Filed 6/11/13 P. v. Goins CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134149
v.
PIERRE JOENELL GOINS,                                                (Alameda County
                                                                     Super. Ct. No. C163346)
         Defendant and Defendant.


         A jury convicted defendant Pierre Joenell Goins of second degree murder (Pen.
Code,1 § 187), and being a felon in possession of a firearm (§ 12021, subd. (a)(1),
repealed by Stats.2010, ch. 711, § 4, now § 29800, subd. (a)(1) ). The jury also found
true the allegations that defendant personally and intentionally discharged a firearm,
causing great bodily injury and death. (§§ 12022.7, subd. (a); 12022.53, subds. (b), (c) &
(d); 12022.5, subd. (a).) The trial court sentenced defendant to 43 years to life in prison.
On appeal, defendant contends his conviction must be reversed because the trial court
erroneously refused to allow character evidence regarding the victim and deprived him of
his constitutional right to retain counsel of his choice. He further claims that reversal is
required because his videotaped confessions—wherein he admitted to shooting the victim
at close range, multiple times in the back—were not voluntary. We affirm.




1
         All further statutory references are to the Penal Code, unless otherwise indicated.
                                                             1
                                       I. FACTS
A.     Prosecution Case
       1.     The Murder
       In July of 2009, Latasha Odom lived in an apartment at 2355 Humboldt Avenue in
Oakland with her two children and her daughter‘s father, Julius Batiste. At the time,
Odom‘s cousin Bianca Hernandez and Hernandez‘s young son temporarily lived there as
well. Defendant was a friend of Hernandez‘s and Odom had met him once.
       On July 7, 2009, Odom was decorating the apartment with streamers and
balloons in preparation for her combined birthday party with her son the next day.
Around midnight, Hernandez called to wish Odom a happy birthday and said she and
defendant were coming over. Hernandez introduced defendant to Batiste. Everyone
was drinking and playing dominos; there were no problems. A neighbor named ―Jim‖
came to the door and asked if they had a ―Swisher,‖ which was used to smoke
marijuana. Jim recognized defendant from the neighborhood. As no one had a
Swisher, Jim, defendant, and Batiste went to a nearby convenience store to buy one.
Upon returning to the apartment, they realized that they bought the wrong flavor;
defendant went back to the store for a different one.
       Once back from the store, defendant, Odom, Hernandez, and Batiste continued to
drink and play dominos and cards. Odom testified that, at some point, Batiste got up
from the table where the four had been sitting, and then defendant got up and his chair
bumped Batiste. Defendant then shot Batiste in the back four times and ran out the door.
Hernandez ran after Defendant questioning what he had done. Odom called 9-1-1 and
the tape was played for the jury. Batiste died at the scene.
       When Odom was initially interviewed by the police, she identified herself as
―Tammy Williams.‖ At the preliminary hearing, Odom denied drinking alcohol and
smoking marijuana on the night of the murder, but at trial she admitted she had lied.
She, however, denied being drunk at the time of the murder. Odom further admitted that
she had been in trouble with the law in the past and had suffered three prior convictions:
assault in 2008, drug possession in 2008, and theft in 2003.

                                             2
       Bianca Hernandez testified that the night before the murder, she had spent the
night with defendant in a motel. Hernandez had known defendant for less than a month,
and had purchased marijuana from him. At midnight, Hernandez called Odom and
wished her a happy birthday and then she and defendant went to the apartment on
Humboldt. Everything seemed to be fine. They were playing dominos, drinking vodka,
and defendant was sharing his marijuana. Hernandez recalled Batiste sitting up against
the wall listening to music and ―rapping.‖ Batiste then got up and said he was getting
something to eat. However, Batiste never made it to the kitchen because defendant fired
multiple shots at him, and ran out the front door. Hernandez subsequently gave a
statement to the police, and to this day she wants to know why defendant shot Batiste.
       Sitha Kung lived across the street at 2363 Humboldt Avenue. On July 7, 2009, he
went to bed around 11 p.m. and was awakened by gunshots, which he initially thought
were firecrackers. He then heard a woman‘s voice say, ― ‗No, no.‘ ‖ and then say,
― ‗Why did you do this for?‘ ‖ The police arrived soon thereafter.
     2.       Police Investigation
              a.     Identification and Arrest
     Oakland Police Department technician, Cheryl Cooper reported to the crime
scene. She took photographs of the scene, including one of a slug on the floor, but a
homicide officer told her to stop until a warrant was obtained, and a search could be
conducted. When she returned to the scene approximately four and half hours later,
the slug was no longer there. She did find a cup and two glasses on the table, along
with four bottles of vodka.
       Oakland Police Homicide Sergeant Caesar Basa also responded to the crime
scene. A search warrant issued for the location, and no guns were located. Basa
interviewed Odom and Hernandez. Odom identified defendant as the suspect in the
homicide and she also picked him out of a photographic lineup.
       On July 8, 2009, at 11:30 p.m., Oakland Police Officer Daniel Gil was dispatched
to 8127 Mariners Drive, apartment 208, in Stockton. Stockton Police had conducted
surveillance on the apartment and defendant was subsequently taken into custody at that

                                            3
location. Two firearms were also taken into evidence. Defendant‘s girlfriend, Elizabeth
Amber Cruz, directed the officers to a plastic bag containing a purse with two revolvers
inside. Four rounds were removed from one of the guns. Defendant was transported to
the Oakland Police Department.
               b.    Defendant‘s Two Videotaped Confessions
       On July 9, 2009, defendant was interviewed at the Oakland Police Department.
Defendant was read his Miranda rights and he waived those rights. The videotaped
interview was played for the jury. Defendant initially stated that he had not been on
Humboldt the night before and spent the night at his girlfriend‘s house in Oakland before
heading to a friend‘s apartment in Stockton around 1 or 2 p.m. Defendant subsequently
admitted he was at Odom‘s and Batiste‘s home with Bianca Hernandez and that it was
Odom‘s birthday. Although things started out on a friendly note, defendant said that
Batiste ―started trippin‖ and ―mugging‖ him for some unknown reason. Defendant said
that earlier in the night, when they were ―chillin,‖ Batiste told him that once before he
had shot at Hernandez‘s ―baby daddy.‖ Defendant said that Batiste referred to the prior
incident as making the other guy ―do the runnin man.‖
       Defendant believed that Batiste and Hernandez may have had ―something going‖
on between them.
       Although he ―didn‘t see no pistol,‖ defendant believed he saw Batiste‘s gun sort
of ―poking‖ out. Defendant explained that he saw a ―[l]ittle bit,‖ explaining that
―people be trying to hide that shit‖ . . .[¶] ―You know, how you can see it bulging out.‖
Defendant said that Batiste began dancing around, playing with his belt, and said that
he was going to make defendant ―do the runnin man right now in a minute.‖ Defendant
understood this as Batiste‘s ―code‖ for ―shooting at somebody.‖ Defendant thought that
when Batiste turned around he was going to be killed and ―did what [he] had to do.‖
Defendant believed Batiste was reaching for a gun; defendant got his gun first and fired
three shots.
       Following his interview with Oakland Police, defendant also spoke with a
representative of the district attorney‘s office. District Attorney Inspector Patrick

                                             4
Johnson testified that when a homicide occurs and a suspect is taken into custody by the
police, the district attorney‘s office will also interview the suspect. On July 9, 2009,
Johnson, along with assistant district attorney, Kevin Dunleavy, took a statement from
defendant at the Oakland Police Department. Defendant waived his Miranda rights and
agreed to answer their questions. The videotaped statement was played for the jury.
       Defendant admitted that it was the first time he had met Batiste. They were
drinking and playing cards. Defendant asked to use the bathroom and Batiste said,
― ‗No.‘ ‖ Defendant thought he saw a ―little piece‖ of a black gun on Batiste. Batiste
mentioned ―firing shots‖ at the ―running man,‖ referring to Bianca‘s ex-boyfriend.
Batiste then started to pull his gun on defendant and then defendant shot him first.
Defendant admitted to shooting the victim at close range, explaining that he ―didn‘t
wanna miss.‖
               c.     Firearms Evidence
       Criminalist Todd Weller of the Oakland Police Department, testified as an expert
in firearms, including bullets and slugs. Weller explained that in determining whether a
certain gun fired a bullet, he conducts a microscopic examination of scrape marks or
striations that are left on the bullet as a result of the bullet traveling through a barrel of
a gun. Comparisons are then made by firing test bullets from the gun. In this case,
Weller examined three bullets and four cartridges and compared them with the two
revolvers in evidence. Based on the test-firing and microscopic examination of the
bullets, Weller opined that one of the guns had fired all three rounds.
               d.     Autopsy
       Dr. David Levin, a forensic pathologist for Alameda County, testified as an
expert. On July 9, 2009, he performed the autopsy on Batiste. There were four shots in
the victim‘s back. Based on the high presence of soot, it appeared that the fourth shot
was fired from one foot away or less. Bullet two passed through a rib, through the aorta,
then through the airway adjacent to the trachea and lodged in the trachea. Bullet three
was in the abdominal cavity. The cause of death was multiple gunshot wounds.


                                               5
B.     Defense Case
       The defense presented no testimonial evidence, but submitted documentary
evidence regarding defendant‘s medical records.
                                    II. DISCUSSION
A.     Character Evidence of the Victim
       Defendant contends the trial court abused its discretion and violated his right to a
fair trial by denying his in limine motion to present evidence that the victim had
committed violent acts in the past and acted in conformity with his character for violence
on the night in question. Defendant maintains this evidence was central to his claim of
self-defense because it would have shown his state of mind and would have corroborated
his statements to police.
       1.     Background
       The prosecution filed a motion in limine pursuant to Evidence Code sections 1101,
1103, and 352, seeking to exclude any prior bad acts or crimes committed by Batiste.
The defense, in turn, filed a motion seeking to admit Batiste‘s four prior acts of violence
under Evidence Code section 1103, subdivision (a)(1).
       At the October 4, 2011 hearing on the motions, the trial court stated that it had
read defendant‘s statements to the police and concluded there was no evidence of any
threats by Batiste. The court understood that defendant told police that he believed he
saw ―parts of a gun or something‖ and then he shot Batiste before Batiste could shoot
him. The court then summarized the prior acts of violence as follows: 1) On
November 7, 2005, Batiste and a co-defendant, robbed a victim at gunpoint. It was
reported that it was the co-defendant who displayed the gun; 2) On or about May 26,
2006, Odom was reportedly struck by Batiste and did not want to press charges. At the
time of the incident they were boyfriend and girlfriend and had a baby together; 3) On or
about October 7, 2006, Tracy police responded to a report that Odom had a deep
laceration on her right hand. Witnesses said that they saw fighting and punching and that
Batiste then cut Odom with an unknown object. Odom did not care whether the officer


                                             6
wrote a report; and 4) On April 7, 2006, Odom was hostile, drunk, and belligerent, and
said that Batiste pushed her.
       Defense counsel argued that the evidence should be allowed as defendant claimed
self-defense and the evidence demonstrated Batiste had a ―violent nature.‖ Defense
counsel further argued that based on defendant‘s statements to police, Batiste threatened
to shoot defendant and defendant shot first in order to save his own life. When the court
asked defense counsel to point out the actual threats by Batiste in the record, counsel
responded that defendant told police that he needed to go to the bathroom at one point but
Batiste would not let him. Defense counsel also said defendant told police that Batiste
gave him a hostile look. Defense counsel further noted that defendant told police that
when Batiste turned around, defendant believed he was getting ready to pull a gun.
Defense counsel argued that defendant was threatened by Batiste and the evidence
demonstrated Batiste‘s violent character.
       In response, the prosecutor argued that none of the conduct that defendant said
occurred in the Batiste‘s home on the night of the murder constituted violent conduct.
The prosecutor further argued that, on the night in question, defendant had just met
Batiste for the first time and, as such, defendant did not know anything about Batiste‘s
prior incidents of violence. Moreover, the prosecutor maintained that ―[t]here‘s
absolutely no evidence that . . . Batiste had a gun on this night or any other time in [his]
life . . . [Defendant] himself . . . states ‗I didn‘t see no pistol.‘ ‖ Rather, defendant
proceeds to say, ― ‗You know, people cover up their guns when they have guns . . . I
thought I saw a bulge.‘ ‖
       The trial court issued a tentative ruling that the challenged evidence would not be
admissible. There was no further discussion of the proposed evidence at trial.
       2.      Applicable Law
       ―We review a trial court‘s exclusion of evidence for abuse of discretion . . . .‖
(People v. Gutierrez (2009) 45 Cal.4th 789, 827.) ― ‗[W]here . . . a discretionary power is
inherently or by express statute vested in the trial judge, his or her exercise of that wide
discretion must not be disturbed on appeal except on a showing that the court exercised
                                                7
its discretion in an arbitrary, capricious or patently absurd manner that resulted in a
manifest miscarriage of justice.‘ [Citation.]‖ (Id. at p. 828.)
       Evidence Code section 1101, subdivision (a) provides that ―evidence of a person‘s
character or a trait of his or her character . . . is inadmissible when offered to prove his or
her conduct on a specified occasion.‖ ―In a criminal action, evidence of the character or a
trait of character (in the form of an opinion, evidence of reputation, or evidence of
specific instances of conduct) of the victim of the crime for which the defendant is being
prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by
the defendant to prove conduct of the victim in conformity with the character or trait of
character.‖ (Evid. Code, § 1103, subd. (a)(1).) Thus, when self-defense is raised in a
homicide case, evidence of the aggressive and violent character of the victim is
admissible to show the victim was the aggressor. (People v. Minifie (1996) 13 Cal.4th
1055, 1069.) The violent nature of a murder victim is irrelevant, however, unless there is
―some evidentiary support for a self-defense-type theory that the defendant perceived the
murder victim as presenting an immediate threat.‖ (People v. Hoyos (2007) 41 Cal.4th
872, 912-913, italics added.)
       Moreover, ―the trial court may exclude otherwise admissible evidence pursuant to
Evidence Code section 352 if admitting the evidence would have confused the issues at
trial, unduly consumed time, or been more prejudicial than probative. [Citations.] The
trial court must always perform its gatekeeping function pursuant to Evidence Code
section 350 to exclude evidence that is irrelevant.‖ (People v. Gutierrez, supra, 45
Cal.4th at pp. 827–828.)
       3.     Analysis
       Although the record shows that defense counsel failed to seek a final ruling on the
admissibility of evidence concerning Batiste‘s propensity for violence, defendant
contends that any further attempts by trial counsel to admit such evidence would have
been futile after the court appeared to indicate that it believed such evidence to be
inadmissible. Even assuming defendant‘s argument to be true, the trial court did not
abuse its discretion in excluding the challenged evidence.

                                               8
       Here, there was no evidence that defendant was in any imminent danger from
Batiste. To the contrary, everyone was seemingly having a good time, drinking, and
playing dominos and cards. Defendant was a social guest at Batiste‘s home and there is
no indication that he was unable to leave if he had wanted to do so. More importantly, a
gun was neither found on Batiste‘s body nor otherwise located at the scene. Defendant‘s
statements to the police about whether Batiste had a gun were equivocal at best and at the
most only suggest that he thought Batiste might have had a gun. On this basis, the trial
court properly exercised its discretion. (People v. Hoyos, supra, 41 Cal.4th 872.)
       In People v. Hoyos, supra, 41 Cal.4th 872, our Supreme Court addressed a similar
situation. There, the trial court observed that in order for a ―victim‘s propensity for
violence to be relevant, there must be some evidentiary support for a self-defense-type
theory that the defendant perceived the . . . victim as presenting an immediate threat.‖
(Id. at pp. 912–913.) In endorsing this statement, the Supreme Court further explained
that ―even if the murder victim were the most violent person in the world, that fact would
not be relevant if the evidence made it clear that the victim was . . . shot in the back of the
head.‖ (Id. at p. 913.) In Hoyos, the evidence showed that the victim had been beaten
while holding a toddler, and ―finished off with a bullet to the back of her head.‖ (Ibid.)
The defendant‘s claim that the victim posed a threat was based on a third party‘s
statement that victim ―might have been going for a gun.‖ (Ibid.) The Supreme Court
rejected this claim, finding defendant presented nothing more than ―sheer speculation‖
regarding the victim‘s conduct at the time of the murder. (Ibid, fn. omitted.)
       The court concluded the trial court acted within its discretion in denying admission
of the propensity evidence where the facts adduced at trial failed to show the victim
presented any threat to the defendant whatsoever. (People v. Hoyos, supra, 41 Cal.4th at
p. 913.)
       Similarly, here, there was no evidence whatsoever that Batiste could have
presented a threat to defendant. The evidence regarding the robbery in 2005 and the
domestic violence incidents in 2006 had marginal probative value and did nothing to
further defendant‘s self-defense claim. Moreover, Batiste‘s prior acts of violence were

                                              9
not relevant to show defendant‘s state of mind at the time he killed Batiste unless
defendant knew of Batiste‘s conduct. (People v. Cash (2002) 28 Cal.4th 703, 726
[victim‘s customary debt collection practices not relevant to show defendant‘s state of
mind at the time he killed victim unless defendant knew of those practices].) Here, there
was no evidence that defendant knew of Batiste‘s violent acts towards Odom or of his
participation in a robbery. Given this record, the trial court acted well within its
discretion in excluding the evidence pertaining to Batiste‘s alleged propensity for
violence.
       Finally, to the extent defendant claims that the exclusion of evidence of Batiste‘s
prior violent acts interfered with his constitutional right to present a defense, he never
made this claim at trial and, thus, he has forfeited the issue on appeal. (See People v.
Tafoya (2007) 42 Ca1.4th 147, 166; People v. Rudd (1998) 63 Cal.App.4th 620, 628-629
[generally a constitutional claim must be raised in the trial court to preserve the issue for
appeal].) Even assuming defendant had preserved this constitutional claim, it would be
meritless, because he has failed to show that the exclusion of the evidence made his trial
so unfair as to deprive him of due process.
       ―As a general matter, the ‗[a]pplication of the ordinary rules of evidence . . . does
not impermissibly infringe on a defendant‘s right to present a defense.‘ [Citations.]‖
(People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) ―Although completely excluding
evidence of an accused‘s defense theoretically could rise to this level, excluding defense
evidence on a minor or subsidiary point does not impair an accused‘s due process right to
present a defense.‖ (Id. at p. 1103.) A defendant has no constitutionally protected right
to introduce evidence that is irrelevant or only remotely relevant. (People v. Hall (1986)
41 Cal.3d 826, 834-835.) Further, the United States Supreme Court has recognized, ―we
have never questioned the power of States to exclude evidence through the application of
evidentiary rules that themselves serve the interests of fairness and reliability—even if
the defendant would prefer to see that evidence admitted.‖ (Crane v. Kentucky (1986)
476 U.S.683, 690; accord People v. Yeoman (2003) 31 Cal.4th 93, 141-142.)


                                              10
        Here, the trial court‘s ruling did not prevent defendant from presenting evidence
from which the jury might have concluded defendant‘s killing of Batiste was in self-
defense. Without again detailing the evidence, the jury heard defendant‘s statements to
police and to the district attorney that although the evening of murder began in a friendly
manner, as the night wore on, defendant felt uncomfortable around Batiste due to the fact
that Batiste started ―mugging‖ him and would not let him go to the bathroom. The jury
also heard defendant say that Batiste was dancing around with a gun in his waistband and
talking about making defendant ―do the running man.‖ In closing argument, defense
counsel emphasized that defendant grew increasingly anxious about Batiste‘s behavior,
and characterized defendant‘s conduct as being in self-defense. The jury also was
instructed with various instructions regarding self-defense. (See, e.g., CALJIC No. 5.12
[justifiable homicide in self-defense]; CALJIC No. 5.13 [justifiable homicide—lawful
defense of self]; CALJIC No. 5.15 [burden of proof on prosecution that homicide was not
justifiable]; CALJIC No. 5.17 [actual but unreasonable belief in necessity to defend—
manslaughter]; CALJIC No. 5.50 [self-defense—assailed person need not retreat];
CALJIC No. 5.51 [self-defense—actual danger not necessary]; CALJIC No. 5.52 [self-
defense—when danger ceases]; CALJIC No. 5.53 [self-defense not an excuse after
adversary disabled]; CALJIC No. 5.55 [plea of self—defense may not be contrived].) In
these circumstances, we cannot conclude that the trial court‘s ruling prevented defendant
from presenting his claim of self-defense. (People v. Cash, supra, 28 Cal.4th at pp. 727-
728.)
B.      Right to Counsel
        Defendant contends he was denied his constitutional right to counsel of his choice
when the trial court refused to grant a continuance so that his retained counsel could
prepare for trial, thereby, effectively denying his request to substitute in retained counsel.
        1.     Background
        Defendant‘s preliminary hearing was held on March 30, 2010, and he was
arraigned on April 15, 2010. Defendant was represented by appointed counsel and a
speedy trial was waived.

                                              11
      The case was called for trial on October 3, 2011. On October 5, the case was set
for various pretrial motions, including a Miranda issue, and jury selection was to
commence the next day. Prior to the hearing on the motions, defendant personally
addressed the court and stated he ―would like to hire a private attorney.‖ When the court
asked whether defendant had ―just decided‖ this, defendant replied, ―I‘ve been deciding,
but I need some more time.‖ The court advised defendant that he was there for trial and
the private attorney was either there or was not. In response, defendant said ―Conflict of
interest. It‘s not working.‖ The court asked defendant when his attorney could get there.
Defendant then asked about how much time he might get and the court reiterated he was
there for trial and he did not get any more time. The court told defendant that unless the
new counsel was ready to go right then, the court was hearing defendant‘s Miranda issue.
The court advised defendant he should have done this a ―long time ago‖ and proceeded
with the Miranda hearing.
      Later that day, sometime after noon, an attorney named Mr. Kelvin appeared in
court and stated he had been contacted two days earlier about substituting in as private
counsel for defendant. Mr. Kelvin indicated that he ―would not be requesting to substitute
[without] at least two or three weeks to prepare . . . .‖ The court denied the request for a
continuance as untimely and stated that it would ―disrupt the criminal proceedings.‖
       2.     Applicable Law
       ―The right to the effective assistance of counsel ‗encompasses the right to retain
counsel of one‘s own choosing. [Citations.]‘ [Citation.] 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.‘ [Citation.]‖ (People v.
Courts (1985) 37 Cal.3d 784, 789.) The erroneous deprivation of a defendant‘s counsel
of his choice is a structural error requiring reversal, and is not subject to harmless error
analysis. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 149-150.)
       ―Generally the trial court has discretion whether to grant a continuance to permit a
defendant to be represented by retained counsel. [Citation.]‖ (People v. Jeffers (1987)

                                              12
188 Cal.App.3d 840, 850.) ―A continuance may be denied if the accused is ‗unjustifiably
dilatory‘ in obtaining counsel, or ‗if he arbitrarily chooses to substitute counsel at the
time of trial.‘ [Citation.]‖ (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) Trial
courts should accommodate requests for continuances to obtain retained counsel ― ‗to the
fullest extent consistent with effective judicial administration.‘ [Citation.]‖ (Id. at
p. 791.) In determining whether denial of a continuance is so arbitrary as to violate due
process, courts look to the circumstances of each particular case, particularly the reasons
presented to the trial court. (Ibid.)
       3.     Analysis
       The record in this case supports the trial court‘s determination that defendant‘s
request was unjustifiably dilatory. There is nothing in the record to suggest defendant
had engaged in a good faith, diligent effort to hire retained counsel in the time leading up
to trial. First, appointed counsel had been in the case for over two years. In all that time,
defendant never filed a Marsden motion or otherwise moved to substitute in retained
counsel. Second, defendant never presented the trial court with any reasons for waiting
until the day before jury selection to request substitution of counsel, such as being
financially unable to retain counsel earlier. An unexplained delay in retaining counsel
does not establish good cause for continuance. (People v. Courts, supra, 37 Cal.3d at
pp. 790-791.) Third, when requesting the continuance, defendant neither indicated that a
private lawyer had been contacted to represent him nor the amount of time he needed to
find one. Rather, defendant equivocally stated, ―I‘ve been deciding, but I need some
more time.‖ When asked by the court when retained counsel could be there, defendant
replied, ―How long do you get?‖ Fourth, nothing in the record suggests that Mr. Kelvin
would have agreed to be defendant‘s counsel. When Mr. Kelvin appeared later that day,
he admitted he had been contacted two days before and he needed a chance to ―review
the file and familiarize [himself] with the case.‖
       Under these circumstances, the trial court properly found defendant unjustifiably
delayed his request to substitute retained counsel until the eve of trial, after both parties
had answered ready, witnesses had been subpoenaed, and two jury panels had been called

                                              13
for the next day. (See People v. Blake (1980) 105 Cal.App.3d 619, 623-624 [―[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‖].) The trial court was properly concerned about
the untimeliness of the request and the inability of retained counsel to immediately step in
without delaying the trial. We agree with the trial court‘s finding that continuing the trial
under the circumstances would have adversely affected the orderly administration of
justice. (See People v. Johnson (1970) 5 Cal.App.3d 851, 859.) There was no violation
of defendant‘s constitutional right to counsel of his choice.
       The instant case is readily distinguishable from People v. Courts, supra, 37
Cal.3d 784, where our Supreme Court found an abuse of discretion in denying the
defendant‘s request for a continuance one week before trial so that he could retain
counsel to represent him against a murder charge. (People v. Courts, supra, 37 Cal.3d at
p. 791.) There, the record established the defendant ―engaged in a good faith, diligent
effort to obtain the substitution of counsel before the scheduled trial date.‖ (Ibid.) The
defendant had contacted counsel two months before trial and spent the following weeks
trying to raise the necessary funds for a retainer. (Ibid.) The defendant‘s attempt to
conclude arrangements with counsel was delayed due to counsel‘s vacation. (Id. at
p. 792.) Additionally, there was no showing a continuance would have significantly
inconvenienced the court or the parties. (Id. at p. 794.) In reversing the denial of the
continuance, the Supreme Court contrasted the defendant‘s continuance request, made a
week before trial, with cases in which defendants had made ―eve-of-trial, day-of-trial,
and second-day-of-trial requests‖ and noted that various appellate courts had ―found the
lateness of the continuance request to be a significant factor which justified a denial
where there were no compelling circumstances to the contrary.‖ (Id. at p. 792, fn. 4.)
       Here, unlike the defendant in Courts, defendant made no showing that he had an
attorney who was ready and willing to take his case. Also, he waited until the last
moment to indicate to the court his dissatisfaction with his counsel and, even then, he had
not made any actual arrangements to secure new representation. Having failed to make a

                                             14
timely request, defendant cannot demand a continuance simply because there was no
additional demonstration of prejudice to the court or prosecution other than the
significant disruption of the orderly processes of justice necessarily attendant to a
continuance granted on the day set for trial. (See People v. Ortiz (1990) 51 Cal.3d 975,
983; People v. Turner (1992) 7 Cal.App.4th 913, 918-919.) ―Due process is not denied
every defendant who is refused the right to defend himself by means of his chosen
retained counsel; other factors, including the speedy disposition of criminal charges,
demand recognition, particularly where defendant is inexcusably dilatory in securing
legal representation.‖ (People v. Brady (1969) 275 Cal.App.2d 984, 993.) Defendant has
the burden to show an abuse of judicial discretion in the denial of his request for
continuance to secure new counsel. (People v. Blake, supra, 105 Cal.App.3d at p. 624.)
We cannot say the trial court abused its discretion in denying defendant‘s motion.
C.     Voluntariness of Confession
       Defendant next claims that his initial confession was involuntary and should have
been excluded. He further claims his second confession should be excluded as being
tainted by the first coerced confession.
       1.     Background
              a.     Police Interview
       Sergeant Basa testified that he was assigned to investigate the Batiste homicide that
occurred on July 8, 2009. Defendant was arrested in Stockton around 11:30 p.m. that same
day. Pursuant to Sergeant Basa‘s log, defendant was placed in an interview room at 1:40
a.m. on July 9, 2009. At 6:10 a.m., Basa met with defendant and he appeared awake and
lucid. He did not appear under the influence of drugs or alcohol. The interview began at
approximately 6:20 a.m. and Sergeant Parkinson was also in the room. Parkinson read
defendant his Miranda rights verbatim, straight from a form. Defendant waived his
Miranda rights and signed the waiver form. The interview was recorded and lasted




                                             15
approximately two to two and half hours.2 Sergeant Basa testified that defendant was
given food and water. Basa‘s log did not reflect that bathroom breaks were requested nor
did it reflect that any were denied. Defendant indicated that he might have thrown up at
some point earlier. Defendant had pulled the neck of his shirt up to his forehead. Basa
apologized for it being cold, but explained that since it was middle of summer, the
building‘s air conditioner was on. At one point, defendant complained of a headache in
the back of his head and related it to not taking blood pressure pills. He said he did not
have the pills with him and also complained of having kidney problems.
       According to Basa‘s log, defendant was given water at 1:40, 1:50, 4:24, and 6:03
a.m., before the interview began. Throughout the interview, defendant was also given
water at various times. During the first forty minutes of the interview, defendant sat with
his t-shirt pulled up over his face, and his arms tucked inside his shirt. When asked why
he was sitting that way, defendant indicated that he was just cold and that his nerves were
bad. The officers explained that they were talking about ―some serious stuff‖ and that
they needed to see his face. Despite the officers attempt to talk of the ―serious‖ event that
occurred, defendant continued to sit with his face covered and his arms inside his shirt.
When the officers told defendant it was hard to understand him when he had his head in
his shirt, defendant replied that he was ―[j]ust cold, that all man.‖ When Sergeant
Parkinson said ―You ain‘t cold, Pierre, not that cold,‖ defendant did not ask for a blanket
or ask for anything to warm himself, but said ―And plus I ain‘t got no sleep. I woke . . .
up by [the] SWAT team or something . . . .‖ Parkinson told defendant that he did not
seem like a bad guy, but that they could not even talk to him with his ―face all covered.‖
Defendant replied that the officers could talk to him, explaining ―it‘s just my nerves,
man. I do this even when I am just sitting in the house.‖ When asked if he was nervous,
defendant replied ―hell no,‖ explaining a prior gun shot left him with a ―bullet
pressuring‖ on his nerves.

2
      According to the time stamping on the recording, the interview began at 6:18 a.m.
and ended at 8:47 a.m. This court has watched the recording in its entirety and followed
along with the transcript provided in the supplemental clerk‘s transcript on appeal.
                                             16
          After watching defendant‘s behavior in answering Sergeant Parkinson‘s questions,
Sergeant Basa said: ―Do me a favor, put your hands through the shirt, sit up in your seat
like a man, all right? Quit bullshitting man. We‘ve done it long enough. Pierre, we‘ve
done it long enough man.‖ Basa then told defendant that he could try all he wanted to
distance himself from the situation, but it was not going any where. At times during the
interview, defendant also closed his eyes, claiming his was sleepy. At one point,
Sergeant Basa told defendant that he could close his eyes to the situation, but that it was
going no where, and that defendant needed to open his eyes to the truth. Sergeant Basa
told defendant, ―I‘ve given you all the respect from the very beginning but I‘m not going
to sit up in here and take that bullshit from you. Hiding behind your t-shirt, acting like a
child.‖
          Sergeant Basa again reiterated the seriousness of the incident and stressed the
importance of finding out the truth about what had happened. Defendant in response
said, ―My mind ain‘t working right, I‘m so sleepy . . . .‖ Sergeant Basa replied, ―Well,
then you gotta get it right. You gotta wake up. Everybody here‘s tired. . . . We‘ve been
at this since yesterday when this first happened . . . You‘re tired, I‘m tired, he‘s tired. . . .
―[Y]ou can close your eyes, . . . [¶] [y]ou can push yourself away from the situation right
here, man, but it ain‘t going anywhere, son.‖ Soon after, defendant said, ―Give me the
water so I can talk.‖ After Sergeant Basa retrieved the water, defendant said ―Ain‘t got
no food in my stomach man [].‖ Sergeant Basa told defendant: ―Hold on man. We can
get past all that, you know we can always get you food but we gotta talk about what
happened.‖ Following his confession, the officers brought defendant some food.
                 b.     Interview with District Attorney
          Inspector Johnson of the Alameda County District Attorney‘s office, responded to
the Oakland Police Department with assistant district attorney Dunleavy to interview
defendant. The interview lasted from 12:20 p.m. to 12:54 p.m. Defendant was read his
Miranda rights from a form and he verbally waived them and signed a form indicating
that he waived his rights. Defendant agreed to talk to investigators and appeared lucid.


                                               17
Johnson had listened to defendant‘s recorded statement and already knew that defendant
admitted to shooting Batiste.
              c.     Motion to Suppress Confession
       Defense counsel moved to suppress defendant‘s statements on the grounds that
they were not voluntary. According to defense counsel, defendant was deprived of water
and told that he had to ―speak first‖ and ―get water later.‖ Counsel also argued that
defendant was not fed until he was ―rewarded‖ with food after giving his confession.
Defense counsel further noted that the district attorney‘s interview was based solely on the
first interview and, thereby, tainted by the involuntary confession.
       In response, the prosecutor stated that defendant was provided with food between
the police interview and the interview with the district attorney‘s office. The prosecutor
also noted that defendant told police he had eaten the day before and the record reflected
he was given water numerous times. The trial court denied the motion to suppress.
       2.     Applicable Law
       An involuntary confession is inadmissible under the due process clauses of the
14th Amendment to the federal Constitution (Jackson v. Denno (1964) 378 U.S. 368,
385-386) as well as article I, sections 7 and 15 of the California Constitution (People v.
Benson (1990) 52 Cal.3d 754, 778).
       ―The law governing voluntariness of confessions is settled. ‗In reviewing the
voluntary character of incriminating statements, ― ‗[t]his court must examine the
uncontradicted facts surrounding the making of the statements to determine
independently whether the prosecution met its burden and proved that the statements
were voluntarily given without previous inducement, intimidation or threat. [Citations.]
With respect to the conflicting testimony, the court must ―accept that version of events
which is most favorable to the People, to the extent that it is supported by the record.‖ ‘
[Citations.] ―In order to introduce a defendant‘s statement into evidence, the People must
prove by a preponderance of the evidence that the statement was voluntary. [Citation.]
. . . When, as here, the interview was tape-recorded, the facts surrounding the giving of
the statement are undisputed, and the appellate court may independently review the trial

                                             18
court‘s determination of voluntariness.‖ [Citation.]‘ ‖ (People v. McWhorter (2009) 47
Cal.4th 318, 346-347.) ―A finding of coercive police activity is a prerequisite to a finding
that a confession was involuntary under the federal and state Constitutions.‖ (People v.
Maury (2003) 30 Cal.4th 342, 404.) The ultimate question ― ‗is whether defendant‘s
choice to confess was not ―essentially free‖ because his will was overborne.‘ ‖ (People v.
Massie (1998) 19 Cal.4th 550, 576.) ―Under both state and federal law, courts apply a
‗totality of circumstances‘ test to determine the voluntariness of a confession. (Withrow
v. Williams (1993) 507 U.S. 680, 693-694; People v. Williams (1997) 16 Cal.4th 635,
660.)‖ (People v. Massie, supra, 19 Cal.4th at p. 576.) The factors to be considered
include the element of police coercion, the length and location of the interrogation, and
the defendant‘s maturity, education, physical condition, and mental health. (Ibid.)
       3.     Analysis
       Having independently reviewed the record and the taped interrogation, (People v.
Massie, supra, 19 Cal.4th at p. 576; People v. Wash (1993) 6 Cal.4th 215, 238), we
conclude under the totality of the circumstances, defendant‘s confession was voluntary.
       True, before the police interrogation began, defendant had been in the interview
cell for approximately four hours. But the interview itself was not excessive or
prolonged. Throughout the course of the interview, defendant was given water and
otherwise treated respectfully. When defendant indicated that he had no food in his
stomach, he did not expressly state that he was hungry or request any food. More
importantly, Sergeant Basa never told defendant that receiving food was contingent on
defendant‘s decision to give a statement. Indeed, Sergeant Basa told defendant that they
could always get him food. As to defendant‘s claims that he was cold, sick, and tired
throughout the interview, the record belies such claims. It is evident from the videotape
that defendant was lucid, coherent, and otherwise healthy. At most it appears that
defendant was suffering, as he put it, from ―a little . . . hangover.‖
       Defendant never asked for a blanket, to lie down, or for any medication.
Defendant also adamantly denied that he was nervous during the interview. Further,
defendant professed there was nothing unusual about him sitting with his head inside his

                                              19
shirt. According to defendant, he always sat like that, even while at home. From our
independent review of the interrogation, there is no evidence that the police engaged in
any coercive tactics and nothing suggests that defendant‘s will was overborne. (People v.
Maury, supra, 30 Cal.4th at p. 404; People v. Massie, supra, 19 Cal.4th at p. 576.)
Accordingly, we conclude that defendant‘s confession was voluntary.
D.     Cumulative Error
       Lastly, defendant contends reversal is required due to the cumulative effect of the
errors he suffered at trial. However, where as here, there is no error at all, there is no
viable claim of cumulative error. (People v. Ramirez (2006) 39 Cal.4th 398, 465.)
                                    III. DISPOSITION
       The judgment is affirmed.




                                                   _________________________
                                                   REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
HUMES, J.




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