People v. Madrigal CA2/6 ( 2015 )

Filed 10/8/15 P. v. Madrigal CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B254702
(Super. Ct. No. 2013023115)
Plaintiff and Respondent, (Ventura County)
v.
ANTONIO MADRIGAL,
Defendant and Appellant.
Antonio Madrigal appeals from the judgment following his conviction by
jury of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)1
(count1)); assault by force likely to produce great bodily harm (§ 245, subd. (a)(4) (count
2)); and conspiracy to commit assault by force likely to produce great bodily harm
(§ 182, subd. (a)(1) (count 3)). The jury also found two criminal street gang allegations
were true. (§ 186.22, subd. (b)(1).) In a bifurcated proceeding, appellant admitted that
he had five prior strike convictions (§ 667, subds. (d)(1) & (e)(1)); a prior serious felony
conviction (§ 667, subd. (a)(1)); and served two prior prison terms (§ 667.5, subd. (b)).
The trial court sentenced him to prison for 25 years to life plus 10 years. Appellant
contends that (1) there is not sufficient evidence to support his convictions; (2) the court
1
All statutory references are to the Penal Code unless otherwise stated.
abused its discretion by allowing a gang expert to discuss hearsay reports of appellant's
prior in-custody conduct; (3) the court violated his Sixth Amendment right to confront
witnesses by allowing a gang expert to discuss testimonial hearsay evidence underlying
his opinion (Crawford v. Washington (2004) 541 U.S. 36, 59)2; and (4) the court abused
its discretion by failing to grant his counsel additional time to investigate and present a
new trial motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. July 23, 2013 Assault and Related Crimes3
The Ventura County Hall of Justice has a holding facility for inmates with
court appearances. Large cells house groups of inmates and small cells called "Condos,"
hold inmates who must be segregated from others. Condo C of the facility faces Cell 13,
on the opposite side of a central corridor, which provides access to the cells and condos.
The occupants of Cell 13 and Condo C can see each other.
On July 23, 2013, Ventura County Sheriff's Deputy Hernandez placed
appellant in Condo C, alone.4 Cell 13 held about 30 inmates, including Ronald
Amesquita, a member of the Southside Chiques gang, and Colonia Chiques members
Alexis Sandoval and Frederico Zapien. Appellant belongs to the Colonia Chiques, also.
Immediately after appellant was placed in Condo C, another inmate,
Ernesto Duran, walked by Condo C and entered Cell 13. Duran sat on a bench along the
2
Appellant recognizes that that existing law does not support his Confrontation
Clause claim. (People v. Gardeley (1996) 14 Cal. 4th 605, 619.) He raises the claim
because the California Supreme Court is now considering whether a defendant's Sixth
Amendment right to confrontation is violated by a gang expert's reliance on testimonial
hearsay. (See People v. Sanchez (2014) 223 Cal. App. 4th 1, review granted May 14,
2014, S216681; see also People v. Archuleta (2014) 225 Cal. App. 4th 527, review granted
June 11, 2014, S218640 [briefing deferred pending consideration and disposition of
Sanchez.)
3
Unless otherwise indicated, the events described herein occurred in 2013.
4
The officers referenced herein are members of the Ventura County Sheriff's
Department.
2
wall on the right side of Cell 13. Duran, a former member of Colonia Chiques, stopped
associating with them before July 23. After Duran entered Cell 13, Amesquita
approached the front of the cell, facing appellant's cell. He looked back, toward a bench
where Duran sat, before he looked toward appellant's cell, and used hand gestures which
spelled "Okay," and "Wait."5
Amesquita walked away from the front of the cell, to a bench in the middle
section of Cell 13, across from Duran, and kept looking toward appellant's cell.
Amesquita spoke to Duran and gestured toward appellant's cell. Duran stood, shook
Amesquita's hand, walked to the front of the cell, and looked toward appellant's cell.
Duran nodded, as if he were acknowledging someone, pointed at himself and returned to
his seat. Amesquita remained seated and continued gesturing toward appellant's cell as if
they were conversing. Amesquita also looked toward Duran, before looking toward
appellant's cell and pointing at Duran. Amesquita signed "That vato on," and
subsequently signed "That foo that tat," which means something like that fool with
tattoos. Duran had extensive visible tattoos on his arms.
Amesquita moved to the left side of the cell where Zapien and Sandoval
sat. Zapien and Sandoval then approached the front of their cell and looked at appellant's
cell. Sandoval signed, "What's up? Zapien and Sandoval both turned, looked toward
Duran, then looked back toward appellant's cell. Duran fidgeted and moved a paper that
he held in his hand. Sandoval looked toward Amesquita. Amesquita joined him, looked
at appellant's cell, and turned as if he were whispering in Sandoval's ear. Sandoval and
Amesquita both faced appellant's cell. While pointing toward Duran, Amesquita signed,
"The fool that tat up?"
Amesquita, Sandoval and Zapien simultaneously walked toward Duran.
Zapien stood to the left of Duran, Sandoval stood in front of him; and Amesquita stood to
5
Filiberto Cardenas, a former long-term Colonia Chiques member, testified that he
served as a Sureno (foot soldier) for the Mexican Mafia while he was incarcerated.
During trial, Cardenas translated the hand signs of inmates depicted in the July 23 video
surveillance tape of Cell 13.
3
Duran's right. Sandoval lunged at Duran. Amesquita and Zapien quickly joined in the
assault. While punching Duran, they moved the fight to the right rear corner of the cell.
Other inmates joined in the attack, including Alex Garcia, Juan Ledezma and Antonio
Chavez. Garcia looked at appellant's cell before he started punching Duran. The fight
ended when deputies entered Cell 13.
Erik Raya testified that he was incarcerated in Cell 13 on July 23, and
witnessed the fight there. Before the fight began, Raya saw Amesquita, Zapien, and
Sandoval, in Cell 13, communicating with appellant, in Condo 13. All four men were
using sign language.
On July 23, sometime after the fight ended, Deputy Gary Morales heard a
heated discussion between appellant and Duran. Appellant told Duran, "You're good
now. You're okay." Morales opined that appellant was saying that the assault had
resolved any preexisting problem between him and Duran. Duran refused to testify at
trial.
B. Gang Evidence
1. Colonia Chiques Gang Evidence
Detective Cody Collet testified as an expert regarding local criminal street
gangs in Ventura County. Colonia Chiques is the largest gang in Oxnard, with about
1000 members. It claims a large section of Oxnard as its territory. Its members identify
with the Dallas Cowboys and Indianapolis Colts, because of letters in the team names (C,
O and L). They often wear clothing with five-point stars and the letter C. Colonia
Chiques members display hand signs that form "C," "H," and a five-point star. The
gang's primary activities are killing, assaulting victims with deadly weapons (knives or
firearms), extortion, and witness dissuasion. Its rivals include Ventura Avenue,
Southside Chiques and the 12th Street Locos.
Collet opined that appellant was an active Colonia Chiques member on
July 23. He based his opinion on several factors: Appellant was with Colonia Chiques
members during multiple police encounters from 2000 through 2003; he acted with other
Colonia Chiques members on July 23; he wore Dallas Cowboys attire; and flashed
4
Colonia Chiques gang hand signs. He had several tattoos associated with Colonia
Chiques, and acquired them on a continuing basis. Collet also opined that on July 23,
Zapien and Sandoval were active members of Colonia Chiques, unlike Duran who
formerly associated with Colonia Chiques but was no longer active. Collet opined that
Amesquita belonged to the Southside Chiques.
2. Mexican Mafia and Surenos Evidence
Deputy Jonathan James testified as an expert on the Mexican Mafia and the
Surenos. The Mexican Mafia is a large criminal gang with members in state and federal
penal institutions in California. Its members use fear, intimidation and violence to
control Southern California Hispanic gang members in penal facilities, and on the streets.
Its rival, Nuestra Familia, exerts similar control of Northern California Hispanic gang
members.
The Mexican Mafia is a multi-level criminal organization. The top tier
includes approximately 200-250 documented Mexican Mafia members, known as
"Brothers" or "Carnals." The Mexican Mafia recruits second tier foot soldiers called
"Surenos," who accept its ideology and "proactively" commit crimes on its behalf. James
testified that the third tier consists of gang members called "Southsiders," who also
accept Mexican Mafia ideology. Southsiders provide "reactive" support, and would join
an ongoing prison riot, rather than initiate a riot. An incarcerated gang member is
automatically a Southsider if he belongs to a neighborhood gang such as Colonia
Chiques, which pays homage to the Mexican Mafia. Inmates with no gang affiliation are
"residents."
Members of rival neighborhood gangs cease their rivalries while
incarcerated, provided their respective neighborhood gangs accept Mexican Mafia
ideology. Thus, a Surenos leader has authority over Surenos who belong to gangs which
rival his neighborhood gang. A Sureno can be "checked" (disciplined) for
noncompliance with the leader's orders.
Filiberto Cardenas, a former long-term Colonia Chiques member, testified
that he served as a Sureno while he was incarcerated. He testified that Surenos use sign
5
language (hand gestures) to prevent prison authorities from hearing and understanding
their communications. Cardenas learned Surenos signing in 1997. He and appellant used
Surenos signs to communicate with each other, most recently in October or November
2012.
The Mexican Mafia has a strict code of conduct. Among other things, the
code prohibits associating with Black inmates; engaging in homosexual acts and/or
sharing a cell with homosexual inmates; and talking with law enforcement. Organization
members or residents who talk to law enforcement are viewed as "rats" or "snitches" who
are subject to retaliation. The code compels Surenos to establish an area of control in jail
or prison and attack inmates charged with sexual offenses.
The Mexican Mafia uses Aztec and Mayan symbols, such as the Aztec
eagle and a "Kanpol," the Mayan symbol for number 13, which is significant because M
is the 13th letter of the alphabet. A gang member must earn the right to have a Mexican
Mafia tattoo, often by committing crimes.
James testified about predicate offenses committed by Surenos. In
November 2012, two Ventura County Jail Sureno inmates committed assaults by means
likely to produce great bodily injury. In February 2012, a Sureno in the California Youth
Authority said, "This is for trece" (the Mexican Mafia) as he assaulted a correctional
officer. James also testified that in July 2003, Sureno member Kevin McCarthy
committed attempted manslaughter while trying to extort money for the Mexican Mafia,
when he was not in custody.
James opined that appellant was an active Sureno. He cited several factors
supporting his opinion, including appellant's ongoing association with Sureno and
Mexican Mafia members. James testified that in May 2001, appellant was stopped with
Anthony Villa, a high-ranking Sureno who belonged to Colonia Chiques, and was a
Mexican Mafia Associate with extensive Mexican Mafia tattoos. Appellant also had
multiple Mexican Mafia and Surenos tattoos. In October 2012, he had an Aztec eagle
warrior tattoo, which reflected his status as a "good leader" in custody. In November
2012, he had a new Kanpol (Mayan 13) tattoo on his left arm. By July 2013, he had
6
another, newer "Mayan 13" tattoo. His continuing acquisition of new Sureno-related
tattoos was significant because it showed his ongoing commitment to the Surenos and the
Mexican Mafia.
James testified that he considered other factors as indicia of appellant's
Sureno status. He cited a September 2007 statement appellant made to an officer when
asked about his gang affiliation. Appellant answered, "Surenos, of course." Making a
false claim of Sureno affiliation would subject an inmate to serious retaliation. James
also cited several incidents that occurred while appellant was in custody: In March 2005,
appellant admitted that he attacked another inmate (John Steir) who was charged with a
sex crime. In July 2006, appellant suggested that a homosexual inmate (Gulshan Ahuja)
request a transfer to a different section (away from appellant). In July 2005, appellant
struck an inmate (Eric Eaton) who said something that appellant may have perceived as
disrespectful. In August 2005, appellant assaulted an inmate (Michael Kinkaid) to a fight
after Kincaid asked why appellant forbade another inmate from loaning something to
Kincaid. In December 2006, appellant helped instigate a riot between Hispanic inmates
from southern and northern California. James testified that appellant's in-custody
conduct was typical of an influential "tank boss" who runs a section of a jail or prison and
claims to be a high-ranking Sureno.
James further testified that appellant's participation in the July 23 incident
showed his Surenos leadership role. James opined that Zapien, Amesquita, Sandoval,
Ledezma, Garcia and Chavez were active Surenos members. The incident involved
members of rival street gangs who supported each other in assaulting Duran. Before the
assault, someone accused Duran of snitching. Duran in effect denied the accusation by
saying, "I have my state paperwork." James testified that appellant's post-incident
statement to Duran, "You're good now, you're okay," showed that appellant considered
the assault to be sufficient punishment for snitching. James opined that only a high level
Sureno could make such a statement and the combined circumstances indicated appellant
was a Surenos leader.
7
DISCUSSION
Substantial Evidence
Appellant contends there is not sufficient evidence to support his
convictions. We disagree.
In reviewing the sufficiency of evidence to support a conviction, we
examine the entire record and draw all reasonable inferences therefrom in favor of the
judgment to determine whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Streeter (2012) 54 Cal. 4th 205, 241.) Our review is the same in a prosecution
primarily resting upon circumstantial evidence. (People v. Watkins (2012) 55 Cal. 4th
999, 1020.) We do not reweigh the evidence or reassess the credibility of witnesses.
(People v. Albillar (2010) 51 Cal. 4th 47, 60.) We accept the logical inferences that the
jury might have drawn from the evidence although we would have concluded otherwise.
(Streeter, supra, at p. 241.) "If the circumstances reasonably justify the trier of fact's
findings, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding. [Citation.]" (Albillar,
supra, at p. 60.)
"'Conspiracy requires two or more persons agreeing to commit a crime,
along with the commission of an overt act, by at least one of these parties, in furtherance
of the conspiracy.' [Citation.]" (People v. Homick (2012) 55 Cal. 4th 816, 870.)
Conspiracy requires the intent to agree, and the intent to commit the underlying
substantive crime. An agreement among alleged conspirators is often established by
circumstantial evidence. Thus, the existence of a conspiracy may be inferred from the
conduct, relationship, interests, and activities of the alleged conspirators before and
during the alleged conspiracy. Common gang membership may be part of the
circumstantial evidence that supports the inference that perpetrators acted as conspirators.
(People v. Superior Court (Quinteros) (1993) 13 Cal. App. 4th 12, 20.)
Aiding and abetting liability requires that the defendant act with knowledge
of the unlawful purpose of the perpetrator and with the intent or purpose of committing or
8
encouraging or facilitating the commission of the crime, and that by act or advice he
aided promoted, encouraged, or instigated the commission of the crime. (See People v.
Campbell (1994) 25 Cal. App. 4th 402, 409.) Other factors include the defendant's
companionship or relationship with the perpetrator and his conduct before and after the
offense. (Ibid.)
In challenging the sufficiency of the evidence, appellant contends there is
"no substantial evidence that [he] was a member of the conspiracy or that he aided and
abetted the assault." More specifically, he claims that the only evidence of his status as a
"high-ranking, shot-calling Sureno" was "bare speculation by Deputy James that
appellant was a tank boss, the influential Sureno who could order other Surenos or
Southsiders to attack another inmate." The record belies his claim.
Substantial evidence supports appellant's convictions, independent of
James' opinion that appellant is a Surenos leader. The prosecution presented photographs
of appellant's tattoos depicting Mayan and Aztec symbols, as well as James' expert
testimony that Surenos wear such tattoos. Cardenas, who was a Sureno for many years,
testified that appellant was a Sureno. He further testified that he and appellant used
Surenos signs to communicate as recently as November or December 2012. The conduct
of appellant, Amesquita, Zapien and Sandoval provides additional strong circumstantial
evidence from which the jury could infer that appellant instigated and encouraged the
assault upon Duran. Raya testified that just before the July 23 fight, Amesquita,
Sandoval, and Zapien were communicating with appellant and all four men were using
hand signs. The surveillance video depicts Amesquita and Sandoval using Surenos signs
as they faced appellant's cell. Amesquita and Sandoval pointed toward the bench where
Duran sat while Amesquito used signs to ask if appellant meant that guy with the tattoos.
Duran had extensive visible tattoos. Amesquita spoke with Duran immediately before
Duran stood, walked to a position facing appellant's cell, gestured toward himself, and
returned to his seat on the bench. Zapien, Amesquita and Sandoval gathered together
briefly before they approached Duran simultaneously and attacked him. Inmate Garcia,
who joined in the attack, did so only after he stood and looked toward appellant's cell.
9
The Trial Court Did Not Abuse Its Discretion By Allowing Gang Expert
James to Discuss Hearsay Reports of Appellant's In-Custody Conduct.
Appellant contends that the trial court abused its discretion by allowing
James to discuss five reports regarding appellant's prior in-custody conduct, and thereby
violated his rights to due process and a fair trial. We disagree.
Procedural Background
Before James provided his opinion regarding appellant's status as a Sureno
leader, appellant argued that James should not be allowed to refer to six reports of
appellant's prior in-custody conduct. During the ensuing Evidence Code section 402
hearing, James testified about the following six incidents: In March 2005, appellant
assaulted an accused sex offender (John Steir). In July 2005, he slapped inmate Eric
Eaton, who made a disrespectful statement. In August 2005, appellant assaulted inmate
Michael Kinkaid, after Kinkaid questioned appellant's forbidding a third inmate from
loaning something to Kinkaid. In July 2006, appellant told Gulshan Ahuja, a homosexual
inmate, to request a move from the section in which appellant was housed. In December
2006, appellant took part in a prison riot between southern and northern California
Hispanic inmates. In December 2007, appellant used sign language directing one inmate
(Perrin) to attack another inmate (Watts); Perrin refused and reported appellant. A fourth
inmate (Lehra) offered to attack Perrin for failing to follow appellant's orders.
Appellant argued that the reports of his in-custody conduct were based on
unreliable hearsay, which was inadmissible under Evidence Code section 352 because its
prejudicial impact outweighed its probative value. The trial court excluded the report of
the December 2007 incident because its similarity to the instant case posed a danger the
jury might misuse that evidence. The court ruled that James could discuss the other five
incidents as bases of his opinion, and indicated it would give cautionary instructions to
the jury about the limited use of hearsay evidence. Before James testified about the five
in-custody incidents, the court instructed the jury the incidents were "being received not
to show you that they are true, but to show you only, if they do, what it is that this
witness relied on in forming his opinions." The court gave them such an instruction at
10
four separate times during the presentation of gang expert testimony.
We apply "the abuse of discretion standard of review to any ruling by a trial
court on the admissibility of evidence, including one that turns on the hearsay nature of
the evidence in question." (People v. Waidla (2000) 22 Cal. 4th 690, 725.) "'[A] trial
court's ruling will not be disturbed, and reversal of the judgment is not required, unless
the trial court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v.
Hovarter (2008) 44 Cal. 4th 983, 1004.) The proper application of the rules of evidence
does not violate the federal Constitution. (People v. Cunningham (2001) 25 Cal. 4th 926,
998; see, e.g., Dowling v. United States (1990) 493 U.S. 342.)
The trial court did not abuse its discretion in allowing James to discuss
appellant's prior in-custody incidents during his testimony. The in-custody incidents
were admitted for a limited purpose–to show jurors the basis for the James' opinion and
not to show that the incidents were true. The court took care to instruct the jury of their
limited purpose, and did so frequently. We have considered appellant's related claim that
evidence of the incidents was unduly prejudicial propensity evidence. The court,
however, instructed the jury with CALCRIM No. 1403, that it could "not conclude from
this evidence that [appellant] is a person of bad character or that he has a disposition to
commit crime." Jurors are presumed to understand and follow the court's instructions.
(People v. Homick (2012) 55 Cal. 4th 816, 867.)6 Moreover, based upon the
6
Appellant asserts that the expert testimony instruction (CALCRIM No. 332) which
directed jurors to "decide whether information on which the expert relied was true and
accurate" conflicted with the court's cautionary instructions that the reports of incidents
upon which the expert relied were not received to show jurors that they were true. Under
the circumstances of this case, we disagree. The court instructed the jury with
CALCRIM No. 332 once, before deliberations began, along with several other
instructions, including CALCRIM No. 303. CALCRIM No. 303 states: "During trial
certain evidence was admitted for a limited purpose. You may consider that evidence
only for that purpose and no other." The court instructed jurors five times during the
presentation of expert testimony that the reports or incidents the experts discussed were
not being received to show jurors that they were true, but only to show them the material
upon which the witness had relied in forming his opinion.
11
overwhelming evidence of appellant's guilt, any error in the challenged rulings was
harmless. (Chapman v. California (1967) 386 U.S 18, 24.)
Confrontation Clause Claim
Appellant contends that the trial court violated his Sixth Amendment right
to confrontation when it permitted Deputy James to discuss testimonial evidence
underlying his opinion. We disagree.
An expert witness testifying regarding criminal street gangs may base his
opinion upon conversations with gang members, information gathered by other law
enforcement officers, his own personal investigations, or other information. (People v.
Gardeley, supra, 14 Cal.4th at p. 620.) Citing Crawford v. Washington, supra, 541 U.S.
36, appellant argues that expert testimony regarding such evidence violates the
Confrontation Clause. We rejected a comparable argument in People v. Ramirez (2007)
153 Cal. App. 4th 1422, 1427. "Hearsay in support of expert opinion is simply not the sort
of testimonial hearsay the use of which [Crawford v. Washington, supra, 541 U.S. 36 and
progeny] condemn[.]" (Ibid.) James' reliance on the out-of-court interviews and
information gathered by other law enforcement officers who investigated appellant's prior
in-custody conduct did not violate his confrontation rights.
New Trial Motion
Appellant contends that the trial court abused its discretion and deprived
him of due process by failing to allow counsel additional time to investigate and present a
motion for new trial. We disagree.
The trial court may grant a continuance only upon a showing of good cause.
(§ 1050, subd. (e); People v. Hajek and Vo (2014) 58 Cal. 4th 1144, 1181.) On review,
we decide whether the trial court abused its discretion by denying the requested
continuance. (Ibid.) "Good cause" requires a showing that counsel has prepared with
due diligence. (People v. Doolin (2009) 45 Cal. 4th 390, 450.) Not every denial of a
request for more time denies due process of law, even if the party seeking the
continuance thereby fails to offer evidence. (People v. Beames (2007) 40 Cal. 4th 907,
921.)
12
The party challenging a ruling regarding a continuance request bears the
burden of establishing an abuse of discretion. (People v. Hajek and Vo, supra, 58 Cal.4th
at p. 1181.) An abuse of discretion is established only if the court's decision is arbitrary
or unreasonable. (Id. at pp. 1180-1181.)
Relevant Background
On December 6, 2013, the jury returned its verdicts convicting appellant.
The court granted a defense request to set a sentencing hearing for January 22, 2014. By
December 13, 2013, appellant had retained the office of private counsel Mark Bledstein.
On January 7, 2014, Bledstein contacted appointed trial counsel, Ken Wiksell, regarding
his substitution as appellant's counsel. Bledstein placed the matter on the January 16,
2014, calendar to request permission to substitute in as appellant's counsel.
Bledstein did not appear at the January 16 hearing. His associate, Adam
Koppekin, appeared and advised the court that Bledstein's office would not be ready for
the January 22 sentencing hearing. Koppekin requested a continuance to the "last
possible date" before the trial court's pending retirement. He could not provide an answer
when the court asked why the office had "frittered away" a month following its retention
before seeking to substitute in as counsel and obtain a continuance. The court granted
Bledstein's motion to substitute in, but denied his request for a continuance.
Bledstein appeared on the scheduled January 22 sentencing date and
submitted motions to continue the matter and strike five prior felony strike convictions
for purposes of sentencing, pursuant to People v. Superior Court (Romero) (1996) 13
Cal. 4th 497. Bledstein stated he had not yet ordered the trial transcripts from the
reporter, and estimated he would need 60 or 90 days before sentencing proceedings. The
court questioned his failure to order the transcripts earlier and stated his shortage of time
was "self-inflicted." The court indicated it had ordered the court reporter to expedite the
transcription and the transcripts could be ready by February 10. Bledstein requested a
continuance to a date in early March. The court granted a continuance of 33 additional
days, to February 24, 2014, one day before its final day on the bench.
13
On February 20, 2014, Bledstein filed a motion for new trial, claiming that
trial counsel failed to provide appellant competent representation because he did not
consult a gang expert to rebut the prosecution gang expert's opinion. The motion stated
that Bledstein had "contacted a gang expert, Mr. Martin Flores, who expressed a different
opinion regarding an interpretation of the events that transpired during this brawl." The
motion did not include any supporting declaration.
On February 24, the court heard argument on the new trial motion.
Bledstein argued that he did not "believe prior counsel consulted any expert witnesses."
Bledstein represented that he had personally contacted Flores, a gang expert witness, who
expressed a contrary opinion to that of the prosecution expert. While describing Flores'
opinion, Bledstein said, "this is something I could have probably put together a little
better had I had a little more time." Citing the absence of any supporting declarations,
the trial court concluded there was no showing that trial counsel did not consult a gang
expert, and it denied the new trial motion. During a subsequent discussion of the Romero
motion, Bledstein stated, "[G]oing back to my motion for a new trial, . . . if the court
wants to give me another month, I will get the gang expert. I will have him read the
transcript and put together a better motion." He stated that he did not "know exactly
what" his gang expert would say, and he only knew what he thought the expert was going
to say. The court denied the request for additional time and subsequently denied the
Romero motion.
Appellant has failed to establish that the trial court abused its discretion in
denying his request for a additional time to investigate and present his new trial motion.
(People v. Hajek and Vo, supra, 58 Cal.4th at p. 1181.) His February 20 new trial motion
claimed trial counsel was ineffective because he failed to consult with a gang expert to
rebut the opinion of the prosecution expert. That motion lacked any supporting
declaration, or even a statement that current counsel had asked trial counsel whether he
consulted with a gang expert. The court did not act unreasonably or arbitrarily in denying
the request for additional time to investigate and present the new trial motion.
14
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
15
James P. Cloninger, Judge
Superior Court County of Ventura
______________________________
Sylvia Whatley Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General,
Margaret E. Maxwell, Supervising Deputy Attorney General, Yun K. Lee,
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.