Opinion
A150748
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL HERBERT HORACE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C177275)
A jury convicted defendant and appellant Michael Herbert Horace of the first degree murder of Tass Jackson in violation of Penal Code section 187, subdivision (a) with an enhancement for discharging a firearm in violation of section 12022.53, subdivision (d). Defendant appeals on four grounds. First, defendant claims the trial court erroneously refused to provide the jury with a video that had been played during trial but was not admitted into evidence. Second, he claims the court improperly failed to consider newly discovered evidence in support of his motion for a new trial. Next, he claims the trial court violated his Sixth Amendment rights by failing to rule on his motion to discharge his retained counsel. Finally, defendant contends his case should be remanded to the trial court to consider whether to impose the now-discretionary firearm enhancement. We conditionally reverse defendant's conviction and remand for appropriate proceedings concerning defendant's counsel and sentencing as discussed in greater detail below.
Unless otherwise stated, all statutory references are to the Penal Code.
BACKGROUND
A. The Shooting
Four people were present when Jackson was shot and killed on April 29, 2015, at around 12:58 a.m. at Kali's Late Night Recycle (Kali's) in Oakland: Larry Williams, Lawson Venson, Albert Munn, and Denetria Clark. Williams was the owner of Kali's. Venson was Kali's security guard. Jackson and Munn worked for Kali's. Clark was Munn's girlfriend.
Just before the shooting, Williams was closing up Kali's and telling Venson that he was about to leave. Munn had joined Clark, who was waiting for Munn while sitting in his car parked across the street from Kali's.
Jackson passed Munn's car as he walked to the front of the car parked next to it. Jackson then began arguing with someone who had walked up to Munn's car. The person arguing with Jackson fired a single shot at him. Jackson crumpled to the ground. Williams overheard the argument, looked outside, asked Venson to hand him his gun, and fired multiple shots at Jackson's shooter. The shooter jumped into a truck that drove off.
After the shooter left, Clark called 911. Clark, Munn, and Williams left before police arrived.
Oakland Police Officers Joseph Coleman and Maricruz Romero were dispatched at 12:58 a.m. based on a ShotSpotter activation, which indicated eleven shots had been fired in the area. Dispatch received the first emergency call five minutes later. When the officers arrived, two bystanders flagged them down and directed them to Jackson.
Officers Coleman and Romero found Jackson curled up in a fetal position on the ground near a car and a fence. Jackson was not breathing. Officer Romero tried to help Jackson while Officer Coleman ensured that nobody came into the area until more officers arrived on scene to block it off. Jackson was declared dead less than half an hour later.
As Officer Coleman waited for more officers, one of the bystanders directed him to a cell phone lying on the ground on the opposite (west) side of the street from Jackson's body. Officer Coleman ensured that the phone was not moved until an evidence technician collected it.
Officer Romero also directed Officer Coleman to shell casings. Officer Coleman ensured that the casings were not moved by putting down folded manila cards next to each one. An evidence technician later collected seven casings and two copper bullet jacketing pieces on the sidewalk near Kali's gates. No casings were found near where Jackson's shooter fired, suggesting the gun that killed Jackson was likely a revolver because a revolver does not eject casings when fired.
An autopsy of Jackson's body showed two entrance wounds, one on his left upper arm and another on his left torso; and two exit wounds, one on his left arm and one on the right back side of the body. It was unclear whether the wounds were caused by two separate bullets, or by one bullet "pass[ing] through the left upper arm, exit[ing]the arm, and reenter[ing] at the torso." But it is clear that a bullet entered Jackson's left torso, traveled through his left lung, aorta, and right lung, and then exited his body, killing him. B. The Investigation
1. Identifying Witnesses
Detective Tran was assigned to investigate Jackson's homicide. He arrived at Kali's a little over an hour after the shooting and spoke to the two bystanders who had first met police at the scene.
In the days that followed, Detective Tran continued searching for witnesses. Through his investigation, Detective Tran learned that Clark was present during the shooting. Detective Tran contacted Clark and interviewed her. During her interview, Clark said that she was inside Munn's car, Munn was standing outside the driver's side of his car, and the shooter was just outside of the car next to her when the shooting happened. Clark described the shooter as an older male with a gray beard. Detective Tran had yet to identify defendant as a possible suspect.
Two days later, Detective Tran interviewed Munn. Detective Tran still did not suspect defendant. During his interview, Munn estimated the shooter was in his 50s and around five feet nine to five feet ten inches tall with facial hair. Munn explained where he and other witnesses were at the time of the shooting using a hand-drawn map.
Nearly a month after he first interviewed Clark and Munn, Detective Tran learned Williams had also been present at the shooting when Williams went to an Oakland police station of his own accord. During his interview with police, Williams said he had seen the shooter's gun discharge and Jackson fall. He described the shooter as an "older" "black guy" who was shorter than him, but said it was too dark for him to identify the shooter.
The day after he spoke with police, Williams gave the gun he shot that night to the police. A criminalist later confirmed that the casings and bullet jacket pieces were from Williams' .45 caliber gun.
2. Determination of Cell Phone Owner
After an evidence technician swabbed the cell phone collected at the scene of the shooting for DNA, Detective Tran took possession of the cell phone. Although the cell phone was protected with a pattern passcode, Detective Tran was able to access the cell phone's SIM card and learned the phone number associated with it. He called that phone number and listened to the voicemail; he later recognized the speaker on the voicemail as defendant.
At trial, a criminalist testified the amount of DNA on the cell phone was too low to eliminate defendant as a possible contributor. Nevertheless, it was enough that she concluded the phone had the DNA of two people and that one of those two people was male.
Detective Tran further determined that T-Mobile was the carrier for the cell phone. Using a warrant, he obtained the phone's records from T-Mobile. He reviewed the records and concluded the cell phone was likely a government prepaid phone because the records contained program codes associated with such phones and did not include payment information.
While Detective Tran had the cell phone, it received a call from someone saved on the cell phone's contact list as "My Kin." Detective Tran checked the registration of that phone number and then contacted Tamara Shepard. Based on his conversation with Shepard, Detective Tran connected defendant with the cell phone found at the shooting.
Eventually, Detective Tran also accessed the information stored on the cell phone itself and printed out some of the cell phone's contents, including a contact list. The printout showed that the cell phone had contact information for people defendant knew and the phone had been used to call defendant's friend, Ronald "Mo" Baptiste, for approximately 30 minutes just before the murder.
3. Photograph Lineup
The same day that Detective Tran connected defendant with the cell phone, he had Clark and Munn come to the police station to look at a photograph lineup. To conduct the lineup, Detective Tran used a double-blind system, in which another detective unassociated with the investigation presented the lineup to avoid influencing the witness. That detective spoke with Clark and Munn separately and ordered the photographs differently each time he presented the lineup. Both Clark and Munn identified defendant as the shooter.
4. Defendant's Arrest
On June 22, 2015, Officer Paul Espinoza received an email from Detective Tran instructing him to serve an arrest warrant for defendant at an automobile body shop three and a half blocks from the shooting. When he and his partner, Uriel Martinez, arrived at the body shop, they knocked on the door and pretended to be interested in buying a car parked nearby. A person spoke to the officers through a closed door but refused to open. The officers decided to try serving the warrant at defendant's home but then returned to the body shop.
As Officers Espinoza and Martinez returned, they saw defendant scraping paint off a car window. They arrested him and seized a black phone from him. During the arrest, Officer Espinoza noticed a nearby recreational vehicle (RV). The officers asked defendant about the RV. Defendant stated his sister would secure the RV and that she had the keys, but he never claimed to own it.
Detective Tran arrived on the scene as defendant was being arrested. Detective Tran entered the RV to ensure no one was inside before having it towed. While inside, he saw defendant's identification card, keys, and wallet sitting in plain view.
Detective Tran interviewed defendant at the precinct. Defendant admitted the cell phone found at the scene of the shooting belonged to him and provided the pattern pass code. He claimed that he had lost the phone a month before the shooting. But later during the same interview he said it was stolen from his vehicle. In either event, defendant claimed that he no longer had the phone on the night of the shooting.
5. Search of the RV
Detective Tran obtained a search warrant for the RV. The day after defendant's arrest, an officer and evidence technician executed the search warrant. Inside the RV, they found a medical document and a storage receipt with defendant's name and a .357 caliber revolver and six rounds of live .357 ammunition. As noted, police suspected that a revolver had been used to shoot Jackson because no casings were found near where the shooter fired at Jackson. C. The Trial
1. Prosecution's Case-in-Chief
At trial in July 2016, the prosecution called several witnesses whose testimony was mostly consistent with the above summary of facts. However, the testimony from the three eyewitnesses—Clark, Munn, and Williams—varied from their original statements to police and slightly from each other. Their testimony is summarized below.
a. Clark
Clark was sitting in the front passenger seat of Munn's parked car across from Kali's while watching a DVD as she waited for Munn. Jackson, whom Clark had known for a few months, greeted her as he passed her sitting in Munn's car. Clark continued watching her DVD until she heard Jackson and another person arguing to her right, standing between Munn's car and the car parked to its right.
Clark saw Jackson walk to the opposite side of the car parked to her right and heard him say, "It's not that serious, whatever I done. I'm sorry." The other person leaned over the top of the car with a gun in his hand. Clark heard shots, saw Jackson fall, and ducked. She heard a total of three shots, one from Jackson's shooter and two more from behind her. Clark did not see Williams shooting from behind her.
Clark got out of the car and went to Jackson, who was lying in a pool of blood. The shooter got into a truck that drove off. Clark called 911 and left with Munn before police arrived.
Clark described the shooter as an older man who was tall with a dark complexion and a gray beard. She confirmed that she had identified the shooter in one of the photographs she was shown during the lineup. But at trial, she claimed she did not actually recognize anyone in the lineup as the shooter.
b. Munn
Munn finished working at Kali's at around 12:50 a.m., just before the shooting. After work, he walked to his car parked across the street from Kali's, where his then-girlfriend Clark was watching a movie in the front passenger seat.
Munn sat down in his car and began watching a movie with Clark when he heard Jackson yelling. Munn saw Jackson run toward his car, so he got out and stood next to the driver's door. Jackson slid across the hood of the car parked next to Munn's car.
Munn saw a Black man in his 50s wearing a hat and holding a big, long gun following Jackson. That person walked over between Munn's car and a car parked to the right of Munn's.
Then Munn heard gunshots. He dropped to the ground. A bullet shattered the back window of Munn's car and left a bullet hole in his front windshield. When the shot was fired, Jackson dropped to the ground. Munn heard a truck that had been parked across the street start up and drive away. As Munn stood up, he saw two people inside the truck.
After the truck left, Munn checked on Jackson, who appeared to take his last breath. He noticed a cell phone lying in the street near where the truck had been parked. He picked it up for a moment. Munn explained that he decided not to take the cell phone, so he wiped it off with his shirt and put it back near where he had found it. Munn was impeached with his initial statement to police that he told someone else not to touch the phone because it could be the shooter's phone.
Clark called 911. Munn and Clark then got into his car and left before police arrived.
Munn never saw Williams with a gun in his hand that night. Munn claimed that he identified the person whom he believed Detective Tran wanted him to identify during the lineup. He testified that no one in the courtroom looked like the person in the photograph whom he had identified as the shooter. Munn also said he did not see defendant on the night of the shooting.
c. Williams
Williams was closing up Kali's at around 12:50 a.m. on the night of the shooting. He had just told Venson that he was leaving when he heard Jackson shout his name four to six times. Williams looked outside and saw Jackson standing with hands up and another person holding a gun standing eight to ten feet from Jackson. It was too dark for Williams to identify the other person.
Just then, he heard Jackson say, "Don't shoot me." The other person responded, "You don't know who you're f'in' with." Williams saw Jackson try to hop a fence only to slip. A muzzle flashed, and Jackson fell. Williams grabbed a gun Venson was holding and fired three to five shots at the shooter, who was running to a nearby truck.
Williams saw the shooter get into the truck's driver seat and drive away. The truck appeared to be brown and beige, but the darkness made it difficult to tell the exact color. After the truck left, Williams saw a phone in the middle of the street and asked whose phone it was. When no one claimed it, he told Venson to look after the phone. Williams left because he was scared he would have to testify if he stayed.
2. Defendant's Case-in-Chief
Defendant testified in his defense and called Euvernon Byrd, Thomas Brown, Wayne Shaw, and Ronald "Mo" Baptiste, who were with him at different points on the night of the shooting, to corroborate his testimony.
Defendant testified that he was working with others at the automobile body shop on the night of the shooting. He explained that he had a lot of motorcycles to repair that week because there was large motorcycle ride that upcoming weekend. He likely worked until around 4:00 a.m. One of his friends, Baptiste, was there until around 2:00 or 3:00 a.m. Defendant insisted that he did not speak to Baptiste over the phone for about 30 minutes on the night of the shooting because they were working together the entire night.
Defendant's witnesses testified that they worked with defendant and were at the shop with him on the night of the shooting. Byrd and Brown testified that they had been watching a Warriors game at the shop with defendant but left before the time of the shooting. Shaw and Baptiste claimed that they were with defendant at the shop for at least an hour after the shooting. Baptiste said that he never got a call from defendant the night of the murder and that the call from defendant's phone to his phone must have been a "butt dial."
Turning to the cell phone found at the scene of the shooting, defendant testified that people would contact him at that number by calling Angie Stone, who obtained parts for the shop. Stone answered defendant's calls and then texted him with messages, so he could focus on his work. Stone paid for the phone.
Defendant claimed that he lost access to that cell phone three or four weeks before the shooting. He had asked Stone if he could retrieve some numbers from the phone, but Stone told him she no longer had it. Defendant claimed that he had a falling out with Stone and had not spoken to Stone since April 28, 2015. Baptiste and Byrd testified that they knew Stone, but Shaw testified that he did not know her even though he worked and lived at the shop.
Defendant attempted to explain several inconsistencies between his testimony and post-arrest statements about his phones. Defendant claimed he never mentioned Stone because Detective Tran had never asked about her. He understood Detective Tran's questions to be about the phone he had when he was arrested and not the phone found at the scene of the shooting. He also claimed that he used the same pattern to unlock all his phones.
Defendant also attempted to distance himself from the RV. He claimed that the RV belonged to his friend Jo-Jo, and explained that his wallet and vehicle registration paperwork were found there because prior to defendant's arrest, he gave these items to Jo-Jo in order to have Jo-Jo register vehicles defendant intended to sell in San Diego. He further claimed that he had been working on the RV for Jo-Jo and that he had given Jo-Jo the medical paperwork that officers found for a prior trip he and Jo-Jo had taken. Defendant testified he had never before seen the gun found in the RV.
Neither Angie Stone nor Jo-Jo testified at trial.
Defendant claimed he remembered the night of the shooting because a CHP officer stopped him on June 1, 2015, for driving with a suspended license and told him that he had an outstanding warrant without specifying the reason for the warrant. Byrd similarly claimed that he recalled the night of the shooting because everyone got together to talk about the situation the same evening a police officer had pulled defendant over and told him that other officers wanted to talk to him about a murder. However, Brown claimed he first spoke about the night of the shooting when a lawyer met with him and the others from the shop around May 31, 2016.
3. Prosecution's Rebuttal Case
The prosecution asked Shepard to identify her phone number and her mother's phone number. They handed Shepard a printout of the cell phone download and asked her if she had called defendant on May 5, 2015, because her car had broken down. Shepard claimed that she did not remember calling defendant but that she may have called him for help fixing her car. She could not recall if a woman had ever answered defendant's phone, and had never known a woman named Angie Stone or "Big Ang."
4. Further Defense Case
Defendant retook the stand and repeated that he was confused when police asked him about a phone because he had more than one phone and thought the police knew as much. At some point, he had put the phone police found at the shooting in a drawer until he gave it to Stone.
5. Jury Verdict and Sentence
On August 4, 2016, a jury convicted defendant of first degree murder and found true the firearm enhancement. On March 3, 2017, the trial court sentenced defendant to a term of 50 years to life, comprised of a term of 25 years to life for the first degree murder conviction (§ 187, subd. (a)) and an additional 25 years to life for the then-mandatory firearm enhancement (§ 12022.53, subd. (d)).
DISCUSSION
Defendant claims the trial court violated section 1138 by refusing to provide a video to the jury "solely because, as a technical matter, the parties had failed to formally move the video footage into evidence." Defendant alternatively contends his counsel was ineffective for failing to object to the court's response that the video, marked as exhibit 33, had not been admitted into evidence. We reject both arguments.
1. Additional Facts
Exhibit 33 contains six clips from Officer Espinoza's body camera showing portions of defendant's arrest; three of the six clips were shown to the jury, two by the prosecution and one by the defense. The prosecution played the first and part of the second clip to show Officer Espinoza's interactions with defendant and that defendant had a cell phone. The first clip played showed the police outside an auto body shop trying to contact someone inside. In the second clip, defendant and his cell phone are visible as Officer Espinoza informs him that he is being detained.
The defense played a third clip to impeach Officer Espinoza's testimony on direct examination that defendant had admitted to owning the RV. In that clip, Officer Espinoza asks whether defendant has the key to the RV. An officer tells defendant that the RV is unlocked. Defendant replies that the officers should leave the RV unlocked, that he is waiting for his sister who has the keys, and that it is not okay for the officers to enter the RV to get his things. Defendant asks to be taken downtown. An officer informs defendant that the RV will be towed. Defendant then asks what he is being arrested for and requests to go downtown, so the officers can talk to him. The officer continues to insist that he cannot leave the RV unsecured. Defendant responds to not "worry about a thing" and insists that they take him downtown.
Exhibit 33 was not admitted when it was played for the jury. Instead, the court discussed the admission of exhibit 33 during a break in the prosecution's rebuttal case. The court informed the parties that it was not admitting exhibit 33 "because it contains more than what was shown to the jury. If that's edited down to exactly what was shown to the jury, then we can revisit that." The parties did not object, and the record contains no evidence that either party provided the court with an edited exhibit 33.
Because the admission of evidence was frequently contentious, the court gave jurors the following instruction during the trial: "We have all these exhibits that were marked. We have a whole bunch of photos in this photo book. At some point, the attorneys are going to request that certain of those exhibits be received into evidence, that's a different thing than [being] marked for identification with a number or a letter. If they request it, I rule on that. Some things get admitted into evidence, some things don't, depending on, among other things, what their purpose was in having it marked in the first place. [¶] . . . Anything that is actually received into evidence you will have to examine. . . . Anything that's not received into evidence you don't get."
On the second day of deliberations, the jury sent a note asking, "Is the [body camera] video included in our evidence?" The court proposed the following written response: "[T]he CD containing the [body camera] video you were shown was not admitted into evidence. You may consider as evidence what you watched in court, but you will not have it to review during your deliberations." Neither party objected to the proposed response. The court gave that response to the jury.
2. Analysis of Penal Code Section 1138 Violation
Defendant contends the court's response violated section 1138 because it should have provided exhibit 33 after the jury asked whether it had been admitted. The Attorney General counters that the issue has been forfeited. As discussed below, we agree that the issue has been forfeited and that, in any event, defendant was not prejudiced by the court's alleged section 1138 violation.
a. Governing Legal Principles
Penal Code section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." Because section 1138's primary purpose is to provide the jury with the evidence it needs for its deliberations, a violation of section 1138 can result in the reversal of a conviction only if prejudice is shown. (People v. Frye (1998) 18 Cal.4th 894, 1007, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
"When a trial court decides to respond to a jury's note, counsel's silence waives any objection under section 1138. [Citation.] 'The failure of defendant's counsel to object or move for a mistrial upon the court frankly informing him of the court's action might also be construed to be a tacit approval. Approval of the court's action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.' " (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
b. Forfeiture
We agree that defendant forfeited his objection when the court informed counsel of its proposed response to the jury, and neither party objected. (People v. Roldan, supra, 35 Cal.4th at p. 729.)
We further note that the jury only asked whether exhibit 33 was admitted, not whether it could review exhibit 33. It is speculation to assume the jury intended to re-watch exhibit 33.
Defendant asserts that he was not required to object to preserve his section 1138 claim. He relies on three inapposite cases holding that, under some circumstances, counsel is not required to object to a section 1138 violation to preserve the issue on appeal: People v. Butler (1975) 47 Cal.App.3d 273, People v. Litteral (1978) 79 Cal.App.3d 790, and People v. Knighten (1980) 105 Cal.App.3d 128.
Butler and Litteral are inapplicable because both concerned a jury request for testimony readback, not an unadmitted exhibit. (People v. Butler, supra, 47 Cal.App.3d at pp. 283-284; People v. Litteral, supra, 79 Cal.App.3d at p. 795.) Specifically, Butler held that it was reversible error for the trial court to decline to provide a jury with requested readback of testimony even if the defense attorney agreed with the court's decision to not provide it. (People v. Butler, supra, at pp. 283-284.) Expanding upon Butler, Litteral similarly concluded that it was reversible error for a trial court to inform the jury that it would not receive readback because the court reporter was sick. (People v. Litteral, supra, at pp. 793-795.) Instead, Litteral instructs trial courts to advise the jury to keep deliberating until it can provide the requested testimony. (Id. at p. 795.) But neither Butler nor Litteral created a rule requiring the court to provide an unadmitted exhibit to a jury upon request.
Knighten is similarly unhelpful to defendant. Knighten held that a defendant had not waived his section 1138 claim when a judge, without consulting the parties, "enter[ed] the jury room, during deliberation, ostensibly to clarify a request from the jury for rereading of certain testimony." (People v. Knighten, supra, 105 Cal.App.3d at p. 132.) Knighten explained that the judge's actions violated section 1138 by depriving Knighten and his counsel of the ability "to participate in decisions as to what testimony is to be reread to the jury." (Ibid.) In contrast to the judge's unilateral actions in Knighten, the court in this case gave the parties an opportunity to object to its proposed response before answering the jury's question. (Ibid.) Knighten fails to support defendant's argument that he did not forfeit his claim because defendant had declined the chance to object to the court's response.
c. Prejudice
Even assuming the trial court erred by not providing exhibit 33 to the jury, defendant's claim still fails because that failure did not prejudice him. We will apply the standard of review for constitutional error to analyze whether the failure to provide the jury with exhibit 33 was harmless beyond a reasonable doubt. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 635-636 [finding § 1138 error harmless under both Watson and Chapman standards].) (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 23-24.)
Defendant's claim that the failure to admit exhibit 33 prejudiced him overstates the importance of exhibit 33, which at best impeached Officer Espinoza's testimony that defendant admitted owning the RV. As we have noted, other evidence confirmed that defendant had dominion and control over the RV. For example, defendant's identification card, wallet, and four personal documents were found inside the RV. As exhibit 33 merely negated ownership and not dominion and control, the trial court's failure to admit it was not prejudicial because access, not ownership, was the real issue.
Defense counsel also adequately argued the importance of exhibit 33 during closing. He first noted that the exhibit 33 footage confirmed that defendant had never claimed that he owned the RV. Later on, he claimed the prosecution needed Officer Espinoza's testimony to connect defendant to the RV because they had not adequately investigated who in fact owned the RV. But again, other evidence confirmed that defendant had access to the RV.
In sum, we conclude defendant forfeited his objection to the court's response to the jury and that, in any event, he was not prejudiced.
3. Ineffective Assistance of Counsel Based on Failure to Object
Defendant alternatively contends that his counsel was ineffective for failing to object. We disagree.
"It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court." (People v. Mendoza (2000) 78 Cal.App.4th 918, 924.) Moreover, tactical decisions by counsel are usually not reversible because a "counsel's [tactical] decisions during trial cannot be second-guessed by the hindsight of a reviewing court." (People v. Saldana (1984) 157 Cal.App.3d 443, 462.)
Here, defense counsel arguably made a tactical decision not to object to the court's response as the court would likely have overruled it based on defense counsel's failure to move exhibit 33 into evidence. Had counsel concluded the evidence was important to defendant's case, counsel would have moved to enter exhibit 33 into evidence, so the jury could review it.
Defense counsel also likely made a tactical decision not to admit exhibit 33 because it contained statements by defendant that were at odds with his testimony. Specifically, on exhibit 33, defendant claimed his sister had the keys to the RV. But at trial, defendant testified that Jo-Jo owned the RV and never mentioned his sister in connection with the RV. We therefore conclude that defense counsel did not provide defendant with ineffective assistance of counsel by failing to either object to the court's response to the jury's question or move to admit exhibit 33. B. Motion for New Trial
Defendant contends the court improperly refused to consider newly discovered evidence in support of his motion for a new trial. This court reviews " 'a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127, quoting People v. Navarette (2003) 30 Cal.4th 458, 526.) We conclude the trial court reviewed the new evidence and did not abuse its discretion.
1. Additional Facts
Defendant's argument on appeal relies primarily on evidence from a declaration by defense investigator Francie Koehler, which was submitted to the court the day it heard argument on the motion for a new trial. In that declaration, Koehler explained that she obtained records for the number associated with cell phone found at the scene of the shooting from a proprietary information provider. Those records showed that "Angie Stonewall" was one of four past or current "subscribers" to that phone number, along with defendant and two others. Koehler attached this report to her declaration without explaining the significance of certain details in the report or how the report showed that defendant would likely have obtained a different result at trial.
For example, the report contains a percentage score next to each person associated with the phone. Defendant's score for the phone number is "12%" and is followed by a notation reading "likely historical." Stonewall's score is "1%" and is also followed by the "likely historical" notation. Koehler's declaration does not explain what these percentages or comments mean.
In addition, defense counsel's motion stated that "[m]ore than one source informed Francie [Koehler] and myself that at the time of the shooting in this case 'Angie' and the alibi witness Baptiste were 'seeing each other' and regularly spoke on the phone. As of this writing, Baptiste has fled the area and cannot be located by either my investigator [or] the defendant's family." Koehler's declaration confirmed that other than one post-trial conversation with Baptiste, she had been subsequently unable to locate him again despite numerous attempts. Although the motion stated that "Angie" and Baptiste were in a relationship, Koehler's declaration did not.
At the hearing on the motion for new trial, defense counsel asked the court to consider the newly discovered evidence in Koehler's declaration. The court responded that it did not think it was fair to spring the new evidence on the prosecutor on the morning of the hearing. Defense counsel again asked the court to consider the declaration. The court denied the motion, explaining that it had "reviewed and re-reviewed the declaration by Ms. Koehler."
2. Governing Legal Principles
"A defendant may seek a new trial '[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. . . .' (Pen. Code, § 1181, subd. 8.) 'The standard of review of an order denying a motion for a new trial based on newly discovered evidence was established by this court in 1887: "To entitle a party to a new trial on the ground of newly discovered evidence, it must appear,—'1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.' . . . [¶] 'Applications on this ground are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion. . . .' " [Citations.]' ' "[I]n determining whether there has been a proper exercise of discretion on such [a] motion, each case must be judged from its own factual background." ' " (People v. Cua (2011) 191 Cal.App.4th 582, 608 (Cua).)
3. Analysis
Defendant first contends that the court failed to consider the new evidence when ruling on his new trial motion. We reject this argument because the court said it had reviewed the declaration when it denied the motion. We must therefore determine whether the trial court abused its discretion when it denied defendant's motion for a new trial. We conclude it did not because the new evidence did not render a different result on retrial probable and the evidence could have been discovered with reasonable diligence before trial. (Cua, supra, 191 Cal.App.4th at p. 608.)
Turning first to Koehler's declaration and the attached phone report, this new evidence fails the third prong's requirement that the new evidence would likely have changed the trial's result. Here, the record connects an "Angie Stonewall," not "Angie Stone," with the phone at some unknown point in the past for an unknown time period. (Cua, supra, 191 Cal.App.4th at p. 608.) A historical connection to the phone without any temporal indication would not have led the jury to acquit defendant because a mere past association with the phone fails to account for other evidence about the phone, such as defendant's contradictory statements about when he lost it and Shepard's testimony that she could not specifically recall a woman ever answering defendant's phone. Koehler's declaration also fails to meet the fourth prong because these records are historical and likely could have been obtained before trial. (Ibid.) The court thus acted well within its discretion when it denied defendant's motion for a new trial based on Koehler's declaration.
We turn next to the "new evidence" that someone told the defense team that Baptiste was in a relationship with Stone, which was mentioned in defendant's reply to the prosecutor's opposition. This assertion is inadmissible hearsay. (Evid. Code § 1200.) But even assuming defense counsel had provided a declaration from a witness who could so testify at trial, that testimony would still not have changed the result of the trial because it does not account for other evidence connecting defendant to the shooting, including Munn's and Clark's identifications of defendant in the photographic lineup. Moreover, it is unclear why defense counsel could not have, with reasonable diligence, discovered this evidence before trial.
Accordingly, we conclude the trial court considered the new evidence and did not abuse its discretion in denying defendant's motion for a new trial. C. Motion for New Counsel
Defendant asserts the trial court violated his Sixth Amendment right to counsel by failing to rule on his motion to discharge retained counsel. We agree.
1. Additional Facts
The court initially appointed a public defender to represent defendant. However, after his preliminary hearing, defendant retained William DuBois as his counsel, and the court subsequently relieved the public defender.
On November 26, 2016, nearly three months after the jury's verdict, defendant filed a motion requesting new counsel because he alleged that his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments had been violated. Attached to his motion, defendant submitted a "check the box" declaration alleging that his counsel had failed to confer with him to prepare a defense, had not performed the investigation necessary to prepare a defense, and had failed to file critical motions, along with other equally vague claims.
Even though a Marsden motion is not appropriate when counsel is retained, such a motion may be sufficient to implicate a defendant's right to discharge counsel provided that the motion clearly indicates the defendant is requesting new counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 158 [trial court has a duty to conduct a Marsden hearing when a defendant, directly or by implication, asserts that his counsel's performance has been so deficient as to deny him effective assistance of counsel].)
The court never set a hearing to address defendant's motion to discharge his retained counsel. Instead, three months later, defendant brought his motion to the court's attention at the hearing on the motion for a new trial that his counsel filed two months after defendant had filed his motion to discharge counsel. Specifically, he said, "I know my rights have been violated in this court. I mentioned before about the coercion of witness by this officer and about my $176,000 that was taken from me, and I've asked, and I've asked and I've asked and I get no question [sic]. [¶] . . . [¶] I would like my $176,000 back so I could proceed with another counsel. May I please have my money back?"
The court responded that it had no answer regarding the money but "the purpose here is to address the subject of sentencing, not complain about the trial or what happened before the trial." The court then asked defense counsel about the money that defendant had mentioned, and defense counsel responded that defendant was talking about money that he had allegedly kept in his mobile home. Defendant retorted that he did not own a mobile home.
After this exchange, the court sentenced defendant without addressing his motion to discharge counsel.
2. Governing Legal Principles
"Few restrictions apply when a defendant wants to discharge his or her retained counsel. The right to retained counsel of choice is generally 'guaranteed under the Sixth Amendment to the federal Constitution. [Citations.] In California, this right "reflects not only a defendant's choice of a particular attorney, but also his [or her] decision to discharge an attorney whom he [or she] hired but no longer wishes to retain." ' [Citations.] A defendant is entitled to discharge retained counsel 'with or without cause' because '[t]he right to discharge retained counsel is based on " 'necessity in view of both of the delicate and confidential nature of the relation between [attorney and client], and of the evil engendered by friction or distrust.' " ' " (People v. Lopez (2018) 22 Cal.App.5th 40, 46 (Lopez).) Motions to discharge counsel may be made before or after trial because "[t]here is just as much 'evil engendered by friction or distrust between an indigent criminal defendant and his attorney' [citation] to be guarded against after trial as before." (People v. Munoz (2006) 138 Cal.App.4th 860, 868, citing People v. Ortiz (1990) 51 Cal.3d 975, 984.)
But " '[t]he right to discharge a retained attorney is . . . not absolute.' [Citation.] A trial court may deny a request to discharge retained counsel 'if discharge will result in "significant prejudice" to the defendant [citation], or if it is not timely, i.e., if it will result in "disruption of the orderly processes of justice." ' (People v. Ortiz, supra, 51 Cal.3d at p. 983.) As Ortiz explained, 'the "fair opportunity" to secure counsel of choice provided by the Sixth Amendment "is necessarily [limited by] the countervailing state interest against which [this] right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of 'assembling the witnesses, lawyers, and jurors at the same place at the same time.' " ' " (Lopez, supra, 22 Cal.App.5th at p. 47, citing People v. Ortiz, supra, at pp. 983-984.)
3. Analysis
Defendant asserts that the trial court erroneously "did not hold a hearing to exercise its discretion and . . . made no findings at all about the timeliness of, or prejudice caused by, the request." We agree with defendant that the trial court should have held a hearing to determine whether defendant could discharge his retained counsel and proceed with new counsel. (Lopez, supra, 22 Cal.App.5th at p. 47.)
Conceding "that, optimally, the trial court could have made further inquiry of [defendant] regarding the desire to replace his trial counsel," the Attorney General insists that defendant has forfeited his motion because defense counsel continued to represent defendant after he filed his motion to discharge counsel. We disagree.
Courts typically conclude that a defendant has not abandoned a motion for new appointed counsel under People v. Marsden (1970) 2 Cal.3d 118, if the defendant brings the motion to the court's attention at the next hearing. (People v. Armijo (2017) 10 Cal.App.5th 1171, 1182 [rejecting abandonment argument because defendant never withdrew motion and never had the opportunity to explain his Marsden request]; cf. People v. Jones (2012) 210 Cal.App.4th 355, 362 [finding forfeiture where defendant failed to remind court of pending Marsden motion].) Marsden motions implicate the same constitutional rights as motions to discharge counsel. (Lopez, supra, 22 Cal.App.5th at pp. 46-47 [discussing the Sixth Amendment and that discharging retained counsel need not meet the Marsden standard].) Here, defendant raised the issue before the court as soon as the court gave him an opportunity to speak. We have found no case law requiring us to more readily find that defendant forfeited his motion to discharge retained counsel than a Marsden motion to discharge appointed counsel. As such, we reject the Attorney General's argument that defendant forfeited his motion to discharge his counsel.
We must therefore decide the remedy to which defendant is entitled. Defendant argues that his motion to discharge his attorney should have been granted, and requests that we order the trial court to appoint new counsel for purposes of a new trial motion and resentencing. However, we have no record before us that would allow us to determine whether granting defendant's motion to discharge retained counsel would have prejudiced defendant or resulted in the disruption of the orderly processes of justice. (Lopez, supra, Cal.App.5th at p. 47.) The failure to hold a hearing must be remedied at the trial court level, as it is inappropriate for an appellate court to speculate about what the trial court would have done based on a silent record. (People v. Winbush (1988) 205 Cal.App.3d 987, 991 [holding that the remedy for a failure to hold a Marsden hearing is a remand to the trial court to develop sufficient record].) Accordingly, we remand for the trial court to consider whether to grant defendant's motion to discharge counsel. D. Discretion to Impose Firearm Enhancement Under Penal Code Section 12022 .53 , Subdivision (h)
After trial and sentencing in this case, Senate Bill No. 620 amended section 12022.53, subdivision (h), to allow a trial court the discretion to "strike or dismiss" a firearm enhancement in sentencing. Prior to that, imposition of the enhancement had been mandatory. Because the bill did not become effective until January 1, 2018, the trial court did not have the discretion to strike the firearm enhancement at the time of defendant's sentencing. The amendment applies retroactively to this case because defendant's judgment was not final when the bill took effect. (People v. Chavez (2018) 22 Cal.App.5th 663, 712.)
"[U]nless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement," we must remand to give the trial court the discretion to strike the enhancement if it so chooses. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) There, the Attorney General concedes that nothing in the record indicates that the court "would not in any event have stricken a firearm enhancement." (Ibid.) It is thus appropriate to remand the case to allow the court to consider striking the enhancement. We express no opinion as to how the court should exercise its discretion.
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded with the following directions: The court shall hold a hearing on defendant's motion to discharge retained counsel. If the court finds that defendant has met the threshold to discharge his retained counsel, the court shall appoint new counsel or permit newly retained counsel to represent defendant and shall entertain any post-trial motions counsel may make. If newly appointed or retained counsel makes no motions, any such motions are denied, or if defendant's motion to discharge counsel is denied, the court shall then determine whether, under section 12022.53, subdivision (h), to strike the enhancement imposed and, if the trial court decides to do so, to resentence defendant accordingly. In all other respects, the judgment is affirmed.
BROWN, J. WE CONCUR: POLLAK, P. J.
STREETER, J.