People v. Chiprez CA4/1

Filed 8/11/15 P. v. Chiprez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067475
Plaintiff and Respondent,
v. (San Bernardino County Super. Ct.
No. FSB032026)
FROYLAN CHIPREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
William Jefferson Powell IV, Judge. Affirmed.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Froylan Chiprez of four counts of first degree murder and two
counts of attempted murder. (Pen. Code, §§ 187, subd. (a), 664.)1 The jury found the
crimes were committed for the benefit of a criminal street gang and the defendant
personally used and intentionally discharged a firearm in each instance. (§§ 186.22,
subd. (b)(1), 12022.53, subds. (b), (c), (e)(1).) In all but one count of attempted murder,
the jury found that the defendant personally and intentionally discharged a firearm
resulting in great bodily injury or death. (§ 12022.53, subds. (d), (e)(1).) The jury also
returned true findings the defendant committed multiple murders and the gang murder
special circumstance applied. (§ 190.2, subds. (a)(3), (a)(22).) The court sentenced
Chiprez to four consecutive life terms without the possibility of parole, plus an additional
125 years to life, plus a determinate term of 31 years four months.
Chiprez contends the trial court violated his federal constitutional right to
represent himself at trial. (U.S. Const., 6th Amend.) He argues he was denied effective
assistance of counsel in posttrial proceedings when the court held a Marsden2 hearing
and a hearing on a motion for a new trial in the absence of newly appointed counsel.
Chiprez also maintains the court abused its discretion by denying his request for a one-
day continuance when he learned he was required to state why his trial attorney did not
provide effective assistance of counsel and any other reason the trial was unfair. Finally,
1 Further statutory references are to the Penal Code.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2
Chiprez asserts the court erred when it imposed separate punishments for gang crime and
firearm use enhancements on the attempted murder counts.
We conclude the trial court did not err when it reconsidered Chiprez's motion to
represent himself and determined that considering the totality of the circumstances, the
request was untimely and would delay the trial indefinitely. We further conclude Chiprez
was not denied effective assistance of counsel in posttrial proceedings when the court
held a Marsden hearing in the absence of erroneously appointed counsel. The court had
the authority to correct its error and acted within its discretion by holding a belated
Marsden hearing. To the extent the court denied any new trial motion, it was limited to a
new trial motion on grounds of ineffective assistance of counsel. We conclude the court
abused its discretion in denying Chiprez's request for a one-day continuance to retrieve
his notes when he learned he was required to state the reasons his right to counsel was
substantially impaired and any other reason he believed he did not receive a fair trial.
However, the error was harmless. Finally, we conclude the trial court did not err when it
imposed separate punishments for gang crime and firearm use enhancements on the
attempted murder counts. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2000, the Westside Verdugo was a criminal street gang operating in San
Bernardino. There were four cliques within Westside Verdugo, including Little Counts
and 7th Street Locos (7th Street). Gilbert Agudo was in charge of Westside Verdugo and
Little Counts. His brother, Johnny Agudo, was the president of 7th Street until he was
arrested in 1999 for selling narcotics. In a plea bargain, Johnny Agudo provided
3
information resulting in the arrest and conviction of Sal Hernandez, a high ranking
member of the Mexican Mafia. According to some sources, the Mexican Mafia put a
green light―a kill order―on Johnny Agudo.
While Johnny Agudo was in prison, Luis Mendoza was in charge of 7th Street.
His cousin, defendant Froylan Chiprez, controlled most of 7th Street's guns. Johnny
Agudo was released from prison on July 6, 2000. On the evening of July 8, Froylan
Chiprez and Luis Mendoza met with Lorenzo Arias, John Ramirez, Gilbert Agudo,
Armando Villasenor, Marcelino Luna and several others. They discussed the presidency
of 7th Street, the possible lifting of the green light on Johnny Agudo and retaliation for
the recent murder of Ed Vasquez, a 7th Street gang member, by a rival gang. Late in the
evening, they drove to another location to prepare to retaliate for the Vasquez murder.
Chiprez, Mendoza, Arias and Ramirez drove together. Chiprez, Mendoza and Ramirez
were wearing bulletproof vests. During the ride, Chiprez told his companions the "green
light" on Johnny would be on their entire gang if they did not take care of it.
After they arrived, Chiprez, Mendoza, Johnny Agudo and Gilbert Agudo had a
heated argument. Mendoza pulled out a gun. He shot and killed Johnny Agudo. At
approximately the same time, Chiprez drew one of his two guns, a small Uzi with a 30-
round clip, and fired rapidly. He shot Gilbert Agudo in the head at point blank range, and
inflicted other wounds as well. Chiprez was shot in the legs. While down, Chiprez shot
and killed Marcelino Luna. Someone shot and seriously wounded Armando Villasenor.
Anthony Luna was killed as he ran from the scene. Michael Velarde was slightly
wounded while running away.
4
Arias and Mendoza asked Chiprez why he shot Marcelino Luna, who was a
member of 7th Street. Chiprez replied, "We can't leave no witnesses." Gilbert Agudo
and Johnny Agudo each had a gun in their pants pocket or waistband. Neither gun had
been fired.
Chiprez fled to Mexico. Luis Mendoza, Lorenzo Arias and John Ramirez were
arrested. Ramirez cooperated with the prosecution and served 12 years in prison for
manslaughter. Mendoza and Arias were tried, convicted and sentenced to death. In
December 2011, Chiprez was extradited from Mexico and charged with four counts of
murder and two counts of attempted murder, with gang crime, firearm use and special
circumstances enhancements.
On Friday, October 26, 2012, at a trial readiness conference, the court heard and
denied Chiprez's motion to replace his court-appointed counsel, James Gass. Chiprez
then made an oral motion to represent himself. The trial court advised Chiprez of the
perils of self-representation, found that he knowingly and intelligently waived his right to
counsel, and granted the motion. The court advised Chiprez that it had cleared its trial
calendar for the rest of the year for his case and was ready to begin the trial next week.
The court expressed concern that Chiprez's request was made to delay the trial. Chiprez
asked for discovery and said he would read 24 hours a day to prepare a defense. There
were approximately 10,000 pages of discovery. Names, addresses and locations of
witnesses would have to be redacted. The court ordered the People to provide "whatever
evidence does not need redaction" to Chiprez on Monday, October 29.
5
On October 29, the court advised Chiprez he had five days to prepare for trial.
The next available trial date was November 5. Chiprez said he had yet to receive all the
discovery and would review it as quickly as possible. He would not provide a time frame
to the court for trial readiness. The court found that Chiprez's request to represent
himself was late, the trial had been delayed for several years because Chiprez had fled the
jurisdiction, and Chiprez asked to represent himself only because he was frustrated with
the denial of his Marsden motion. Chiprez had refused to review discovery and
cooperate with his attorney. His attorney had announced he was ready for trial on Friday.
The court found that Chiprez's request to represent himself was an abuse of judicial
process, reversed the grant of pro per status, and reappointed Gass as defense counsel.3
The trial was held over 16 days in November and December 2012.
At a posttrial hearing in January 2013, Gass informed the court that Chiprez
wanted to file a motion for new trial on grounds of ineffective assistance of trial counsel,
and said, "[S]o I cannot get involved in that."
The court appointed an attorney from the conflict panel, who appeared on
Chiprez's behalf and requested continuances of the predisposition status hearings to allow
time for investigation. In April, conflict panel attorney Ed Congdon was assigned to the
case. At a hearing in June, Congdon said he had obtained the record and was working
through the files and trial transcripts. In August, he asked for "one additional"
continuance of the status hearing before selecting motion dates. In September, another
3 During the course of the trial, Chiprez brought two more Marsden motions, which
were denied.
6
attorney appeared for Congdon and asked for a continuance. The court asked Chiprez if
his sentencing would be timely if held on or about October 4. Chiprez agreed it would be
timely.
On October 4, Chiprez, Gass and the prosecutor were present. Attorney Congdon
was absent. The trial court said the California Supreme Court had disapproved the
practice of appointing a substitute or conflict attorney solely to evaluate whether a
criminal defendant received ineffective assistance of counsel (People v. Sanchez (2011)
53 Cal.4th 80, 90), and it was required to hold a Marsden hearing to determine whether
Chiprez could make a colorable claim of ineffective assistance of counsel. The court
asked Chiprez to state why he believed Gass's representation was inadequate or "any
other reason why you should get a new trial, why you think the trial was unfair. You
don't have to have legal briefs. Just tell me in your own words why you think your trial
was unfair."
Chiprez asked the court to continue the hearing for a day to allow him to
adequately prepare and bring his notes. If he had his notes, he could go step by step
through the reasons. The court directed Chiprez to "give me the gist of it" and said he
would decide whether to have a second Marsden hearing.
Chiprez said Gass did not represent him correctly. He advised Chiprez to testify
he had been shot and did not respond to the gunfire. Chiprez wanted to tell the truth.
Their relationship deteriorated from that point and he believed he needed another lawyer.
He had three Marsden hearings during the proceedings and believed his requests for new
counsel were unfairly denied. Gass had represented other people who were going to
7
testify against him. He did not object when the court allowed witnesses to be taken out of
order, without cross-examining the first witness. Chiprez became upset when Gass
would not object and was kicked out of the courtroom. The next day he was shackled in
front of the jury. Chiprez said he should have been allowed to represent himself. The
prosecutor violated ethical rules by "testifying" in her closing remarks about his prior
manslaughter conviction4 and the presence of children in the home where the shooting
occurred, and by showing photographs to the jury of a victim's bloody hands as proof the
victim did not fire a weapon.
Chiprez said that while he was testifying, Gass interrupted him and asked him
questions. There was an interview of a witness who corroborated Chiprez's claim of self-
defense but Gass said he could not present hearsay. If the witness's statement had been
presented to the jury, Chiprez believed he would not have been found guilty. The
location of the victim and other forensic evidence would have corroborated his self-
defense claim. The victim should have had gunpowder residue or burn marks showing he
had fired a gun at Chiprez. Gass did not present that evidence.
In response to the court's questions, Gass said he had been a criminal trial lawyer
for 18 years and had tried approximately 200 jury cases. Chiprez would not discuss the
case with him. He did not learn that Chiprez would testify until very late. There was a
potential conflict with one of the witnesses, but it was not an actual conflict. When he
discussed the issue with Chiprez, Chiprez waived the conflict. At the time, Chiprez was
4 Chiprez was convicted of involuntary manslaughter in 1994.
8
in a hurry to go to trial and did not want another attorney. There was a point in the trial
when a witness had testified and was due to be cross-examined, and the People asked for
another witness to be called out of order. Chiprez did not like that; however, it did not
upset Gass's cross-examination of the first witness. Gass did not want to base the defense
on forensic evidence. The issues at trial were whether those involved were afraid for
their lives when they started shooting, whether it was a planned attack or whether it was a
sudden reaction to the Agudos' activities.
The court found that Chiprez did not state a colorable claim of ineffective
assistance of counsel and was not entitled to new counsel to investigate a new trial
motion based on ineffective assistance of trial counsel. In view of the overwhelming
evidence against Chiprez, Gass's performance at trial was excellent. Gass had no control
over the forensic evidence. He was not responsible for Chiprez's conduct in the
courtroom. Chiprez's shackles were hidden from the jury. The court said, "At this time,
based on my own error, I will reappoint Mr. Gass and we will proceed to sentencing."
After the in camera hearing was concluded, the court said it did not find any
"colorable reason to proceed with the motion for new trial." The court found that the
manner in which the crime was carried out demonstrated significant planning and
criminal sophistication, and Chiprez had a prior record of homicide. The court sentenced
Chiprez to four life terms without the possibility of parole, plus sentencing enhancements
of an additional 125 years to life for personally discharging a firearm causing great bodily
injury on counts 1, 2, 3, 4 and 6, and a determinate term of 31 years four months on the
9
two attempted murder counts, including gang and firearm use enhancements. All
sentences were consecutive.
DISCUSSION
I
RIGHT OF SELF-REPRESENTATION
Chiprez contends the trial court erred when it revoked his right to represent
himself. He argues the record does not support the court's findings his request was late
and was made to delay trial. He further argues revocation of a defendant's pro per status
is justified only when the defendant has deliberately engaged in obstructionist
misconduct that seriously threatens the core integrity of the trial. Chiprez contends there
is no evidence to support a finding he engaged in serious obstructionist conduct. He
maintains the error requires reversal per se.
A
Legal Standards and Standard of Review
"A criminal defendant has a right to represent himself at trial under the Sixth
Amendment to the United States Constitution." (People v. Welch (1999) 20 Cal.4th 701,
729, citing Faretta v. California (1975) 422 U.S. 806 (Faretta).) "A trial court must
grant a defendant's request for self-representation if the defendant unequivocally asserts
that right within a reasonable time prior to the commencement of trial, and makes his
request voluntarily, knowingly, and intelligently." (People v. Lynch (2010) 50 Cal.4th
693, 721 (Lynch), abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th
610.)
10
The timeliness of the defendant's assertion of his right to self-representation is
critical. (People v. Halvorsen (2007) 42 Cal.4th 379, 433.) A motion for self-
representation (Faretta motion) may be denied if untimely.5 (Lynch, supra, 50 Cal.4th at
p. 722.) "In order to invoke an unconditional right of self-representation, the defendant
must assert the right 'within a reasonable time prior to the commencement of trial.' "
(People v. Burton (1989) 48 Cal.3d 843, 852 (Burton).) "The 'reasonable time'
requirement is intended to prevent the defendant from misusing the motion to
unjustifiably delay trial or obstruct the orderly administration of justice." (Ibid.)
California law does not define a bright-line test for determining the timeliness of a
motion for self-representation. (People v. Clark (1992) 3 Cal.4th 41, 99 (Clark).)
The timeliness of a motion for self-representation is addressed to the sound discretion of
the trial court. (Burton, supra, 48 Cal. 3d at p. 852.) Timeliness is not based "on a fixed
and arbitrary point in time, but upon consideration of the totality of the circumstances
that exist in the case at the time the self-representation motion is made." (Lynch, supra,50 Cal.4th at p. 724.) The trial court not only considers "the time between the motion
5 Chiprez recognizes this court likely would conclude his Faretta motion is
untimely under current California authority. To ensure the issue is preserved for further
review, Chiprez relies on federal authority for the proposition that a Faretta motion is
timely if made before the jury is impaneled. (Marshall v. Taylor (9th Cir. 2005) 395 F.3d
1058, 1061, fn. 17; United States v. Young (11th Cir. 2002) 287 F.3d 1352, 1353; United
States v. Tucker (10th Cir. 2006) 451 F.3d 1176, 1181; United States v. Stevens (2d Cir.
1996) 83 F.3d 60, 66.) We are not bound to follow the decisions of the federal circuit
courts. (People v. Romero (2006) 140 Cal.App.4th 15, 19.) Moreover, the federal rule
permits a court to deny an otherwise timely motion for self-representation if the motion is
made for purposes of delay, as the court found here. (See Hamilton v. Vasquez (9th
Cir.1994) 17 F.3d 1149, 1158.)
11
and the scheduled trial date, but also such factors as whether trial counsel is ready to
proceed to trial, the number of witnesses and the reluctance or availability of crucial trial
witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the
defendant had earlier opportunities to assert his right of self-representation." (Lynch, at
p. 726.)
Once a request for self-representation has been granted, the court may revoke that
right when the defendant has deliberately engaged in serious obstructionist misconduct
threatening the core integrity of the trial. (People v. Doss (2014) 230 Cal.App.4th 46,
55.) A ruling revoking a defendant's right of self-representation is reviewed for abuse of
discretion and will not be disturbed in the absence of a clear showing of abuse. (People
v. Welch, supra, 20 Cal.4th at p. 735.) The reviewing court defers to the trial court's
assessment of the defendant's motives and sincerity, the nature and context of his
misconduct and its impact on the integrity of the trial in determining whether termination
of the right of self-representation is necessary for a fair trial. (People v. Carson (2005)
35 Cal.4th 1, 12.)
B
Chiprez's Motion for Self-representation Was Untimely
We reject the argument the Faretta motion was timely. Chiprez focuses on the
length of time between his motion for self-representation and the scheduled trial date, and
disregards other factors the court may consider in determining the timeliness of a Faretta
motion. In addition, we are not persuaded by Chiprez's argument the court abused its
discretion when it revoked his right to represent himself at trial without sufficient
12
showing of misconduct. The record shows that, after the court granted Chiprez's Faretta
motion, at the next court date the court learned that the grant of self-representation would
delay the trial indefinitely.
The record shows that Chiprez's defense attorney had announced he was ready for
trial and the court had cleared its calendar in anticipation of the trial. The trial was
scheduled to begin within the week. The California Supreme Court has consistently ruled
that Faretta motions made on the "eve of trial" are untimely. (Lynch, supra, 50 Cal.4th at
p. 722; see People v. Valdez (2004) 32 Cal.4th 73, 102; People v. Horton (1995)
11 Cal.4th 1068, 1110; Clark, supra, 3 Cal.4th at pp. 99-100; People v. Frierson (1991)
53 Cal.3d 730, 742.) The case involved four counts of murder and two counts of
attempted murder, and enhancements for criminal gang activity, firearm use, firearm
discharge, and firearm discharge causing great bodily injury on each count. Trial
preparation was inherently complex. There were more than 10,000 pages of discovery
that needed to be redacted to protect witnesses before it could be turned over to Chiprez.
Although Chiprez correctly asserts the trial court was aware of these
circumstances when it granted his Faretta motion, he disregards the additional factors the
court discovered the next court day that not only would have delayed the trial indefinitely
but made self-representation highly problematic for the integrity of the trial. Chiprez did
not dispute he would need time to investigate and prepare for trial, and said he needed
time to review the discovery and other materials before he could tell the court when he
would be ready for trial. "A trial court may properly consider the delay inherently caused
by such uncertainty in evaluating timeliness." (Lynch, supra, 50 Cal.4th at p. 728.) In
13
addition, the court learned that the trial was delayed for more than 11 years when Chiprez
fled to Mexico to avoid prosecution. The victims and the prosecution had a right to a
speedy trial. (Cal. Const., art. I, § 29 [in a criminal case, the people of the State of
California have the right to due process of law and to a speedy and public trial]; see
Morris v. Slappy (1983) 461 U.S. 1, 14 [courts may not ignore victims' concerns in the
administration of criminal justice].)
Considering the totality of the circumstances, the trial court reasonably determined
the Faretta motion was untimely. (Lynch, supra, 50 Cal.4th at p. 726.) In reconsidering
its earlier ruling, the court acted within its discretion when it learned the trial had been
significantly delayed by defendant's conduct and that granting the motion was reasonably
likely to result in substantial delay and disruption of the proceedings, and threaten the
integrity of the trial. (Lynch, at pp. 726-728.)
II
DENIAL OF RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
Chiprez contends the trial court denied his right to effective assistance of counsel
when it held a dispositive hearing on what he characterizes as a new trial motion outside
the presence of appointed counsel. He asserts the error requires reversal per se. Chiprez
acknowledges the court may have erred when it appointed new counsel to investigate
whether the trial attorney provided ineffective assistance of counsel but argues that once
the court appointed new counsel, it could not interfere with the established attorney/client
relationship. Chiprez also asserts the court abused its discretion when it denied his
request to continue the hearing for a day to allow him to retrieve and review his notes.
14
He argues he had expected his attorney to provide the trial court with a status report on
his motion for new trial and did not anticipate he would be required to argue a Marsden
and new trial motions without counsel.
A
Legal Standards and Standard of Review
The California Supreme Court disapproves the practice of appointing a substitute
or conflict attorney to evaluate whether a criminal defendant has a legal ground on which
to move to withdraw a plea on the basis of the current counsel's incompetence. (People
v. Sanchez, supra, 53 Cal.4th at pp. 89-90.) If a defendant requests substitute counsel, the
trial court is required to give the defendant an opportunity to state any grounds for
dissatisfaction with the current appointed attorney. (Ibid., citing Marsden, supra,
2 Cal.3d at p. 126.) The court must appoint substitute counsel as attorney of record for
all purposes if the defendant shows that his right to counsel has been "substantially
impaired."6 (Marsden, supra, 2 Cal.3d at p. 123.)
"The court should deny a request for new counsel at any stage unless it is satisfied
that the defendant has made the required showing. This lies within the exercise of the
trial court's discretion, which will not be overturned on appeal absent a clear abuse of that
discretion." (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).)
6 "Substantial impairment of the right to counsel can occur when the appointed
counsel is providing inadequate representation or when 'the defendant and the attorney
have become embroiled in such an irreconcilable conflict that ineffective representation
is likely to result [citation].' " (People v. Clark (2011) 52 Cal.4th 856, 912.)
15
B
The Trial Court Had the Authority to Reconsider Its Appointment of Conflict Counsel
We conclude the trial court acted within its discretion by belatedly holding a
Marsden hearing to comport with appropriate judicial procedure. (Sanchez, supra,
53 Cal.4th at pp. 89-90.) Every court has inherent power " 'to develop rules of procedure
aimed at facilitating the administration of criminal justice and promoting the orderly
ascertainment of the truth.' " (People v. Castello (1998) 65 Cal.App.4th 1242, 1247
(Castello).) A court's inherent power includes the authority to rehear or reconsider
rulings. (Id. at p. 1248.) "A court could not operate successfully under the requirement
of infallibility in its interim rulings. Miscarriage of justice results where a court is unable
to correct its own perceived legal errors, particularly in criminal cases where life, liberty,
and public protection are at stake." (Id. at p. 1249.)
Chiprez does not show he was prejudiced by the delayed Marsden hearing. A
Marsden hearing is a prerequisite to determine whether a criminal defendant has a legal
ground on which to move to file a new trial motion on the basis of the current counsel's
incompetence. (Cf. Sanchez, supra, 53 Cal.4th at pp. 89-90.) By not challenging the
ruling in the posttrial Marsden hearing or in any of the three earlier Marsden hearings,
Chiprez has waived any claim he was entitled to new counsel. He was not entitled to a
new court-appointed attorney unless he could make a colorable claim of inadequacy of
counsel. (Smith, supra, 6 Cal.4th at p. 693.) Chiprez received the process that was due.
(Sanchez, at pp. 89-90.)
16
C
Chiprez Was Not Denied Effective Assistance of Counsel in Posttrial Proceedings
We are not persuaded by the claim the trial court held a "dispositive hearing" on a
new trial motion7 outside the presence of appointed counsel. The court held a Marsden
hearing to determine whether to appoint new counsel to investigate a motion for new trial
on the basis of the current counsel's incompetence. The court's comment following the
Marsden hearing that "Mr. Gass has been reappointed inasmuch as I found no colorable
reason to proceed with the motion for new trial" refers to the process of appointing new
counsel to investigate a new trial motion on the ground of ineffective assistance of
7 Section 1181, governing new trial motions, provides: "When a verdict has been
rendered or a finding made against the defendant, the court may, upon his application,
grant a new trial, in the following cases only:
1. When the trial has been had in his absence except in cases where the trial may
lawfully proceed in his absence;
2. When the jury has received any evidence out of court, other than that resulting
from a view of the premises, or of personal property;
3. When the jury has separated without leave of the court after retiring to
deliberate upon their verdict, or been guilty of any misconduct by which a fair and due
consideration of the case has been prevented;
4. When the verdict has been decided by lot, or by any means other than a fair
expression of opinion on the part of all the jurors;
5. When the court has misdirected the jury in a matter of law, or has erred in the
decision of any question of law arising during the course of the trial, and when the district
attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct
during the trial thereof before a jury;
6. When the verdict or finding is contrary to law or evidence, . . ; [¶] . . . [¶]
8. When new evidence is discovered material to the defendant, and which he
could not, with reasonable diligence, have discovered and produced at the trial. . . .
9. When the right to a phonographic report has not been waived, and when it is
not possible to have a phonographic report of the trial transcribed by a stenographic
reporter as provided by law or by rule . . . ." (§ 1181.)
17
counsel. To the extent the court's remarks are construed as denying a new trial motion,
the context refers only to a new trial on the ground of ineffective assistance of counsel.
The court's finding did not prevent Gass from bringing a new trial motion on another
ground, either in January or October 2012.
In January, Gass informed the court Chiprez wanted to bring a motion for new
trial on grounds of ineffective assistance of counsel. Gass did not state there were any
other grounds for a new trial. In October, Gass was present when Chiprez told the court
why he felt the trial was unfair. Other than a claim of prosecutorial misconduct (and his
allegations of ineffective assistance), Chiprez did not make any claims that would meet
the criteria for a new trial under section 1181. The prosecutor's remarks were a fair
comment on the evidence introduced at trial. Chiprez does not challenge the findings that
Gass provided competent representation to him. We presume a competent attorney
would have informed the court if there were grounds for a new trial. After he was
reappointed, Gass did not inform the court there were any grounds for a new trial motion
under section 1181. We conclude Chiprez was not denied effective assistance of counsel
in posttrial proceedings.
D
The Trial Court Abused Its Discretion In Denying A Continuance
We conclude the trial court abused its discretion in denying Chiprez's request to
continue the Marsden hearing for a day to allow him to retrieve his notes and prepare his
18
remarks.8 A court may grant a continuance in criminal proceedings for good cause.
(§ 1050, subd. (e).) Although the trial court has discretion to grant or deny a request for a
continuance, "that discretion may not be exercised in such a manner as to deprive the
defendant of a reasonable opportunity to prepare his defense." (Jennings v. Superior
Court of Contra Costa County (1967) 66 Cal.2d 867, 875-876.)
Here, the court asked Chiprez to explain why he believed his trial attorney was
ineffective and provide any other reason he felt the trial was not fair. Chiprez did not
have any prior notice he would be asked to do so. The requested continuance was
reasonable. Chiprez explained he needed his notes to present his case "step by step." A
one-day continuance of the Marsden hearing would have allowed him to do so without
substantially delaying the proceedings.
However, after examining the entire cause, we conclude it is not reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Chiprez
informed the court of his complaints about trial counsel and other aspects of the trial he
felt were unfair. He was allowed to respond to Gass's testimony and the court's ruling.
When, as here, " 'the claim of inadequacy relates to courtroom events that the trial court
observed, the court will generally be able to resolve the new trial motion without
appointing new counsel for the defendant.' " (Smith, supra, 6 Cal.4th at pp. 692-693.) In
addition, Chiprez had three earlier Marsden hearings in which he presented his concerns
8 Chiprez did not object to proceeding in Congdon's absence.
19
about trial counsel to the court―before trial, during jury selection and in the middle of
the trial―and the court had denied his requests to appoint new counsel. Thus, to the
extent he wanted to raise the same claims at the October 4 hearing and did not do so, the
court had considered those claims and denied his requests for new counsel. The error
was harmless.
III
GANG CRIME ENHANCEMENT
Chiprez argues the trial court erred when it imposed separate punishments for
gang crime and firearm enhancements for the attempted murders of Michael Velarde
(count 5) and Armando Villasenor (count 6). He contends section 12022.53, subdivision
(e)(2), prohibits the imposition of a gang crime enhancement because he was only
vicariously liable for the two attempted murders, and the gang crime enhancement could
not be imposed in addition to the firearm use enhancements because he did not personally
use or discharge a firearm in the commission of those offenses.
A
Legal Standards and Standard of Review
"Section 12022.53 imposes increasingly severe sentence enhancements for firearm
use in the commission of certain felonies set forth in subdivision (a) of that section."
(People v. Brookfield (2009) 47 Cal.4th 583, 589 (Brookfield).) These felonies include
murder and attempted murder. (§ 12022.53, subd. (a)(1), (18).) "Under section
12022.53, a defendant's personal use of a firearm in the commission of a specified felony
results in an additional 10-year prison term (§ 12022.53, subd. (b)), personal and
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intentional discharge of a firearm leads to an additional 20 years (id., subd. (c)), while
personal and intentional discharge of a firearm resulting in death or great bodily injury to
a person other than an accomplice adds a prison term of 25 years to life (id., subd. (d)) to
the sentence for the underlying crime."9 (Brookfield, supra, 47 Cal.4th at p. 589.)
"Section 12022.53, subdivision (e)(1), expressly extends liability to aiders and
abettors to crimes by a principal armed with a gun, for crimes committed in furtherance
of the purposes of a criminal street gang." (People v. Garcia (2002) 28 Cal.4th 1166,
1176.) "There is no dispute that an aider and abettor need not personally use or discharge
a firearm to be liable under section 12022.53. (§ 12022.53, subd. (e)(1).)" (Id. at
p. 1177.)
Section 12022.53, subdivision (e)(2), limits the effect of subdivision (e)(1).
(Brookfield, supra, 47 Cal.4th at p. 590.) "When another principal in the offense uses or
discharges a firearm but the defendant does not, there is no imposition of an
'enhancement for participation in a criminal street gang . . . in addition to an enhancement
imposed pursuant to' section 12022.53. (§ 12022.53(e)(2).)" (Id. at p. 590.) However, "a
defendant who personally uses or discharges a firearm in the commission of a gang-
9 "[S]ection 12022.53 was enacted to ensure that defendants who use a gun remain
in prison for the longest time possible and that the Legislature intended the trial court to
stay, rather than strike, prohibited enhancements under section 12022.53." (People v.
Gonzalez (2008) 43 Cal.4th 1118, 1129 (Gonzalez).) Thus, "after a trial court imposes
punishment for the section 12022.53 firearm enhancement with the longest term of
imprisonment, the remaining section 12022.53 firearm enhancements and any section
12022.5 firearm enhancements that were found true for the same crime must be imposed
and then stayed." (Id. at p. 1130.)
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related offense is subject to both the increased punishment provided for in section 186.22
and the increased punishment provided for in section 12022.53." (Id. at p. 590.)
"Whether a defendant used a firearm in the commission of an enumerated offense
is for the trier of fact to decide. [Citation.] We review the sufficiency of the evidence to
support an enhancement using the same standard we apply to a conviction. [Citation.]
Thus, we presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence." (People v. Carrasco (2006) 137 Cal.App.4th
1050, 1058.)
B
Additional Factual Background
Chiprez was charged with gang crime enhancements under section 186.22 on each
count. He was also charged with firearm enhancements under section 12022.53,
subdivision (b), [personal use of a firearm], subdivision (c), [personal and intentional
discharge of a firearm] and subdivision (d), [personal and intentional discharge of a
firearm resulting in great bodily injury] on each count. With the exception of the
allegation under subdivision (d) in count 5, the jury returned true findings on the firearm
and gang crime enhancements. The jury specifically found that Chiprez personally used
a handgun, and personally and intentionally discharged a handgun, in counts 5 and 6, and
that he personally and intentionally discharged a handgun, which caused great bodily
injury to Villasenor, in count 6.
According to the abstract of judgment and the minute order, the trial court
imposed the following sentence enhancements: As to count 5 (Velarde): Six years eight
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months (1/3 the middle term) pursuant to section 12022.53, subdivision (c); and three
years four months (1/3 the middle term) pursuant to section 186.22; it imposed but stayed
10 years pursuant to section 186.22. As to count 6 (Villasenor), the court imposed 25
years to life pursuant to section 12022.53, subdivision (d); and 10 years pursuant to
section 186.22; it imposed but stayed 10 years pursuant to section 12022.53, subdivision
(b), and 20 years pursuant to section 12022.53, subdivision (c).
C
The Trial Court Did Not Err When It Imposed the Gang Crime and Firearm Use
Enhancements
Chiprez argues the charging document provided insufficient notice he would be
subject to gang crime and firearm enhancements for his personal use and discharge of a
firearm. He contends the charges allege only that a principal committed the firearm
enhancements. Chiprez maintains that the jury was given ambiguous verdict forms,
which conflated his personal use and discharge of a firearm (not alleged), with personal
use and discharge of a fireman by a principal (alleged). He argues there is not substantial
evidence to support a finding he personally tried to kill Velarde and Villasenor. He also
contends the jury may have been misled by the prosecutor's closing argument in which
she told the jury the firearm enhancements applied to the defendant even if someone else
in the gang did the shooting.
"[A] defendant has a cognizable due process right to fair notice of the specific
sentence enhancement allegations that will be invoked to increase punishment for his
crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 747, 752-754 [court erred when it
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purported to substitute the unpled multiple victim circumstance for the properly pleaded
and proved gun use circumstance at sentencing].) "Section 12022.53, subdivision (j),
states: 'For the penalties in this section to apply, the existence of any fact required under
subdivision . . . (d) shall be alleged in the information or indictment and either admitted
by the defendant in open court or found to be true by the trier of fact.' (Italics added.)"
(People v. Riva (2003) 112 Cal.App.4th 981, 1001 [defendant had proper notice of
firearm enhancement because it was alleged as to other counts]; accord, People v. Arias
(2010) 182 Cal.App.4th 1009, 1018 (Arias) [nothing in the charging documents or
pleadings informed the defendant that the People would seek to use the multiple victim
circumstance or the gun use circumstance to secure additional sentence enhancements].)
Unlike the charging documents in Mancebo and Arias, the charging document in
this case expressly alleges that a principal personally used or discharged a firearm under
section 12022.53, subdivisions (b), (c) and (d) in each count. Further, any ambiguity in
the charging document was clarified by the court in its instructions to the jury. Nothing
in the record indicates Chiprez objected to this instruction on any grounds, including
inadequate pleading. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 [party
forfeits the right to claim error as grounds for reversal on appeal when he or she does not
raise the objection in the trial court].) The court instructed the jury: "if you find the
defendant guilty of the crimes charged in Counts 1, 2, 3, 4, 5, and 6 . . . you must then
decide whether, for each crime, the People have proved the additional allegations that the
defendant personally and intentionally discharged a firearm during those crimes and, if
so, whether the defendant's act caused great bodily injury or death. . . . [¶] . . . [¶] To
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prove that the defendant intentionally discharged a firearm, the People must prove that:
1. The defendant personally discharged a firearm during the commission [or attempted
commission] of that crime; AND 2. The defendant intended to discharge the firearm."
(CALCRIM No. 3150.) The jury was also instructed that it must follow the law as the
court explained it, and if it believed the attorneys' comments on the law conflicted with
the court's statements, it must follow the court's instructions. (CALCRIM No. 200.) We
presume the jury understood and followed those instructions in reaching its verdict.
(People v. Williams (2009) 170 Cal.App.4th 587, 623, citing People v. Danielson (1992)
3 Cal.4th 691, 722.)
In People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1238, the reviewing court
held that the defendant was not subject to a gang crime enhancement for participation
because the jury found only that a principal used a firearm in the commission of the
attempted murder. Here, by contrast, the jury found that Chiprez personally and
intentionally used and discharged a firearm. There is no doubt that Chiprez fired a gun
during the commission of the murders and attempted murders, and was a principal in
each event. The record does not support defendant's argument the murders and attempted
murders were discrete events and he was only an accomplice in counts 5 and 6.
Velarde testified he saw semiautomatic rapid fire coming from Chiprez's gun. He
turned to look at the Agudo brothers when he was hit in the back. He did not see who
shot him. Velarde testified Chiprez fired a gunshot behind his head. There is substantial
evidence to support the findings Chiprez personally and intentionally fired a gun at
Velarde and Villasenor, and that Villasenor suffered serious bodily injury as a result. We
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therefore conclude the trial court did not err when it imposed gang crime penalty
enhancements in counts 5 and 6.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
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