Filed 7/1/14 P. v. Harris CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B249580

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA394823 )
         v.

MARION HARRIS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Drew E. Edwards, Judge. Affirmed.


         Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.


                              _____________________________________
       A jury convicted Marion Harris of two counts of shooting at an occupied vehicle
(counts 1 & 3; Pen. Code, § 246), possession of cocaine base for sale (count 2; Health &
Saf. Code, § 11351.5), possession of a firearm by a felon (count 4; Pen. Code, § 29800,
subd. (a)(1)), and four counts of assault with a firearm (counts 5-8; Pen. Code, § 245,
subd. (a)(2)). As to counts 4 through 8, the jury found that Harris personally used a
firearm in the commission of the offenses. (Pen. Code, § 12022.5.) Harris subsequently
admitted he suffered a prior conviction for a narcotics offense. (Health & Saf. Code,
§ 11370.2, subd. (a).) The trial court sentenced Harris to state prison for an aggregate
term of 25 years and 4 months. We affirm.
                                         FACTS
The First Shooting (Counts 1, 5 & 6)
       Rhonda Stamp was Harris’s ex-girlfriend. They had a child when they were
together. In February 2012, their child was two-years old, and Stamp was pregnant by
Harris with another child. Deborah Watson dated Stamp’s son. Watson knew Harris
from prior interactions with him at family gatherings.
       On February 29, 2012, at about 1:00 p.m., Stamp and Watson were driving on
50th Street near Hooper Street when they saw Harris standing in the middle of the street,
talking to someone in a car. As Stamp’s car approached Harris, he appeared to become
“upset.” Watson saw Harris start “rearranging . . . , like, moving his clothing” near his
waist area. At the same instant, Stamp put her head down and began to accelerate the car.
Watson also put her head down. Watson believed that she heard “possibly one gunshot.”
Stamp and Watson immediately drove to a nearby police station to report the incident.
Stamp went inside while Watson waited in the car. Stamp was not in the station “long;”
when she exited the police station, she had a business card.
The Second Shooting (Counts 3, 7 & 8)
       After leaving the police station, Stamp and Watson drove to Taco Mama at the
corner of Vernon and Hooper Streets. They ordered food and then went to the car to wait
for their number to be called. Watson saw Harris drive into the parking lot in a black-top
sedan and pull into a spot right next to Stamp’s car. Stamp immediately ducked and

                                             2
drove off at a high rate of speed. Watson also put her head down; she heard what
appeared to be another gunshot. Stamp and Watson drove to the police station for the
second time. After getting out of the car at the police station, they noticed what appeared
to be a bullet hole in the car.
       Los Angeles Police Officer Jin Kwon met with the two women. They told him
that two shootings had taken place. Officer Kwon spoke with Stamp first while Watson
was within earshot. Stamp looked angry when she recounted the details of the two
shooting incidents. Both Stamp and Watson told Officer Kwon that Harris was the
shooter. Stamp had Harris’s photograph identification card in her possession, and
showed it to Officer Kwon.
       After speaking with Stamp, Officer Kwon asked Watson whether Stamp’s report
was true, and Watson replied, “Yes.” He also asked Watson to clarify some of the things,
and her answers were in line with what Stamp said. Watson specifically told Officer
Kwon that she saw Harris on the street when she was in the car with Stamp on 50th Street
going westbound towards Hooper, and Harris produced a handgun and fired two gunshots
at their car. Watson further told Officer Kwon that she was at a taco stand at Hooper and
Vernon when she saw Harris again; Harris tried to open the door, but it was locked.
Stamp started to drive away when Harris fired one shot at them, hitting the car.
       Officer Kwon then went outside to inspect the car that Stamp and Watson had
been driving. He took a picture of the rear driver’s side wheel well. At trial, Officer
Kwon testified that, based on his training and experience, the damage appeared to come
from a gunshot. Officer Kwon’s partner looked at the hole to see if there were any bullet
fragments lodged inside the hole, but he did not find any.
       After Stamp signed the report, Officer Kwon and his partner conducted a follow-
up investigation at the two shooting locations reported by Stamp and Watson. They first
went to the one on 50th Street between Hooper and Ascot. They did not locate any
casings, evidence of bullet strikes, or eyewitnesses. Officer Kwon testified that, in his
experience, people are often unwilling to talk to police about shootings. Officer Kwon
and his partner then went to the taco stand at Hooper and Vernon to “see if anyone else or

                                             3
anything is there, casings, bullet fragments, and see if there are any eyewitnesses.”
They did not locate any casings or evidence of bullet strikes. Officer Kwon’s partner
spoke with Samuel Valle, who worked at the taco stand. At trial, Valle testified that he
was preparing food in the front for customers when he heard “a loud bang,” which
appeared to be a gunshot. He dove to the ground. Valle testified that it sounded like the
bang came from somewhere on the street. He did not see anybody firing a gun and he did
not call 9-1-1.
Further Investigation
       On March 1, 2012, Los Angeles Police Officer Kevin Raines and his partner,
Officer Rose, were assigned to investigate the shootings. In Officer Raines’s presence,
Officer Rose had several phone conversations with Stamp and also at some point with
Watson. After speaking with Officer Rose, Watson was asked to provide a statement.
       At trial, Watson was shown a copy of the statement that included a photo of Harris
in the corner and a statement, “This is the man who shot at the car on 50th between Ascot
and Hooper, and also the second time at Taco Mama on Hooper and Vernon. As I was
sitting in the car, he shot at my tire.” Although the signature on the statement identifying
Harris as the shooter was almost identical to Watson’s signature on a subpoena, Watson
insisted at trial that she did not sign the statement, and contended that Stamp wrote the
document. She further testified that she did not give a West Globe Avenue address as her
home address, and that her signature was photocopied. Watson admitted that her life
could be in danger “if word got out to the street” that she signed a statement identifying
Harris as the shooter.
       On June 27, 2013, Watson had a brief conversation with Officer Raines when
Officer Raines’s partner served her with a subpoena. Watson told Officer Raines that she
saw Harris reach towards his waist and pull out a handgun when she and Stamp were
driving on the 50th Street on February 29, 2012. She also told Officer Raines that she
saw Harris running after Stamp’s car with a gun in his hand. When she and Stamp was
waiting in the car for food at Taco Mama, Watson saw Harris “produce a handgun” and



                                             4
point it at the car. Watson told Raines that she knew Harris and had seen him
“several times at family gatherings,” so she recognized him when she saw him.
Harris’s Arrest with Drugs and the Recorded Jail Cell Conversation
       On March 6, 2012, Officers Raines and Rose arrested Harris as he was parking a
car on 55th Street. As the officers were walking Harris to the sidewalk, Officer Raines
saw a plastic baggie containing an off-white solid material, later determined to be 3.98
grams of cocaine in the form of cocaine base, fall from Harris’s right pants leg onto the
ground. Officer Raines seized the baggie and searched Harris, who had “a small baggie
of marijuana in his front pants pocket and $303 in miscellaneous denominations in his
right front pocket.”
       At the police station, Officers Raines and Rose placed Harris in a room and had a
conversation with him for about 15 minutes. Harris was Mirandized1 and agreed to make
a statement. He told the officers, “The cocaine, yeah, that shit’s mine, but I ain’t
involved in no shooting.” Harris refused to make any further statements. During the
conversation, Officer Raines became familiar with Harris’s voice, which was “distinct”
because it was “deeper, edgier.” Harris was booked into the Metropolitan Detention
Center on March 6, 2012.
       On March 7, 2012, Jumanee Buard was arrested as part of an unrelated
investigation conducted by Detective Frettlohr, and booked into the Metropolitan
Detention Center. Buard and Harris were placed into a cell together and their
conversation was recorded. On March 12, 2012, Officers Raines and Rose received a
copy of the recording, and listened to it. The officers heard Harris make a number of
incriminating statements.2




1
       Miranda v. Arizona (1966) 384 U.S. 436.
2
        The taped jailhouse conversation included numerous uses of “street” vernacular.
At trial, a police expert testified to the meaning of various comments heard on the tape.

                                              5
       In May 2012, the People filed an information charging Harris with the offenses
summarized above. The charges were tried to a jury in July 2012. Watson testified at
trial; Stamp did not. On July 16, 2012, the jury returned verdicts as summarized above.
                                      DISCUSSION
I.     The Recorded Jail Cell Conversation Was Properly Admitted
       Harris contends all of his convictions must be reversed because the trial court
prejudicially erred by admitting the recorded jail cell conversation. Harris argues that the
conversation between him and Buard was recorded after he was arraigned and appointed
counsel, and because Buard was acting as an agent for the police, the conversation was
inadmissible. Specifically, Harris argues the police violated Massiah v. United States
(1964) 377 U.S. 201 (Massiah) by placing him in a recorded jail cell with a cellmate who
knew the same acquaintances and who was charged with similar charges, thus creating a
situation likely to induce Harris to make incriminating statements. We disagree.
       A. Massiah Error
       Under Massiah, “when, after adversarial judicial criminal proceedings have been
initiated and in the unwaived absence of counsel, a government agent deliberately elicits
from a defendant incriminating statements, those statements are inadmissible at a trial on
the charges to which the statements pertain.” (People v. Dement (2011) 53 Cal.4th 1, 33;
and see also Fellers v. United States (2004) 540 U.S. 519, 523; Maine v. Moulton (1985)
474 U.S. 159, 170, 180; Massiah, supra, 377 U.S. at p. 206.) “[A] Sixth Amendment
violation occurs when the government intentionally creates or knowingly exploits a
situation likely to induce the defendant to make incriminating statements without the
assistance of counsel, but not when the government obtains such statements through
happenstance or luck.” (People v. Dement, supra, 53 Cal.4th at p. 33; and see Maine v.
Moulton, supra, 474 U.S. at p. 176; United States v. Henry (1980) 447 U.S. 264, 274.)
       “‘Specifically, the evidence must establish that the informant (1) was acting as a
government agent, i.e., under the direction of the government pursuant to a preexisting
arrangement, with the expectation of some resulting benefit or advantage, and



                                             6
(2) deliberately elicited incriminating statements.’” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 67 (Coffman); People v. Dement, supra, 53 Cal.4th at pp. 33-34.)
       When the informant is a jailhouse inmate, the requirement of agency is not
satisfied when law enforcement officials “merely accept information elicited by the
informant-inmate on his or her own initiative, with no official promises, encouragement,
or guidance.” (In re Neely (1993) 6 Cal.4th 901, 915.) “A preexisting arrangement,
however, need not be explicit or formal, but may be inferred from evidence of the parties’
behavior indicative of such an agreement.” (Coffman, supra, 34 Cal.4th at p. 67.)
Circumstances probative of an agency relationship include the government’s having
directed the informant to focus upon a specific person, such as a cellmate, or having
instructed the informant as to the specific type of information sought by the government.
(In re Neely, supra, 6 Cal.4th at p. 915.)
       As to the requirement of deliberate elicitation, actual interrogation by an informant
is not required in order to satisfy this element. (United States v. Henry, supra, 447 U.S.
at pp. 270-273.) Thus, where a fellow inmate, acting pursuant to a prearrangement with
the government, “stimulates” conversation with a defendant relating to the charged
offense (id., at p. 273), or actively engages the defendant in such conversation (In re
Wilson (1992) 3 Cal.4th 945, 954), the defendant’s right to the assistance of counsel is
violated under the Massiah rule. The defendant has the burden of demonstrating that
“the police and their informant took some action, beyond merely listening, that was
designed deliberately to elicit incriminating remarks.” (Kuhlmann v. Wilson (1986)
477 U.S. 436, 459.)
       B. Buard as an Agent of the Police
       Outside the presence of the jury, Harris’s defense counsel moved to exclude the
recorded statements on Sixth and Fourteenth Amendment grounds. Defense counsel
argued that the purported reason for the recorded conversation of Buard was that the
police were investigating Buard as a “potential suspect.” Defense counsel asserted that
he “ran” Buard and that it appeared he was never charged in any homicide investigation.
Defense counsel advised the court that Buard was in custody for possessing or selling

                                             7
cocaine, and that Buard was released from jail a few days later, after the prosecutor’s
office offered Buard “a simple possession and DEJ.” Defense counsel further contended
that Buard “may not have been DEJ-eligible.” Defense counsel thought it raised “a lot of
questions” regarding whether Buard was acting as an agent of the police to get a
statement out of Harris.
       The prosecutor argued the police reports indicated that the recording occurred due
to an investigation that was unrelated to Harris’s case. Buard was being investigated for
something “much more serious” than “just a simple dope case.” The prosecutor stated
that investigating homicide detective in Buard’s case did not know who Harris was until
the detective listened to the recorded conversation. The investigating detective then took
the initiative to contact the investigating officer in Harris’s case.
       The trial court ruled that Harris had not established that Buard was acting as any
sort of government agent, and there was no basis to exclude the entirety of the recorded
statements Harris made.
       We agree with the court and find that Harris failed to carry his burden of
demonstrating a violation of his Sixth Amendment right. Harris did not present any
evidence showing that there was a preexisting agreement between Buard and the police.
Harris essentially argued that the fact that Buard was released a few days after the
recorded conversation took place, and the fact that he had been offered a simple
possession and DEJ even though Buard might not have been DEJ-eligible, raised
“factual questions” as to whether Buard was acting as an agent for the police. In our
view, the trial court reasonably determined that the recorded statements were admissible
and Harris’s Sixth Amendment right was not violated, given the absence of any evidence
that the police had encouraged Buard to elicit information or indicated that to do so
would be to his benefit, or that Buard’s release from jail was other than in the normal
course for his charged offenses. (See Coffman, supra, 34 Cal.4th at p. 68.)
       Harris further contends that the court should have declared a mistrial after Officer
Raines testified that “Most of [jail cells] are not recorded . . . If you wish to have your
suspect placed in a recorded cell, you go down to jail division or call and speak to the

                                               8
watch commander or jail sergeant and request that.” We find that Harris’s argument
lacks merit because there was no evidence that Buard was purposefully placed into a
recorded cell with Harris even though the police knew which cells were recorded.
Moreover, Harris never moved for mistrial at trial and had waived it even assuming there
was an error. (People v. Jennings (1991) 53 Cal.3d 334, 383.)
       We also disagree with Harris that Buard was not required to be an informant agent
to make the evidence inadmissible. As stated above, the informant’s agency is the first
requirement that the defendant must establish to suppress the statements and prove a
violation of his or her Sixth Amendment right. Without establishing the agency
requirement, Harris failed to demonstrate that the trial court erred in admitting the
recorded statements even if Buard deliberately elicited statements from Harris in the jail
cell. (See Coffman, supra, 34 Cal.4th at p. 67.) Moreover, even assuming, arguendo, that
Buard was acting as the police’s agent, the transcript of the recorded conversation shows
that Harris mostly volunteered the incriminating statements and Buard did not attempt to
elicit these statements from Harris. Because Buard appeared to be a mere passive listener
or “listening post,” Harris’s constitutional right was not violated and therefore his
statements were admissible. (See Kuhlmann v. Wilson, supra, 477 U.S. at p. 459.)
II.    Additional Claims of Error Related to Recorded Jail Conversation
       Harris contends the admission of police expert testimony about the meaning of his
recorded statements, the admission of the recorded tape itself, and a highlighted 58 page
transcript of the tape, together with the prosecutor’s argument that Harris had failed to
explain his innocence in closing argument, created reversible error in the use of the taped
jailhouse statements. We disagree.
       Harris’s recorded statements contained a number of words and phrases that were
beyond the common experience of the jurors, as it included numerous uses of “street”
vernacular. At trial, a police expert testified to the meaning of various comments heard
on the tape. It was appropriate for the trial court to admit expert testimony to explain
those terms to the jury. (Evid. Code, § 801, subd. (a).) We agree with Harris that case
law has recognized that a police officer’s testimony often carries an aura of special

                                              9
reliability and credibility (see, e.g., United States v. Gutierrez (9th Cir. 1993) 995 F.2d
169, 172), but we are not persuaded that this required exclusion of the expert police
testimony at Harris’s trial. The test for reviewing a trial court’s ruling to admit expert
testimony is abuse of discretion (People v. Catlin (2001) 26 Cal.4th 81, 131) and we are
not persuaded that the trial court acted unreasonably. The conversation heard on the
jailhouse tape is not readily understandable in common experience, without the expert’s
explanatory testimony.
       Harris argues that the admission of the transcript of the jailhouse tape recording,
coupled with part of CALCRIM No. 358, created reversible error. Specifically, Harris
objects to the last sentence of CALCRIM No. 358, which instructed the jury: “Consider
with caution any statements made by the defendant tending to show his guilt unless the
statement was written or otherwise recorded.” Harris essentially argues that the written
transcript, coupled with CALCRIM No. 358, lessened the cautionary principles normally
attached to a defendant’s incriminatory statements. We are not persuaded there was
instructional error. The entirety of CALCRIM No. 358 correctly relayed to the jury the
legal principles that, when evidence of a defendant’s incriminating statements is
presented through the trial testimony of a witness, the evidence should be viewed with
caution, but, when evidence of a defendant’s incriminating statements is presented
through the defendant’s own written or recorded statements, it is up to the jurors to
decide how much importance to give to the statements in determining its verdict.
Assuming there was instructional error, we are not persuaded that reversal is required.
In our view, as analyzed above, the evidence of Harris’s guilt was predominated by the
eyewitness testimony of victim Watson.
       Finally, we find Harris’s argument unconvincing that, during the prosecution’s
closing argument, the prosecutor improperly commented on his failure to take the stand
and to explain his recorded conversation with Buard, in violation of Griffin v. California
(1965) 380 U.S. 609, 615. Griffin forbids either direct or indirect comment upon the
failure of the defendant to take the witness stand. (See People v. Hovey (1988) 44 Cal.3d
543, 572.) Specifically, it is error for a prosecutor to state that certain evidence is

                                              10
uncontradicted or unrefuted when that evidence could not be contradicted or refuted by
anyone other than the defendant testifying on his or her own behalf. (People v.
Murtishaw (1981) 29 Cal.3d 733, 757–758; see also People v. Bradford (1997) 15
Cal.4th 1229, 1339; People v. Hughes (2002) 27 Cal.4th 287, 371-372.)
       At trial, Harris failed to object to the statement that he now asserts constitutes
error under Griffin, and therefore we find Harris has waived his right to complain on
appeal. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1050–1051; see also People v.
Hughes, supra, 27 Cal.4th at p. 372.) Even considering the merits, we find that the
prosecutor’s argument, viewed in it’s entirety, show the prosecutor referring to the
recorded conversation and Harris’s failure to tell Buard that he was innocent or to deny
his guilt to Buard. In other words, the prosecutor was discussing the state of the evidence
–– the jailhouse conversation –– and not commenting on Harris’s decision not to testify at
trial. Accordingly, we conclude that the prosecutor did not commit any Griffin error.
III.   Continuance for New Trial Motion
       Harris contends his case must be remanded for a hearing on a motion for new trial.
Specifically, Harris argues the trial erred when it denied his post-conviction motion for a
continuance, which was coupled with a motion to compel a potential witness to turn over
a surveillance video. Harris argues a continuance was appropriate to afford newly
retained counsel sufficient the time to prepare a new trial motion. Harris argues his case
must be remanded so that his counsel may complete a new trial motion, and to have the
motion heard on the merits. We find no error.
The Factual Setting
       The charges against Harris were tried to a jury in July 2012. A public defender
represented Harris at trial. On July 16, 2012, the jury returned its verdicts. The trial
court set the sentencing hearing for August 21, 2012. The sentencing hearing was
thereafter continued or trailed a number of times for various reasons as follows. On
August 21, 2012 to September 10, 2012. On September 10, 2012, to September 19, 2012.
On September 19, 2012 to September 26, 2012. On September 26, 2012 to October 4,



                                             11
2012. On October 4, 2012 to November 6, 2012. On November 6, 2012 to November
13, 2012. On November 13, 2012 to November 15, 2012.
       On November 15, 2012, Harris made an oral motion to represent himself.
The court granted the motion, and reset the sentencing hearing for December 17, 2012.
On December 17, 2012, Harris requested more time to prepare, which the trial court
granted. The court reset the sentencing hearing for January 17, 2013. On January 17,
2013, Harris requested a 30-day continuance because he had not yet been placed in a pro
per module. The court granted Harris’s request for a continuance, but advised that this
would be the “final continuance” granted. The court reset the sentencing hearing for
February 20, 2013.
       On February 20, 2013, Harris relinquished his pro per status, and the trial court
appointed a private attorney, Dakar Diourbel, to represent Harris. Attorney Diourbel
requested a 30 day continuance to prepare for sentencing and a possible motion for new
trial. The court reset the sentencing hearing for March 21, 2013. On March 21, 2013,
the trial court granted a defense motion for a continuance. At that time, the court advised
attorney Diourbel: “This will be the final continuance.” The court reset the sentencing
hearing for April 22, 2013. On April 22, 2013, the trial court granted a prosecution
motion for a continuance. The court reset the sentencing for May 1, 2013.
       On the May 1, 2013 sentencing date, attorney Diourbel filed a defense motion for
a continuance. The motion argued that additional time was needed so that a private
investigator could interview the relevant witnesses in the case, and so defense counsel
could locate and subpoena a witness to testify at a hearing on an anticipated motion for
new trial. Further, that more time was needed to gather and examine exculpatory
evidence.
       The trial court found that the motion for a continuance was not timely, but invited
attorney Diourbel to explain the “extenuating circumstances” justifying a further
continuance. Attorney Diourbel explained that he was trying to arrange for an
unidentified out of state witness to testify at a motion for new trial, and that it was
“difficult to coordinate people who have jobs and children.” Defense counsel also

                                              12
explained that he had filed a motion that morning, seeking a court order directing the
Fiesta Inn (located on South Central Avenue in Los Angeles) to turn over video
surveillance footage. Defense counsel asserted that the video was “very relevant,”
but did not expressly explain how so. The implied but unstated proposition was that the
surveillance footage would show that Harris was at the Fiesta Inn on the day of the
shootings.
       The trial court denied the defense motion for a continuance. The court found the
motion was not timely, and that defense counsel had already been given “ample time to
put together any possible motion for new trial.” At the same time, the court denied the
defense motion directed at the Fiesta Inn. The court did not expressly state reasons for
denying the motion. The court indicated that it would “allow a brief continuance for one
week if counsel want[ed] to file a sentencing memorandum.” The court reset the
sentencing hearing for May 13, 2013, and ordered any defense sentencing memorandum
to be filed no later than May 9, 2013, “in order to have that considered by the court.”
       In summary, the jury convicted Harris on July 16, 2012, and the sentencing
hearing was eventually set to be heard 10 months later on May 13, 2013.
       On May 9, attorney Diourbel filed a sentencing memorandum. On May 10, 2013,
attorney Diourbel filed a motion for new trial. The new trial motion argued that alibi
witnesses –– identified as Arthur Glover, Yana Hayes and “Monique” –– had not been
called to testify at trial, and that video surveillance footage from the Fiesta Inn would
“likely” show Harris’s innocence. The motion stated that the manager of the Fiesta Inn
was ready to release the video surveillance footage “with a court order” The motion also
stated that victims Stamp and Watson had recanted their accusations against Harris. No
declaration was submitted from either the manager, Stamp, Watson, or any of the alibi
witnesses.
       At the hearing on May 13, 2013, attorney Diourbel stated to the trial court that he
was not then able to proceed with the motion for new trial due to the unavailability of
witnesses. Counsel stated that Stamp was then residing in Arizona, and that, while she
wanted to testify on behalf of Harris, she had “transportation issues.” Counsel also stated

                                             13
that another witness, Arthur Glover, was in county jail, but was unavailable because he
refused to come out of jail. Counsel represented that Glover knew the identity of the
“true perpetrator.” Counsel did not name the true perpetrator. There was no request for
continuance made in the papers filed or at the court hearing on May 13, 2013.
       The trial court ruled that it would “not be considering” the motion for new trial
because it was “not timely filed,” and would “not be considering any document” filed on
May 10, 2012 “as a document not timely filed.” The trial court then proceeded with the
sentencing hearing and sentenced Harris as indicated above.
       Section 1050 prescribes the procedures and standards for continuances in criminal
cases. Under section 1050, a trial court has broad discretion to grant or deny a request for
a continuance to prepare a motion for new trial. (People v. Alexander (2010) 49 Cal.4th
846, 934.) To show good cause for a continuance to prepare a motion for new trial, the
defendant must demonstrate due diligence. (Ibid.)
       The record summarized above belies Harris’s argument that the trial court abused
its discretion by denying a further continuance. The court denied a defense motion for a
continuance on May 1, 2013, but then continued the matter to May 13, 2013 in any event
to allow the defense to file a sentencing memorandum. On May 10, 2013, Harris filed his
motion for new trial. The motion did not include a request for a further continuance; on
the contrary, the motion indicated that the defense would present evidence in support of
the new trial claims at the time of the hearing then-set to be heard on May 13, 2013.
On May 13, 2013, Harris’s counsel advised the court that he was “unable to go forward
with that motion due to unavailability of [the defense’s] witnesses.” We do not see
another request for a continuance in defense counsel’s statements to the trial court at the
hearing on May 13, 2013.
       To the extent Harris argues the court abused its discretion in denying the request
for continuance made on May 1, 2013, any such abuse was of no consequence because
the court on that date, its own motion, continued the sentencing hearing to May 13, 2013
in any event. Because there was no request on May 13, 2013, we see no error in denying
a further continuance.

                                             14
       Apart from these specific elements, the record shows no abuse of discretion in
declining a continuance on May 1st or on May 13th or any date. Harris’s motions for
continuances, and the statements of his counsel, do not include evidence, e.g., affidavits
of his new trial witnesses, establishing the defense’s assertions about the difficulties in
obtaining the presence of witnesses for a new trial hearing. There is no evidence in the
record detailing the efforts (e.g., dates and procedures) that were made to locate and bring
any witness to court, or explaining why such efforts could not have been pursued earlier.
And equally important, there is no evidence in the record to show that an additional
continuance was likely to be useful, i.e., was likely to produce helpful evidence.
(People v. Snow (2003) 30 Cal.4th 43, 76.) Harris’s presentations did not include
evidence to show the facts which might make a difference at a new trial. Bald assertions
by counsel that evidence exists does not show a likelihood that the evidence would
actually be of use at a new trial. The trial court did not abuse its discretion.
       In addition, the trial court did not err in ruling that it would not consider Harris’s
motion for new trial. First, Harris’s counsel in practical effect withdrew the motion for
the stated reason that he did not have any evidence to present. When a defendant
withdraws a new trial motion, the trial court has nothing upon which to act. (People v.
Day (1988) 201 Cal.App.3d 112, 120.)
       Assuming the trial court erred in not conducting a hearing on Harris’s new trial
motion, we will not reverse because the record on appeal does not demonstrate that a
miscarriage of justice ensued. (People v. Braxton (2004) 34 Cal.4th 805, 817.) A
miscarriage of justice may be found in a no-ruling context on a motion for new trial in
either of two circumstances. First, when a reviewing court determines from the record
that the defendant’s new trial motion should have been granted as a matter of law, or
second, when the record persuades that the trial court would have granted the motion and
that granting the motion would not have been an abuse of discretion. (Braxton, supra,
34 Cal.4th at p. 817.)




                                              15
       Harris’s motion should not have been granted as a matter of law because he did
not submit evidence tending to show that a new trial would have not been of any benefit.
There may possibly be something that could be done by a habeas petition hereafter, but
on the record on appeal, there is nothing of substance to support granting a new trial.
For the same reason, we are satisfied that the trial court would have granted Harris’s
motion as a matter of discretion because, again, Harris’s motion was not supported by
evidence. For example, as to the Fiesta Inn surveillance video, Harris’s motion only
offered the written statement from his counsel (in the motion’s text, not in declaration
form) that the video would “likely document[]” that Harris had been present at the Inn on
the day of the shootings. No explanation is given as to why such a likelihood existed.
Even assuming the video tape could be properly authenticated as to the date of the
shooting, there is no statement from any witness saying that they had even looked at the
video, let alone possibly identified Harris. A motion for new trial based on newly
discovered evidence requires a showing that a different result is reasonably probable.
(People v. Verdugo (2010) 50 Cal.4th 263, 308.) We reiterate again, that there is no
evidence in the record to support such a conclusion in Harris’s current case, only vague
speculative assertions.
       Further, a motion for new trial based on newly discovered evidence requires a
showing that the evidence could not have been discovered and produced at trial with
reasonable diligence. (People v. Soojian (2010) 190 Cal.App.4th 491, 512.) There is no
explanation in the record why Harris could not have discovered the evidence earlier than
May 2013. We find this particularly true, when his claim is that it was he who was at the
Fiesta Inn; he must have know of his defense from even before trial. If Harris claims he
did not learn of the existence of the video surveillance tape until later, he never presented
evidence to show how he discovered its existence or explaining why he could not have
made the discovery earlier.
       Finally, we find no abuse of discretion in the trial court’s ruling on May 1, 2013,
denying Harris’s request for a court order directing the Fiesta Inn to turn over video
surveillance. As we have explained repeatedly above, there is no evidence in the record

                                             16
on appeal to support the conclusion that there was any material of value on the purported
video surveillance tape. In actuality, there is no evidence in the record that such video
surveillance tape in fact existed, only statements of counsel that the tape would likely be
helpful. Because Harris did not show justification for a court order for production of the
evidence, the court did not act unreasonably in denying Harris’s motion.
IV.    Sentencing
       Harris contends the trial court improperly sentenced him to the maximum prison
term. More specifically, Harris argues the trial court imposed the maximum sentence as a
form of sanction because he declined to accept a plea bargain before trial. Further, Harris
argues the trial court relied on improper factors in imposing a greater sentence. We find
no sentencing error.
       Harris is correct that a trial court may not sentence a defendant more harshly for
exercising his or her constitutional right to trial. (In re Lewallen (1979) 23 Cal.3d 274,
278.) Accordingly, the issue presented to us on appeal is whether the record establishes,
either directly or by way of reasonable inference, that this is what occurred in Harris’s
case. In undertaking an examination of this issue, we are mindful that the mere fact a
defendant received a more severe sentence than he or she was offered during plea
negotiations “does not itself” support a finding that the defendant was penalized for
exercising his constitutional right to trial. (People v. Szeto (1981) 29 Cal.3d 20, 35.)
       On the day Harris’s case was called for trial, the following exchange occurred:
       “THE COURT: Mr. Harris, sir. I just wanted to bring you out because I like to do
       this in every case that I have. We’re here for trial, sir. If you’d like to go to trial,
       sir, I guarantee you will get a very fair trial. I kind of want to let you know what it
       is that you’re looking at. [¶] Apparently, in your case, the maximum sentence is
       28 years in state prison. The offer that the district attorney made to you at this
       time is 32 [sic] years in state prison, which is a little bit less than half.
              “Once again, you have a right to have a trial. If you have a trial, sir, it’s
       going to be a very fair trial, but I can tell you, in going into it in light of the
       conduct in this case, which is alleged against you, in light of your record, if it

                                               17
       doesn’t go your way, chances are quite high that you’re going to get a lot closer to
       that 28 years than you are to 13 years.
              “If you have any inkling, sir, that you’d like to take an offer where you can
       serve – save yourself quite a few years in prison, you need to do that right now
       because once the case goes to trial and once I bring that jury in here, then you’re
       looking at being on the hook for the full 28 years in prison.
              “So it’s certainly up to you, sir. If you want to go to trial, you can have a
       trial, but you can save yourself quite a bit of time if you’re thinking about taking
       the offer at this time. I’m sure you want to talk about that, but I always like to let
       the defendants know right upfront how I see the case.
              “Do you want to have a chance to talk to you lawyer about it, or is it
       something that ––
       “[HARRIS]: No. I’m not going to take this, nothing like that.
       “THE COURT: Okay. That’s fair enough, sir.”
       After the jury returned its verdicts, the prosecution filed a sentencing
memorandum arguing for imposition of the maximum sentence of 25 years and 4 months
in state prison. The prosecution’s sentencing memorandum argued there were a number
of factors in aggravation, including, among others, that Harris’s crimes involved great
violence reflected in the fact that he shot at two victims on two separate occasions, and
that he used a firearm, and the victims were particularly vulnerable in that they were
targeted without warning and had no means to protect themselves from serious harm. In
sum, the prosecution argued that Harris’s actions showed a high degree of viciousness
and callousness, reflecting an extreme danger to the community.
       At the sentencing hearing, the trial court stated that it was familiar with the case,
and that it had read both the prosecution and defense sentencing memoranda. The court
then pronounced sentence as follows: The court selected count 5 (one of Harris’s four
convictions for assault with a firearm) as the base term, and imposed the upper term of
4 years. In imposing high term, the court stated that it found the crime involved great
violence, the victims were vulnerable, and Harris had a “very lengthy” criminal history.

                                             18
The court stated that it found no factors in mitigation. The court added a mandatory 10
year term for the firearm enhancement pursuant to section 12022.5, plus a three-year term
pursuant to Health and Safety Code section 11370.2, subdivision (a), which Harris had
admitted. For counts 6, 7 and 8 (Harris’s three remaining convictions for assault with a
firearm), the court sentenced Harris to consecutive terms of 1/3 the mid-term, which was
1 year per count, plus consecutive terms of 1/3 of the firearm enhancement, which was
another 1 year and 4 months on each count. For count 2 (possession of cocaine base), the
trial court sentenced Harris to a consecutive term of 1/3 the mid-term, which was 16
months. The court ordered imposition of sentence stayed as to counts 1 and 3 (shooting
at an occupied motor vehicle) and count 4 (possession of a firearm by a felon) pursuant to
section 654.
       In our view, the record does not show that the trial court punished Harris because
he declined the prosecution’s plea offer, and opted to go to trial. To the extent Harris’s
argument is that the trial court’s pre-trial comments, recounted in full above, show the
court threatened that it was going to impose the maximum sentence on Harris if he did
not accept the prosecution’s plea offer, we disagree. As we read the record, it shows no
more than that the trial court advised him of the maximum possible sentence he could
receive after trial, so he could meaningfully assess whether to accept the prosecution’s
plea offer of 13 years. The trial court’s pretrial comments do not have any tendency in
reason to show the court punished Harris, posttrial.
       This brings us the question of whether there is any evidence from the sentencing
hearing to support Harris’s argument that the trial court punished him with a longer
sentence for deciding to go to trial. Harris’s arguments on appeal make no reference to
any comments by the trial court at the time of sentencing which might tend to show the
court was punishing him for having gone to trial. For this reason, we find Harris’s
reliance on People v. Morales (1967) 252 Cal.App.2d 537 to be unpersuasive. In
Morales, the trial court stated at the sentencing hearing that it was “‘very much
disturbed’” the defendant had chosen to go to trial and then not put any effort into putting
on a defense. The trial court also stated that, if a defendant did not have a defense but

                                             19
still opted to go to trial, then “‘he should suffer some additional sanction.’” (Id. at pp.
544-547, fn. 4.) In Harris’s case, he points to no comments at his sentencing hearing with
such a tenor. On the contrary, all Harris does in his arguments on appeal is point out that
the trial court “could have” formulated a shorter sentence that it did. This is not the type
of showing which will establish a claim that the trial court punished a defendant for
exercising his or her right to trial. (People v. Szeto, supra, 29 Cal.3d at p. 35.)
Other Claims of Sentencing Error
       Within the overall framework of his argument that the trial court punished him at
sentencing for exercising his right to go to trial, Harris raises claims of sentencing error,
or, perhaps more accurately, selectivity in sentencing. Harris’s point is that because these
more discrete errors or selectivity resulted in a greater sentence, it is further proof that the
trial court punished him for going to trial. We find no such errors or selectivity problems,
and, thus, find no sentencing issues tending to support Harris’s overall claim that the trial
court punished him for going to trial.
1.     Use of Sentencing Factors
       Harris contends the trial court improperly relied on sentencing factors which did
not apply in sentencing him to the upper term on count 5 and to the upper term on the
firearm enhancement attached to count 5. We disagree.
       The evidence at trial showed that Harris shot at two unarmed victims on two
separate occasions. In both instances, the victims were confined in a motor vehicle, and
Harris acted without warning. Under these circumstances, we are satisfied that the trial
court properly found Harris’s crimes to involve great violence and vulnerable victims.
(See, e.g., People v. Esquibel (2008) 166 Cal.App.4th 539, 558 [unarmed victims in a
public park shot at without warning were vulnerable].) The record also supports the trial
court’s finding that Harris had a lengthy criminal history. Harris was incarcerated in state
prison on four separate commitments, and had multiple convictions going back to his
days as a juvenile for crimes such as burglary, robbery, gun possession, accessory to
murder and sale of narcotics. Based on this record, we cannot say the trial court erred in
selecting upper terms as to count 5. Further, the selection of upper terms is certainly not

                                              20
so out of line that it tends to show the court punished Harris more severely because he
had exercised his right to go to trial.3
       Our conclusion is the same as to the imposition of consecutive terms as opposed to
concurrent terms. A court has broad discretion to sentence consecutively or concurrently
(see People v. Clancy (2013) 56 Cal.4th 562, 579), and we see nothing in the record to
show the decision to sentence consecutively in Harris’s case was based on retaliation for
going to trial, rather than based on the seriousness of his offenses.
2.     Section 654
       Harris contends the trial court “could have” stayed imposition of sentence on
counts 7 and 8 (the two of his four convictions for assault with a firearm involving the
second shooting at the taco stand). He argues those assault offenses were committed
closely in time and place to counts 5 and 6 (the two of his four convictions for assault
with a firearm involving the initial shooting on the public street). We disagree.
       Section 654, subdivision (a), provides: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. . . .” Section 654 “is intended to
ensure that defendant is punished ‘commensurate with his culpability.’” (See People v.
Harrison (1989) 48 Cal.3d 321, 335.) Accordingly, its protection “has been extended to
cases in which there are several offenses committed during ‘a course of conduct deemed
to be indivisible in time.’” (Ibid.) “It is defendant’s intent and objective, not the
temporal proximity of his offenses, which determine whether the transaction is
indivisible.” (Ibid.) If the defendant had only a single intent and all of the offenses were
incidental to that one objective, he may be punished only once. If, on the other hand, he
harbored multiple criminal objectives, he may be punished for each statutory violation


3
       The trial court did not impose an upper term on Harris’s drug conviction; the court
imposed 1/3 the mid-term. We thus are unsure how to assess Harris’s argument that the
court’s statements about “a large amount of contraband” affects his argument regarding
the length of his sentence.

                                              21
“‘even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct.’” (Ibid.) The defendant’s intent and objective is a factual
question for the trial court, and its determination whether 654 applies is reviewed under
the substantial evidence standard of review. (See, e.g., People v. Petronella (2013) 218
Cal.App.4th 945, 963-964.)
       In Harris’s current case, the evidence showed he shot at the victims’ vehicle on
50th Street near Hooper Avenue, following which they drove to a local police station
where victim Stamp went inside while victim Watson waited in their car. Later, the
victims drove to a taco stand at the corner of Vernon Avenue and Hooper Avenue, where
they ordered food and then went back to their car to wait. As they were waiting, Harris
drove into the parking lot and shot at the victims a second time.4 The inescapable
conclusion from this scenario of facts is that there was a significant break between the
two shooting events. These were separate incidents, and Harris without doubt had time
after the first shooting incident to consider and reflect before moving to a new location
and shooting a second time. Section 654 could not reasonably be applied in Harris’s case
as to counts 7 and 8. (See, e.g., People v. Louie (2012) 203 Cal.App.4th 388, 399; People
v. Lopez (2011) 198 Cal.App.4th 698, 717-718; People v. Rosas (2010) 191 Cal.App.4th
107, 110.) Harris is wrong that the trial court “could have” applied section 654, and,
accordingly, the court’s failure to do so is not an indication that the court punished Harris
for exercising his right to go to trial.
3.     Apprendi
       Harris contends the trial court could not use the aggravating sentencing factors it
cited unless the jury made findings as to those factors within the meaning of Apprendi v.
New Jersey (2000) 530 U.S. 466 and Cunningham v. California (2007) 549 U.S. 270
(Cunningham). We disagree.


4
       We may take judicial notice that the Newton Police Station is at 3400 South
Central Avenue, a little more than one mile north from Hooper and 50th. From the police
station back south to Hooper and Vernon is a little less than one mile. The corner of
Hooper and 50th is about seven blocks south of Hooper and Vernon.

                                             22
       Cunningham was decided under an earlier sentencing scheme in California which
included provisions that made the mid-term the presumptive sentencing choice, and then
allowed for a greater sentence based on aggravating circumstances determined by a trial
court. In Cunningham, the United States Supreme Court ruled that judicial fact finding to
increase a sentence violated a defendant’s Sixth Amendment right to trial. In response to
Cunningham, the Legislature changed the sentencing scheme addressed in Cunningham,
removing the mid-term presumption, and giving trial courts the discretion to impose an
upper term sentence without engaging in additional fact finding. (See § 1170, subd. (b).)
This change went into effect on March 30, 2007 (People v. Sandoval (2007) 41 Cal.4th
825, 836, fn. 2), long before Harris committed the crimes involved in his current case,
and long before he was sentenced in his current case.
       For the reasons explained above, Harris has no basis for complaining about the
imposition of an upper term. The trial court had the authority, as a matter within its
discretion, to impose the upper term based on its own assessment of potential aggravating
circumstances. We find the trial court did not abuse its discretion because it cannot be
said that the trial court’s sentencing decision was unreasonable. Because the trial court
did no more than what it was allowed to do, we find the trial court’s sentencing decision
is not further proof that Harris was punished with a greater sentence for exercising his
right to go to trial.
                                     DISPOSITION
       The judgment is affirmed.



                                                        BIGELOW, P.J.

We concur:


               RUBIN, J.                  GRIMES, J.




                                            23
RUBIN, J., Concurring:


       I have signed the majority opinion and agree with its analysis. I write separately
only to express my concerns with the following statement by the trial court:
       “Once again, you have a right to have a trial. If you have a trial, sir, it’s going to
be a very fair trial, but I can tell you, in going into it in light of the conduct in this case,
which is alleged against you, in light of your record, if it doesn’t go your way, chances
are quite high that you’re going to get a lot closer to that 28 years [the maximum] than
you are to 13 years [the plea offer].”
       This statement raises in my mind whether the trial court may have prejudged the
sentence it would likely give defendant – closer to 28 years than 13 years – before it had
heard trial testimony and before defendant had been given an opportunity to argue the
sentence post trial. The court’s statement obviously did not coerce defendant into taking
a plea bargain because he rejected the disposition and was convicted after trial. Although
I conclude that the statement did not rise to the level of error and realize it may be typical
of statements made by trial courts in plea disposition discussions, I observe that there are
unintended risks of either of coercion or prejudging when it is suggested pretrial that post
trial a defendant is likely to get a specific sentence, such as something close to the
maximum. Nevertheless, I see no error in this case.




                                                             RUBIN, J.




                                                1
