. When defendant took his gun out on May 15, 2013, he did not do
so intending to shoot anyone, had not known Demyen would show up, denied
knowing that Demyen would confront him or that he intended to goad him.
Defendant testified he did not intend to kill Demyen. In a number of recorded
jailhouse phone calls to and from his family, defendant had referred to himself as
a “high-profile father,” a “celebrity,” and said he was “truly a celebrity [in the

                                          10
jail],” and acknowledged “that’s great. . . . [He] love[d] the attention, the celebrity,
[and] the high-profile nature that this case brought [him].”


                                    DISCUSSION
      Defendant contends the trial court erred by (1) refusing to admit his medical
records proffered to corroborate his fear that he was in imminent danger of
suffering great bodily injury or death, and that he did in fact suffer great bodily
injury at Demyen’s hands; (2) refusing to instruct the jury on the lesser included
offense of involuntary manslaughter; and (3) denying his request for a continuance
to permit his newly retained counsel to research, prepare and present a motion
seeking a new trial.


1.    The Trial Court Did Not Err in Excluding Defendant’s Medical Records
      Defendant asserts that the trial court violated his Fifth and Sixth Amendment
rights by excluding his medical records as irrelevant and under Evidence Code
section 352 (section 352). He maintains that the excluded records are the only
corroborative evidence of the degree of force required under the circumstances and
the reasonableness of his claim that he acted in self-defense. We conclude
otherwise.


      a.     Relevant Proceedings
      After it rested and before defendant presented his case, the prosecution
moved “to exclude any mention of any of the diagnoses that the defendant [had]
gotten during the course of his time in jail,” on the ground that such information
was irrelevant to his state of mind at the time of his encounter with Demyen, and
should be excluded under section 352. Before ruling, the court confirmed with

                                          11
defendant its understanding that the information he sought to elicit from those
records was related to “side effects of the injuries [he] sustained in the fight that
preceded the shooting,” and his subsequent “pain and suffering . . . or any
treatment or diagnosis.”
      Defendant’s counsel noted that the records would show that long-term
effects of the injuries included a need for glasses (never before worn) due to a loss
of peripheral vision, hearing loss in one ear, tremors and that his nose had been
broken in two places. Counsel argued the records were “indicative of great bodily
injury and would . . . satisfy the component” of defendant’s claim of self-defense
that he had “reasonably believed that he was in imminent danger of being killed or
suffering great bodily injury,” and the jury was entitled to know the physical
symptoms defendant experienced as a result of Demyen’s “attack . . . upon him.”
Defendant’s counsel argued that he should also be permitted to testify about
injuries he suffered at the time of his confrontation with Demyen.
      The court agreed that evidence of defendant’s broken nose and other
symptoms or injuries suffered contemporaneous with the incident itself was
admissible. Photographs depicting a substantial amount of blood on defendant’s
clothing, and evidence that his nose was broken and bloodied was relevant to
defendant’s mindset at the time. Similarly, if defendant were to testify that his
vision had become blurry or that he had been unable to hear anything as or just
after being punched, such evidence would be relevant because it was
“contemporaneous to the incident itself” and went to his “mindset at the time.” To
that end, the court permitted defendant to introduce a photograph taken of him at
the jail three days after the incident depicting him with two black eyes. It
explained that, if defendant planned “to testify about his version of events, . . . that



                                           12
photograph [was] relevan[t] . . . because it is corroborative evidence as to his
testimony.”
      By contrast, the court found that medical records reflecting long-term effects
that defendant suffered, or his diagnoses and treatment while in custody were not
relevant to the pivotal question of the existence and reasonableness of his belief
that he was in imminent danger at the time of the incident:
             “ . . . and whether we’re talking about perfect self-defense or
      imperfect self-defense, what the jury has to look at is whether the defendant
      had an actual belief and whether that belief was reasonable. Those are the
      two elements . . . that separate those two things, perfect from imperfect, and
      also justify or excuse the homicide. [¶ ] What injuries are actually sustained
      or the long-term effects thereof are really irrelevant.”

      The court also excluded the medical records and testimony regarding after
effects defendant suffered due to his confrontation with Demyen on the ground that
the “strong prejudicial effect” of such evidence “would substantially outweigh [its]
minimal probative value” under section 352, and such evidence was “really only
elicited to play on the sympathy of the jury that . . . defendant has suffered
enough.” Moreover, such evidence would tend to “confuse the issues” and cause
an “undue consumption of time” by requiring the court to delve into the “after-
effects” of injuries sustained, none of which was relevant either “as to what
happened” at the time of the incident or as “to anything the jury need[ed] to
decide.”


      b.      The Court Did Not Err in Excluding the Medical Records
      A trial court’s decision to admit or exclude evidence under section 352 is
reviewed for abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1008
(Jenkins).) The court has substantial discretion in this respect and its exercise of

                                          13
discretion will not be disturbed on appeal absent a showing that it was exercised in
an arbitrary, capricious, or patently absurd manner resulting in a manifest
miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124
(Rodrigues).) Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is that which has a tendency to prove or disprove a disputed fact
and is of consequence to the determination of the action. (Evid. Code, § 210.)
Under section 352, a court may exclude even relevant “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.” (§ 352, subds. (a),
(b).)
        Defendant argues that his medical records should not have been excluded
because they constitute the “only evidence that could corroborate [his] testimony
of his injuries and the force used by Demyen to support [his] claim of self
defense,” and the trial court did not engage in the requisite balancing of the
probative value of this evidence against its prejudicial effect. Neither contention is
correct.
        First, defendant’s claim to the contrary notwithstanding, the court did not
exclude all evidence that may have corroborated his claim of self-defense.
Defendant himself testified at length that Demyen had attacked him, that he did
nothing to respond until he acted in self-defense after it became clear that Demyen
meant to make good on his threat to kill him. He testified that Demyen was his
physical superior, and about numerous blows Demyen delivered to his face with a
metal tow hook. He recounted and described a procedure performed on his nose
after Demyen broke it in two places, presented photographic evidence
corroborating that testimony, and testified about side effects he suffered.

                                          14
Defendant’s children also described their observations of their father’s bleeding
face and bloodied clothing after his encounter with Demyen. And defendant’s
neighbor Franco, a disinterested third party and the only eyewitness to the deadly
confrontation, testified about Demyen’s hostility from the outset and about seeing
him punch the smaller man “square in the face,” and continue to punch him several
times, and about defendant saying that Demyen had “just tried to kill [him]” when
he asked Franco to call 911.
      Second, there is no support for defendant’s claim that “[n]othing in the
record establishes that the court ever weighed the probative value of th[e proffered]
evidence against any prejudicial effect and found that the probative value was
substantially outweighed by any prejudicial effect.” (AOB 34)~ As discussed
above, the record clearly reflects that the court carefully weighed any minimal
probative value the medical records might have against the potential prejudice of
presenting such evidence to the jury, and reached the conclusion that the “strong
prejudicial effect [of such evidence] substantially outweigh[ed] any minimal
probative value.”
      Third, even if defendant could demonstrate that the long-term medical
problems about which he complains actually resulted from the confrontation with
Demyen and had some bearing on his mindset at the time of the incident itself, the
court appropriately concluded that the probative value of such evidence was
minimal at best, particularly when compared to the risk that such evidence would
                                                                                        3
complicate matters, confuse the jury and result in an undue consumption of time.


3      For example, without testimony from a medical expert linking his long-term
injuries to the incident, defendant’s assertions were mere speculation. But, if defendant
were permitted to present such expert testimony, the prosecution would have to present
an expert of its own, resulting in an unwarranted consumption of time spent litigating the
cause of defendant’s injuries, an issue the jury was not required to resolve.
                                              15
      In sum, defendant failed to show that the trial court abused its discretion by
excluding medical records of diagnoses and treatment he received while in custody
after Demyen’s death.


2.    The Trial Court Did Not Err by Failing to Instruct on Involuntary
      Manslaughter as a Lesser Included Offense of Murder

      The jury was instructed, among other things, as to first and second degree
murder, killing in self-defense––both reasonable and unreasonable––and voluntary
manslaughter. Defendant did not request, and the trial court did not give, an
instruction on involuntary manslaughter. The jury found defendant guilty of
second degree murder. He maintains the trial court had a duty to instruct the jury
sua sponte on involuntary manslaughter as a lesser included offense of murder, and
that its failure to do so constitutes reversible error. We conclude that this
instruction was not warranted by the evidence.


      a.     The Standard of Review
      “The trial court has a duty to instruct the jury sua sponte on all lesser
included offenses if there is substantial evidence from which a jury can reasonably
conclude the defendant committed the lesser, uncharged offense, but not the
greater.” (People v. Brothers (2015) 236 Cal.App.4th 24, 29 (Brothers), citing
People v. Whalen (2013) 56 Cal.4th 1, 68, disapproved on another point by People
v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) The duty to instruct on a
lesser included offense does not arise unless there is substantial evidence from
which the jury could find that the lesser offense, but not the greater, was
committed. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman),



                                          16
abrogated on another ground by amendment–not relevant here (“[t]o prove the
killing was ‘deliberate and premeditated,’ it shall not be necessary to prove the
defendant maturely and meaningfully reflected upon the gravity of his or her act”)–
of § 189.) “Evidence is ‘substantial’ only if a reasonable jury could find it
persuasive.” (People v. Young (2005) 34 Cal.4th 1149, 1200.) “‘[T]he existence
of “any evidence, no matter how weak” will not justify instructions on a lesser
included offense[;] . . . such instructions are required whenever evidence that the
defendant is guilty only of the lesser offense is “substantial enough to merit
consideration” by the jury.’” (People v. Moye (2009) 47 Cal.4th 537, 553 (Moye).)
“We review the trial court’s failure to instruct on a lesser included offense de novo
[citations] considering the evidence in the light most favorable to the defendant
[citations].” (Brothers, supra, 236 Cal.App.4th at p. 30; People v. Walker (2015)
237 Cal.App.4th 111, 115.)


      b.     Involuntary Manslaughter as a Lesser Included Offense of Murder
      Murder is the unlawful killing of a human being with malice aforethought.
(§ 187, subd. (a).) Malice may be express or implied. (§ 188.) Express malice is
an intent to kill; implied malice is shown by a willful act the natural and probable
consequences of which are dangerous to human life where the actor knowingly
acts with conscious disregard for the danger to life. (§ 188; People v. Beltran
(2013) 56 Cal.4th 935, 941–942.) First degree murder is a killing with express
malice that is willful, deliberate, and premeditated. (Id. at p. 942.) Second degree
murder is an unlawful killing with malice aforethought, but without the willfulness,
premeditation, or deliberation necessary to support first degree murder. (Ibid.)
Voluntary and involuntary manslaughter are lesser included offenses of murder.
(People v. Thomas (2012) 53 Cal.4th 771, 813.) “A defendant commits voluntary

                                          17
manslaughter when a homicide that is committed either with intent to kill or with
conscious disregard for life—and therefore would normally constitute murder—is
nevertheless reduced or mitigated to manslaughter.” (People v. Bryant (2013) 56
Cal.4th 959, 968.) The mitigating circumstances involves some form of
provocation or imperfect self-defense. (Ibid.) Involuntary manslaughter, on the
other hand, is a killing that occurs “in the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act which might produce
death, in an unlawful manner, or without due caution and circumspection.” (§ 192,
subd. (b); see People v. Burroughs (1984) 35 Cal.3d 824, 835, disagreed with on
another ground in People v. Blakeley (2000) 23 Cal.4th 82, 88–91 (Blakeley).)
      The trial court has a duty to instruct on involuntary manslaughter whenever
there is substantial evidence indicating the defendant did not actually form the
intent to kill. (People v. Rogers (2006) 39 Cal.4th 826, 884 (Rogers).) In this
context, “substantial evidence” is “‘“‘evidence from which a jury composed of
reasonable [persons] could . . . conclude[ ]’” that the lesser offense, but not the
greater, was committed.’” (Moye, supra, 47 Cal.4th at p. 553.) “‘“Speculation is
an insufficient basis upon which to require the giving of an instruction on a lesser
included offense.”’” (People v. Valdez (2004) 32 Cal.4th 73, 116.) Here,
speculation is all defendant offers. He maintains that his testimony constitutes
substantial evidence to warrant an instruction on involuntary manslaughter.
However, that testimony is not sufficient evidence to suggest that defendant did not
act with implied malice. Thus, the evidence did not justify an instruction on
involuntary manslaughter. (People v. Wickersham (1982) 32 Cal.3d 307, 323–324,
overruled on another ground by People v. Barton (1995) 12 Cal.4th 186, 201.)
      Defendant’s reliance on People v. Welch (1982) 137 Cal.App.3d 834
(Welch), is misplaced. In Welch, the court found there was “substantial evidence

                                          18
from which a jury could conclude that the defendant did not intend to kill [the
victim] when he discharged his weapon.” (Id. at p. 840.) However, as the
Supreme Court explained in Blakeley, supra, 23 Cal.4th 82, which effectively
abrogated Welch, the Welch court failed to “engage in any analysis or cite any
authority” to support its conclusion that an unintentional killing in unreasonable
self-defense can only be involuntary manslaughter, and the case is not “persuasive
authority for the proposition that intent to kill is necessary for a voluntary
manslaughter conviction.” (23 Cal.4th at pp. 90-92.) Here, although the jury was
instructed on voluntary manslaughter, it convicted defendant of second degree
murder. A necessary implication of the jury’s rejection of voluntary manslaughter
is its conclusion that defendant acted with malice (intended to kill Demyen or with
conscious disregard for his life), coupled with its finding that defendant’s acts were
not taken in response to sufficient provocation by Demyen nor in unreasonable
self-defense. Those conclusions preclude a finding of involuntary manslaughter.
(See People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 (Gutierrez) [involuntary
manslaughter instruction unwarranted where undisputed evidence established
shooting was intentional, although prosecution and defense witnesses disagreed on
precipitating event, and jury’s rejection of manslaughter in favor of murder verdict
precluded possibility of error in refusal to instruct on involuntary manslaughter].)
      Here, as in Gutierrez, defendant’s actions were neither unintentional nor
merely negligent. Rather, they were clearly intentional and there was
overwhelming evidence of his conscious disregard for Demyen’s life. (Brothers,
supra, 236 Cal.App.4th at pp. 34-35; People v. Guillen (2014) 227 Cal.App.4th
934, 1028 [involuntary manslaughter instruction unwarranted where evidence left
no room for reasonable doubt that defendant acted with intent to kill or conscious
disregard for human life]; see generally People v. Evers (1992) 10 Cal.App.4th

                                           19
588, 596, 598 (Evers) [intentional use of violent force against the victim, knowing
the probable consequences of actions, precludes instruction on involuntary
manslaughter].) The record contains no evidence suggesting that defendant did not
fully appreciate the risk of his actions. A sua sponte involuntary manslaughter
instruction is not warranted in the absence of substantial––not “minimal or
insubstantial”––evidence that a defendant acted without realizing his conduct
posed a risk to human life. (Id. at p. 596.) Even viewing the evidence in the light
most favorable to defendant, as we must, there is no substantial evidence to
warrant an instruction on involuntary manslaughter. (See Moye, supra, 47 Cal.4th
at p. 553; Brothers, supra, 236 Cal.App.4th at pp. 30, 33-35.)


3.    The Court Did Not Abuse its Discretion by Denying Defendant’s Request for
      a Continuance

      a.     Relevant Proceedings
      After the jury returned its verdict on April 25, 2014, the trial court granted
defendant’s request to postpone the sentencing hearing until June 6, 2014.
      When the parties returned on June 6, 2014, defendant was still represented
by the same privately retained counsel who had represented him at trial. On that
day, the trial court granted defendant’s second request to continue the sentencing
hearing, which was set for August 1, 2014. Although there is no transcript of the
hearing in the record, the trial court later noted––and no party disputes––that it
informed the parties on June 6, that no further continuances would be permitted.
      On August 1, 2014, defendant appeared with Mark Bledstein, an attorney
from the office of his then-current counsel, and Correen Ferrentino, prospective
counsel whom he wished to substitute in. Ferrentino informed the court that, on
July 15, 2014, she had filed a motion to continue the sentencing hearing, and that

                                          20
she had been “retained [by defendant] a couple weeks before that.” Ferrentino
wished to substitute in as defendant’s counsel of record in order to evaluate the
transcripts and evidence to determine the grounds (if any) for a new trial motion, to
file that motion and for sentencing. She said she had informed trial counsel several
weeks before of her “intention[] to substitute in . . . and to continue the matter to
obtain transcripts and to investigate any issues for motions new trial both within
the record and outside the record.” Ferrentino also reminded the court that it was a
“critical stage” of the proceeding for purposes of a new trial motion which could
not be filed after sentencing, and that defendant faced a severe sentence
notwithstanding his lack of prior convictions.
       The court rejected defendant’s request for a continuance for several reasons.
First, it noted that the verdict had been rendered 99-days earlier. To permit new
counsel at such a late stage to substitute in and conduct an additional three months’
of investigation which might or might not lead to the filing a new trial motion
violated section 1191’s principle requiring speedy sentencing and caused
additional, unnecessary suffering to the victim’s family who deserved and had
waited a long time for their “day in court, . . . peace of mind and finality.”
       Second, the court observed there was a “very serious” public interest in
denying an additional continuance because, although defendant faced a lengthy
prison sentence by virtue of his murder conviction, he remained housed in a county
jail which was “bursting [at] the seams . . . with . . . state prisoners . . . being
housed locally.”
       Third, the court reminded defendant’s current counsel that, when the parties
appeared at the prior sentencing hearing and defendant requested a second
continuance, the court agreed to delay sentencing a second time to August 1, but
specifically said that it “wasn’t going to grant any further continuances; that we

                                            21
needed finality of judgment and we needed to get this done”; and that it knew “that
                             4
everyone understood that.”
       Despite the court’s pronouncement,
             “It wasn’t until after that June 6th date that [defendant] employed
       another attorney . . . [who] . . . says that she was retained by [defendant’s]
       family on June 9. So that was three days after the first continuance where I
       made clear I wasn’t going to grant anymore continuances.
             “Despite being retained on June 9th, I did not get a motion to continue
       from counsel until it was filed on July 15th.”

       In addition, the court noted that defendant’s then-current counsel and the
prosecutor both approached the trial court a few days before the August 1 hearing
to inquire whether it was
              “ . . . ‘inclined to grant [the instant request for a] continuance?’ [The
       court] said absolutely not, as I made clear before, we’re going forward on
       sentencing [on August 1]. So I also don’t believe that it in any way
       prejudices [defendant] and his current attorney to go forward with
       sentencing today, because everyone knew that that was going on and
       everyone knew that I was not going to be granting a continuance.”

       Finally, the court noted that, although defendant had a right to be
represented by an attorney of his choosing, that right was “not absolute” and he
could not, “by insisting on a particular attorney, unnecessarily impede or obstruct
the progress of the proceedings,” which is what the court perceived defendant to be
attempting to do (“that’s what we have here”). (See People v. Robertson (1963)
222 Cal.App.2d 602, 605-606.)
       The court found that, although defendant had known since June 6, 2014, that
no further continuances would be granted, he had been “dilatory” and had waited

4      There is no reporter’s transcript for a June 6, 2014, hearing. There is also no
dispute that the discussion to which the trial court referred took place.

                                            22
until three days after the court stated that no further continuances would be given
to retain new counsel. That new counsel had now informed the court she needed
three more months to conduct her review and investigation, and there was no
guarantee that, at the end of that time, a new trial motion would be filed.
Accordingly, the court found no good cause to continue sentencing. The court was
willing to grant defendant’s request to substitute counsel, provided Ferrentino was
prepared to proceed immediately with sentencing. After the court was informed
that defendant’s counsel was not ready to proceed with sentencing, it denied
defendant’s request for substitution of counsel and to continue the sentencing
hearing.


      b.     Defendant Has Not Demonstrated that the Trial Court Erred in
             Denying a Third Continuance of the Sentencing Hearing

      A continuance may be granted for good cause (§ 1050, subd. (e)), and the
trial court has broad discretion to grant or deny the request. (People v. Grant
(1988) 45 Cal.3d 829, 844.) A continuance may be denied if a defendant “is
‘unjustifiably dilatory’ in obtaining counsel” or “‘arbitrarily chooses to substitute
counsel at the time of trial.’” (People v. Courts (1985) 37 Cal.3d 784, 790.)
Defendant bears the burden to establish that the court abused its discretion.
(People v. Rhines (1982) 131 Cal.App.3d 498, 506.)
      Here, the trial court did not abuse its discretion in denying a continuance
having found defendant was dilatory and failed to demonstrate good cause for a
continuance. At defendant’s request, the sentencing hearing had already twice
been continued 98 days, to give him time to prepare for that hearing and/or file
post-trial motions. Counsel had specifically been informed by the court on June 6,
that the sentencing hearing would take place on August 1, 2014. Ferrentino was

                                          23
retained on June 9, 2014, but did not alert the court until August 1 that she needed
two or three more months just to determine whether defendant had grounds to file
and to file a new trial motion. Ferrentino did not inform the court that she had
uncovered any information in the intervening nearly two months before the August
1 hearing to lead her to believe such a motion would indeed be filed.
       Further, our review of the record and disposition of the other issues
defendant has raised on appeal convinces us that, even if a continuance should
have been granted, defendant had no grounds upon which to base a new trial
motion. Thus, to the extent the court erred in denying a continuance, the error was
harmless.
       Defendant maintains that, had his new attorney been given more time to
research and prepare a new trial motion, “he would have had an opportunity to
seek two vital expert opinions”: the first to review and interpret his medical
records, and the second regarding the effect of marijuana in Demyen’s system.
First, as discussed at section 1, above, defendant’s contention that the trial court
erred in excluding medical records of diagnoses and treatment he received in
custody lacks merit.
       We also reject defendant’s claim that, had he been given additional time he
could have obtained an expert to testify regarding the amount and effect of
                                                         5
marijuana found in Demyen’s system when he died. Defendant claims that, had
he been able to conduct further investigation, such an expert’s opinion might have
been deemed essential either to his claim of self-defense, or to an argument that he
received ineffective assistance of counsel because his trial counsel neglected to
seek and present such expert evidence to corroborate his testimony. First, we fail

5     Before trial, when the prosecutor objected to introduction of this evidence,
defendant’s attorney responded that he had no intention of introducing it, so the issue
became moot.
                                           24
to see the relevance of evidence that Demyen had marijuana in his system at the
time of the incident. The jury heard––and rejected––defendant’s testimony that
Demyen verbally threatened his life, then engaged in an unprovoked attack,
repeatedly striking defendant in the face with a metal tow hook, an attack so
savage that defendant believed Demyen actually intended to kill him. Additional
evidence that Demyen had cannabis in his system at the time all this occurred does
not bear on defendant’s state of mind at the time when he decided to shoot him.
      Further, defendant has identified nothing that would advance any claim of
ineffective assistance of counsel. Where, as here, the record on appeal sheds no
light on why counsel acted or failed to act in a challenged manner, in order to
avoid placing appellate courts in “‘the perilous process of second-guessing,” or
ordering unnecessary reversals in cases “where there were, in fact, good reasons
for the aspect of counsel’s representation under attack,” the proper approach is for
appellate counsel wishing “to raise the issue of inadequate trial representation [to]
join a verified petition for habeas corpus.” (See People v. Pope (1979) 23 Cal.3d
412, 426–427, fn. 17, abrogated on another ground by People v. Ledesma (1987)
43 Cal.3d 171, 217–218.)
      Here, we cannot ascertain why defendant’s trial attorneys chose not to
pursue the issue of the presence and/or level of drugs in the victim’s system. To
the extent defendant’s new counsel––who has had since mid-June 2014 to consider
this issue, believes such an argument may legitimately be made on this point, it
may be presented in a habeas corpus petition.




                                          25
                   DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 WILLHITE, J.




We concur:




EPSTEIN, P. J.




MANELLA, J.




                            26
