Opinion
F057898
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE CRUZ GONZALES, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1097773)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl W. Johnson, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jose Cruz Gonzales of the first degree murder of Thomas Allen Cox. (Pen. Code, §§ 187, 189.) The jury also found true the allegation that he personally used a firearm, causing death, within the meaning of section 12022.53, subdivision (d). The trial court sentenced him to two consecutive terms of 25 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
While Gonzales makes several arguments, the basis for each of the arguments is that trial counsel had a conflict of interest because his office (the public defender's office) previously had represented several of the witnesses against Gonzales. Gonzales contends that this conflict rendered trial counsel ineffective and requires reversal of the judgment. As we shall explain, there is nothing in the record to support the claim that trial counsel had a conflict of interest, nor is there any evidence that any claimed conflict resulted in prejudice to Gonzales. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The Information
Gonzales was charged with first degree murder (§§ 187, 189) in the death of Cox. The information also alleged enhancements for personal use of a firearm resulting in great bodily injury or death (§ 12022.53, subd. (d)) and for committing the crime for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Finally, the information alleged Gonzales was subject to a term of life in prison without the possibility of parole because he was an active member of a criminal street gang and he committed the crime to further the activities of the criminal street gang. (§ 190.2, subd. (a)(22).)
Prosecution's Case
Beginning in the late afternoon of Sunday, August 28, 2005, Sandra Montes Herrera and Bryan Scott Sanders hosted a party at their residence. Cox and Gonzales both attended the party. Herrera did not consume any alcohol or drugs at the party because she was pregnant. Later that evening, Cox, Gonzales, and a third man, later identified as Dale Daniels, left the party in a vehicle. Several hours later, only Daniels and Gonzales returned in the vehicle. Herrera heard Gonzales say that he "did it." Prior to that night, Herrera had heard Gonzales state that there were rumors that Cox was a snitch.
Sanders confirmed there had been a party at his house on August 28, 2005, and that Cox and Gonzales had attended. Sanders saw Cox leave with Gonzales and Daniels, but only Gonzales and Daniels returned later that night. Sanders had spoken with Gonzales a few days before the party. At that time, Gonzales told Sanders that he thought Cox might be a snitch and needed to be "taken care of." The night of the party Gonzales asked Sanders for a "throw-away" gun, i.e., a gun that could be thrown away after it was used.
Daniels testified he attended the party at Sanders's house. Daniels and his brother-in-law, Paul Lopez, drove to the party in Lopez's vehicle. Cox and Gonzales also attended the party. A few hours after arriving at the party, Daniels left the party with Cox and Gonzales to take Cox home. Daniels drove on back roads utilizing directions given to him by both Cox and Gonzales. Daniels pulled over to the side of the road near a canal so that all three men could urinate. Cox and Gonzales walked a short distance away from Daniels. While Daniels was urinating, he heard four or five gunshots and he immediately ran back to the vehicle. He heard Gonzales yell at him to get into the car. Daniels drove off as soon as Gonzales got into the vehicle. Daniels drove back to the party, returned the keys to Lopez, and then left the party. He did not tell anyone what had occurred because he was afraid.
In the late night hours of August 28, 2005, Trisha Lynn Winters was lying in bed when she heard five to six gunshots. Winters's mother also heard the gunshots.
On August 30, 2005, at approximately 8:30 in the morning, an employee of a local farm discovered Cox's body floating in a canal. The canal is located near the Winters residence.
Detectives discovered six shell casings, a small folding knife, and scuff marks, as if someone had been dragged along the canal, approximately one-half mile from where the body was recovered. Another shell casing was found on the roadway a short distance from the location. All of the shell casings were .380-caliber, and three of the casings were manufactured by Cascade Cartridge, Inc. In addition, three other shell casings of a different caliber were discovered in this area.
Forensic examination of Cox revealed four gunshot wounds, two of which would have caused death within minutes, and one of which would have caused death within a matter of hours if untreated. The condition of the body was consistent with extended exposure to water. The pathologist testified that the condition of the body at the examination was consistent with the body having been put into the canal on the night of August 28, 2005, with a time of death in the late night of that date. Four bullets were recovered during the autopsy.
In the early morning hours of August 29, 2005, police officers from the Modesto Police Department were dispatched to Sanders's residence after receiving a report that shots had been fired at the residence. At least six marked police vehicles responded to the scene. As officers approached the residence, they observed Gonzales standing in front of the house. The officers identified themselves and ordered Gonzales to stop. Initially, Gonzales obeyed the officers' orders, but after a few moments he ran into the residence. Officers then used the public address system inside one of their vehicles to order the occupants to come out of the residence. Gonzales came out of the residence in a relaxed manner and complied with the officers' orders. When officers searched the residence, they located a handgun in the tank of one of the toilets.
Sanders was inside the residence when the police approached. He heard Gonzales enter the house, say he had a gun, and that the gun was hot. Sanders then observed Gonzales exit the bathroom and go outside.
Testing determined that three of the .380-caliber casings found at the crime scene were fired from the gun recovered at Sanders's residence and the other .380-caliber casings found could have been fired from this gun. The bullets recovered from the victim's body also were compared with bullets test fired by a criminalist. The criminalist was unable to identify the bullets as having been fired from the recovered weapon because the barrel of the weapon appeared to have been altered mechanically.
Jennifer Delores Rodriguez had had a romantic relationship with the victim for approximately eight years. Rodriguez last spoke with Cox by phone two or three days before his body was recovered from the canal.
Cameron Robert Miller was a friend of the victim's. He last saw the victim three to four days before the body was recovered.
Several months after Cox's body was discovered, Gonzales called Herrera and told her an investigator was going to interview her about Cox. Gonzales told Herrera to tell the investigator that he (Gonzales) and Cox were friends.
At trial, Ramona Casioce admitted that she dated Gonzales in 2005 and that she had spoken with detectives about Cox's murder. She denied, however, that Gonzales ever made any incriminating statements to her or that she told detectives that he had done so.
A recording of Casioce's statement to detectives was played to the jury. In the statement, Casioce told detectives that Gonzales had stated he had dumped Cox's body into the canal because Cox owed Sanders $1,000. Gonzales also said that Cox's head had been removed from his body. Gonzales said it was fun dumping Cox's body into the canal. Gonzales also said that he needed to dispose of some bullets from the same box as those that were used in the killing. When Casioce indicated she did not believe Gonzales, he showed her a newspaper article reporting that a body had been recovered from a canal. Gonzales also stated he had killed Cox, but claimed he was joking. Generally, Gonzales stated that another person had killed Cox.
At trial, Rosa Hernandez Perez could not recall anything about the events surrounding Cox's death. She had been arrested in 2005, however, and at that time told detectives that Gonzales admitted to her that he had killed Cox because he believed Cox was a snitch. Her interview with detectives was recorded and was played to the jury.
Defense Witnesses
Robert Don Lawerence, M.D., a pathologist, reviewed the autopsy of Cox. He opined that Cox's body had been in the water at least eight to 10 days, perhaps longer.
Turhon Murad, Ph.D., is a physical anthropologist. He performed an experiment in an attempt to determine how long the hands of a body would need to be submerged before the skin would peel off, as was the case with Cox's hands. Murad opined that this condition could not develop within 36 hours, but likely would take between 146 and 161 hours.
The Verdict and Sentencing
The jury convicted Gonzales of first degree murder and found he personally used a firearm during the commission of the crime, resulting in great bodily injury within the meaning of section 12022.53, subdivision (d). The jury, however, found the crime was not committed for the benefit of a criminal street gang and that Gonzales was not an active participant in a criminal street gang at the time the crime was committed.
The trial court imposed consecutive sentences of 25 years to life for the murder and the firearm enhancement.
DISCUSSION
I. Conflict of Interest
Gonzales claims that trial counsel had a conflict of interest that compromised trial counsel's loyalty to him, resulting in a violation of his constitutional right to an attorney. (People v. Rundle (2008) 43 Cal.4th 76, 168, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin))
Gonzales's claims stem from several comments made on the record. Gonzales originally was represented by an attorney who became seriously ill, thus requiring appointment of a new attorney. The public defender's office was appointed to represent Gonzales. Trial counsel was an employee of the public defender's office. At what appears to be the initial hearing attended by trial counsel, he stated that his office had not yet completed its conflicts check, but Gonzales claimed that the public defender's office had represented two of the "star witnesses" against him. The identity of the star witnesses is not in the record.
At a status hearing two weeks later, trial counsel explained that he had not completed a conflicts check because Gonzales's prior attorney had not provided the discovery in the case. Once again, trial counsel stated that Gonzales claimed the public defender's office had a conflict that would prevent it from representing Gonzales. Trial counsel informed the trial court he could neither confirm nor deny whether a conflict existed.
The next hearing at which a possible conflict was discussed occurred six months later when Gonzales made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At the hearing, Gonzales stated that one of the reasons he needed new appointed counsel was because the public defender's office had represented some of the witnesses in the case. Gonzales identified Casioce and Perez as two witnesses who had been represented by the public defender's office. Trial counsel stated he was unsure whether any conflict existed and was instructed by the trial court to resolve the issue. Also, Sanders mentioned he was represented by the public defender's office at one point as the result of charges that arose out of the search of his house (during which the handgun used to murder Cox was discovered).
After the verdict had been reached, Gonzales again made a Marsden motion. He asserted trial counsel was ineffective because, among other reasons, the public defender's office had represented some of the witnesses in the case. Trial counsel explained that his office had represented "just about everybody who testified except Bryan Sanders." The public defender's office concluded that there was no conflict because the representation of the witnesses occurred in unrelated matters, and none of the witnesses remained on probation. Trial counsel explained that his office decided whether a conflict existed, not him personally. He then mentioned that "at the time I was involved in a labor dispute issue of sorts with regards to" the conflict issue.
Gonzales argues this record establishes that trial counsel acted throughout trial under a conflict of interest, requiring reversal of the judgment. Reversal is required, according to Gonzales, because he should be afforded a presumption of prejudice because of "the number of witnesses affected by the conflict of interest."
In Mickens v. Taylor (2002) 535 U.S. 162 (Mickens), the Supreme Court of the United States explained that under the United States Constitution a claim that trial counsel acted while under a conflict of interest was a species of ineffective assistance of counsel and, generally, the issue was governed by the rule of Strickland v. Washington (1984) 466 U.S. 668, 685-686: A defendant must establish a reasonable probability that the result of the proceeding would have been different if counsel had not been deficient. (Mickens, at p. 166.) The Supreme Court also noted an exception to this general rule where assistance of counsel has been denied entirely or during a critical stage of the proceedings.(Ibid.)Under such circumstances, prejudice is presumed and reversal is required. (Ibid.)
The presumption of prejudice also has been applied by the Supreme Court where a defendant's attorney "actively represented conflicting interests." (Mickens, supra, 535 U.S. at p. 166.) The issue in Mickens was whether the presumption of prejudice standard should be applied where the trial court "fails to inquire into a potential conflict of interest about which it knew or reasonably should have known." (Id. at p. 164.) Since trial counsel had not asserted to the trial court that he could not represent multiple defendants, the Supreme Court concluded that the defendant was required to establish that the conflict of interest adversely affected trial counsel's performance. (Id. at pp. 173-174.)
The alleged conflict of interest arose because at the time the defendant murdered the victim, one of the attorneys appointed to represent the defendant also represented the victim in an unrelated criminal matter. Trial counsel did not view the situation as creating a conflict of interest because the victim was dead and counsel no longer represented him. (Mickens, supra, 535 U.S. at pp. 164-165.) The Supreme Court limited its holding to the standard of review when the trial court had a duty to inquire. Whether such a duty existed in the case was not addressed. (Id. at p. 174.)
At the time Mickens was before the Supreme Court, California recognized not only the federal right to conflict-free counsel, but also an independent right under the California Constitution to conflict-free counsel. (Cal. Const., art. I, § 15; Rundle, supra, 43 Cal.4th at p. 174.) California also had established a more stringent test under the California Constitution. "Although the federal Constitution—regardless of whether a presumption of prejudice applies—requires proof of an actual conflict of interest, that is, proof that counsel's conflict adversely affected his or her performance during the proceedings [citation], under the state Constitution we have required only that the record support an 'informed speculation' that a 'potential conflict of interest' impaired the defendant's right to effective assistance of counsel. [Citations.]" (Rundle, at pp. 174175.)
These different standards were addressed by the California Supreme Court in Doolin, supra, 45 Cal.4th 390.
The Supreme Court began by noting the general rule under both constitutions that a defendant was entitled to representation by counsel who was "free from any conflict of interest that undermines counsel's loyalty to his or her client. [Citations.]" (Doolin, supra, 45 Cal.4th at p. 417.) "'As a general proposition, such conflicts "embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests. [Citation.]"' [Citations.]" (Ibid.)
The Supreme Court next noted that Mickens confirmed that a conflict of interest under the federal Constitution was a category of ineffective assistance of counsel claims that, as a general rule, required a defendant to prove (1) counsel's performance was deficient, and (2) there was a reasonable probability that the result of the proceeding would have been different if counsel had performed adequately. (Doolin, supra, 45 Cal.4th at p. 417.) "In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest 'that affected counsel's performance—as opposed to a mere theoretical division of loyalties.' [Citations.] '[I]nquiry into actual conflict [does not require] something separate and apart from adverse effect.' [Citation.] 'An "actual conflict," for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.' [Citation.]" (Id. at pp. 417-418.)
The Supreme Court also observed that it previously had concluded that one way to establish whether the conflict of interest adversely affected trial counsel's performance under the federal standard was to determine if trial counsel "'"pulled his punches," i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are ... bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.' [Citation.]" (Doolin, supra, 45 Cal.4th at p. 418.)
The Supreme Court then turned to the prejudice requirement. It recognized that where trial counsel actively represented conflicting interests, both the federal and state Constitutions applied a presumption of prejudice. (Doolin, supra, 45 Cal.4th at p. 418.) In most instances, however, the Sixth Amendment "requires a defendant to show . . . a reasonable probability that but for counsel's deficiencies, the result of the proceeding would have been different. [Citations.]" (Doolin, at p. 421.)
After a thorough analysis of decisions under the state Constitution, the Supreme Court rejected the separate state standard. "Upon close examination of the federal standard and our own, we discern no ultimate substantive difference between the two. Our elusive and somewhat varied application of our state standard over the past four decades, moreover, strongly suggests that our informed speculation formulation is too amorphous to provide meaningful guidance to either the bench or bar. [¶] We therefore conclude that employing both standards is unnecessary and confusing. In the final analysis, both standards involve a consideration of prejudice in the outcome. The federal constitutional approach zealously protects a criminal defendant's constitutional right to conflict-free counsel. The federal articulation of the constitutional requirements is clear and provides a more meaningful framework for review. Today, we therefore harmonize California conflict of interest jurisprudence with that of the United States Supreme Court and adopt the standard set out in Mickens.'" (Doolin, supra, 45 Cal.4th at p. 421.)
These two cases set forth the analysis we must employ in analyzing Gonzales's claim. Gonzales must demonstrate (1) trial counsel's performance was deficient because he labored under a conflict of interest that adversely affected his performance, and (2) he (Gonzales) suffered prejudice, either because prejudice is presumed or because there is a reasonable probability that the result of the trial would have been different if counsel had not had a conflict. We conclude that Gonzales cannot meet either requirement.
First, Gonzales cannot establish a conflict of interest existed. Nor can he establish that the alleged conflict adversely affected trial counsel's performance. We have summarized all of the evidence on the issue. While trial counsel stated that his office had represented most of the witnesses at some point, the most significant statement was his office's conclusion that no conflict of interest existed because it did not represent any of the witnesses at the time. Nor is there any evidence in the record that trial counsel personally had represented any of the witnesses.
This issue was addressed in three relevant cases. In People v. Cox (2003) 30 Cal.4th 916, the defendant argued that his conviction must be reversed because both of his attorneys previously had represented witnesses in the proceeding. The record indicated that one of the attorneys was employed by the public defender's office. The public defender's office had represented one potential witness in an unrelated matter, but that witness agreed to waive any possible privilege and subject herself to cross-examination on any communications between the witness and her attorney from the public defender's office. This trial counsel also had declared a conflict and refused to represent another potential witness in the case. (Id. at p. 947.)
Disapproved on other grounds in Doolin, supra, 45 Cal.4th at page 421, footnote 22.
Defendant's second attorney was appointed to represent one of the witnesses in the case, but was replaced and represented to the trial court that he had had no contact with the potential witness. Another potential witness had been represented by the second attorney's firm, but the second attorney represented to the court that he had not had any contact with the potential witness. A third witness also had been represented by another member of the second attorney's firm, but the firm no longer represented her. (Cox, supra, 30 Cal.4th at pp. 947-948.)
The Supreme Court began its analysis by observing that "[a] conflict may arise if a former client is a witness in a new case because the attorney is forbidden to use against a former client any confidential information acquired during that attorney-client relationship. [Citations.] [¶] But if the attorney possesses no such confidential information, courts have routinely held that no actual or potential conflict of interest exists." (Cox, supra, 30 Cal.4th at p. 949.)
Applying these principles, the Supreme Court rejected defendant's claim. "[D]efendant has made no showing that an actual or potential conflict existed that adversely affected counsel's performance. Instead, defendant makes only the conclusory assertion that defense counsel could not effectively cross-examine witnesses . . . as to the 'circumstances of the charges upon which counsel formerly represented them.' Defendant makes no claim that defense counsel could not effectively cross-examine these witnesses as to their testimony in the current case, nor does he assert that defense counsel even possessed confidential information acquired during the former representation." (Cox, supra, 30 Cal.4th at p. 950.)
Similarly, Gonzales has not made any showing of an actual conflict, or even a potential conflict, that adversely affected trial counsel's performance. There is nothing in the record to show that the public defender's prior representation of these witnesses prevented trial counsel from effectively cross-examining these witnesses, or that trial counsel possessed any confidences from any of the witnesses.
A similar claim was made in Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566 (Rhaburn). In this case, the district attorney moved to disqualify the public defender's office because it had represented one of the witnesses in an unrelated matter that could be used to attack the witness's credibility. The prior representation occurred seven years before the trial in this case. Trial counsel opposed the motion, noting (1) the record of the witness's case was not stored in the office; (2) he had been instructed not to inquire about the case; (3) he did not work for the public defender when the case was defended; and (4) his ability to cross-examine the witness was not compromised. A declaration also was submitted by another attorney in the public defender's office stating that he had reviewed the witness's file and it contained no relevant confidences. (Id. at p. 1570.)
The appellate court concluded that a rule of automatic disqualification because the public defender's office previously represented a witness in a case was unjustified. (Rhaburn, supra, 140 Cal.App.4th at p. 1581.) Because trial counsel did not have a direct and personal relationship with the witness, direct acquisition of confidential information should not be presumed. (Ibid.) Instead, the trial court "should evaluate the totality of the circumstances in determining whether there is a reasonable possibility that the individual attorney representing defendant either has obtained confidential information about the witness collected by his or her office, or may inadvertently acquire such information through file review, office conversation, or otherwise." (Ibid.)
It is significant that the issue in Rhaburn arose when the trial court granted the prosecution's motion to recuse counsel. While the process described in Rhaburn is appropriate when evaluating such a motion, we do not suggest the procedure should be utilized in a case such as this, where no one suggests a conflict existed. Rhaburn is relevant to Gonzales's argument because it establishes that a conflict does not automatically exist simply because the public defender's office represented a witness in a prior action.
The third relevant case is People v. Lopez (2008) 168 Cal.App.4th 801 (Lopez).Trial counsel was employed by the public defender's office. During trial, it was discovered that one of the witnesses recently had been represented by the public defender's office. After discussing the matter with his office, trial counsel informed the trial court that it had been determined a conflict did not exist. The defendant objected and requested new appointed counsel because of the asserted conflict of interest. The trial court disagreed and the trial resulted in defendant's conviction of murder.
This court rejected the defendant's claim that trial counsel had a conflict of interest that rendered his representation ineffective. "First, no showing is in the record that [trial counsel] obtained any confidential information from [the witness]. Second, a justification 'for declining to apply a rigid presumption [of possession of confidential information]' in the context of representation by the public defender's office 'is that "[u]nlike their private sector counterparts, public sector lawyers do not have a financial interest in the matters on which they work"' so '"they may have less, if any, incentive to breach client confidences."' [Citation.] Third, since [trial counsel] never had 'a "direct and personal" relationship' with [the witness], whom a former colleague no longer with the public defender's office once represented, 'the courts should normally be prepared to accept the representation of counsel, as an officer of the court, that he or she has not in fact come into possession of any confidential information acquired from the witness and will not seek to do so.' [Citation.] ... [¶] To obtain relief on appeal, the defendant must show either an actual conflict that adversely affected counsel's performance [citation] or informed speculation with a factual basis in the record about a potential conflict that adversely affected counsel's performance [citation] and an abuse of discretion by the trial court in denying his or her motion to disqualify counsel [citation]. Since none appears here, [defendant] fails to discharge his burden on appeal." (Lopez, supra, 168 Cal.App.4th at p. 809.)
Essentially, we are in the same position as Lopez, except that an informed speculation of a conflict is no longer an acceptable method of establishing a conflict of interest. Nothing in the record suggests that trial counsel had a conflict with any of the witnesses. Instead, Gonzales asks us to presume there must be some conflict because of the prior representation. Normally, as explained in Lopez, we accept the representation of trial counsel that no conflict existed. The absence of any evidence to suggest this representation was false compels that we accept it. Gonzales has failed to establish that a conflict existed, thus compelling rejection of his argument.
Also, Gonzales has failed to present any evidence that the claimed conflict adversely affected trial counsel's performance. Indeed, Gonzales does not even address the issue, instead apparently assuming trial counsel's performance was adversely affected. We cannot find in the record any evidence to support Gonzales's assumption. Trial counsel thoroughly cross-examined every witness. Nothing in the record suggests he pulled his punches or failed to pursue a defense because of confidential information he allegedly possessed.
Finally, had Gonzales successfully established that trial counsel had a conflict of interest that adversely affected his performance, we would reject this claim because Gonzales cannot establish any prejudice as a result of the allegedly deficient performance. Gonzales urges us to apply a presumption of prejudice, but we reject such an assertion.
As our review of the cases establishes, generally, the defendant arguing his attorney was conflicted bears the burden of establishing that there is a reasonable probability he would have obtained a better result if his attorney had not had a conflict of interest. Gonzales does not argue this standard, and our review of the record does not reveal any support for such an argument had it been made.
Moreover, Gonzales cannot establish that a presumption of prejudice should be utilized in this case. A presumption of prejudice is appropriate where the defendant is denied counsel entirely or at a critical stage of the proceedings, or in some cases where trial counsel undertakes to represent more than one defendant in the same trial. (Mickens, supra, 535 U.S. at p. 166.) The Supreme Court emphasized that "only in 'circumstances of that magnitude'" will it dispense with the prejudice requirement. (Ibid.) In Doolin, the California Supreme Court agreed with this limitation on the use of the presumption of prejudice. (Doolin, supra, 45 Cal.4th at p. 418.)
Gonzales's argument does not suggest a circumstance of the magnitude similar to a defendant deprived of counsel. Nor is this a dual representation case where trial counsel was attempting to represent two defendants with conflicting defenses. Gonzales never was deprived of counsel, and nothing in the record suggests trial counsel operated under a conflict of interest or did anything (or failed to do something) in order to protect one of the witnesses his office apparently represented. All of the matters were unrelated to the charges against Gonzales. Nor is there anything in the record to suggest that trial counsel had any involvement in representing these witnesses. Finally, there is nothing to suggest that trial counsel obtained any confidences from any of the witnesses.
A presumption of prejudice will be utilized only in the most egregious of cases. While we cannot identify every situation where a defendant is entitled to a presumption of prejudice, it is clear this is not such a situation. II. Denial of Marsden Motion
As explained above, Gonzales filed a Marsden motion after the verdict in the case. In part, Gonzales asserted that he was entitled to new counsel so that a motion for new trial could be filed because trial counsel was ineffective. Gonzales argued trial counsel was ineffective because the public defender's office had represented several of the witnesses in prior proceedings. The trial court denied the motion.
Gonzales repeats his argument here, contending the trial court abused its discretion when it denied his Marsden motion because trial counsel had a conflict of interest that rendered his representation deficient. Obviously, the basis of this argument is that trial counsel was ineffective because of the claimed conflict of interest. We have rejected this contention outright in the preceding section. Accordingly, there is no basis for now concluding the trial court should have granted the Marsden motion.
III. Denial of Request to Continue the Sentencing Hearing
Gonzales's sentencing hearing occurred two weeks after Gonzales's final Marsden motion was denied. The trial court first heard Gonzales's motion to obtain juror identification information because of alleged juror misconduct. The trial court concluded there was no evidence of misconduct and denied the motion.
Once the sentencing hearing was commenced, Gonzales requested, for the first time, a continuance to allow his family to hire an attorney to file a motion for a new trial. The trial court denied the request. Gonzales argues the trial court erred in doing so.
Continuances in a criminal case may be granted only upon a showing of good cause. (§ 1050, subd. (e); People v. Frye (1998) 18 Cal.4th 894, 1012, disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) A showing of good cause requires a demonstration that both counsel and the defendant have used due diligence in their preparations. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) "The determination of whether a continuance should be granted rests within the sound discretion of the trial court." (People v. Sakarias (2000) 22 Cal.4th 596, 646.) Absent a showing of abuse of discretion and prejudice to the defendant, the denial of a motion for continuance does not require reversal. (People v. Samayoa (1997) 15 Cal.4th 795, 840.) Gonzales cannot establish either abuse of discretion or prejudice.
The trial court did not abuse its discretion because Gonzales did not establish good cause for a continuance. Gonzales asserted his family was considering hiring a new attorney to file a motion for a new trial, but this assertion came almost four months after he was found guilty. Gonzales seeks to excuse this delay because his motion came only two weeks after his final Marsden motion was denied. Yet there is no reason why the Marsden motion was not filed immediately after the verdict was rendered. Nor is there any reason why the issue was not addressed immediately after the Marsden motion was denied. Instead, the facts of this case strongly suggest that Gonzales simply was attempting to delay sentencing using every tactic at his disposal.
Also, Gonzales had not retained new counsel, but simply stated his family might do so. This equivocation establishes the lack of good cause for the motion. If Gonzales was convinced a new attorney should be retained and a motion for new trial filed, he would have made sure the new attorney was present to explain why he should be allowed to enter the case.
Gonzales attempts to insert his Sixth Amendment right to counsel of his choosing into this argument. We reject this attempt. The trial court did not refuse to permit Gonzales the right to retain counsel of his choice. As explained above, there is no indication that Gonzales had spoken with another attorney about representing him. Instead, the request was to delay sentencing to some indefinite date in the future to allow some unidentified attorney to be retained if Gonzales's family could obtain enough money to do so. There is no indication in the record that anyone had been consulted or what steps, if any, Gonzales's family had taken to obtain the necessary funds. This rather vague and untimely request was not good cause for a continuance.
Nor can Gonzales establish that he suffered any prejudice as a result of the denial of his motion. At the time of the motion, the trial was complete and the only issue was sentencing. Gonzales does not suggest that a new attorney could have altered the outcome of the sentencing hearing. Instead, he argues that a new attorney would have filed a motion for a new trial, based, once again, on the alleged conflict of interest trial counsel had because of the public defender's representation of several trial witnesses. This contention has been thoroughly addressed in this opinion and rejected. To the extent Gonzales may be suggesting that evidence not included in the appellate record could have been presented at the new trial motion, he may pursue that avenue in a writ proceeding if such evidence exists.
IV. Sentencing
The trial court sentenced Gonzales to a term of 25 years to life for the first degree murder conviction and a consecutive term of 25 years to life for the gun use enhancement pursuant to section 12022.53, subdivision (d). This sentence is consistent with the terms of the applicable statutes. Nonetheless, Gonzales argues that the trial court erred in imposing both the sentence for the crime and the sentence for the enhancement.
Gonzales concedes that his argument has been rejected by the California Supreme Court (People v. Sloan (2007) 42 Cal.4th 110, 115-123; People v. Izaguirre (2007) 42 Cal.4th 126, 130-134), and we are bound by its decisions (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455). Accordingly, we reject his argument.
DISPOSITION
The judgment is affirmed.
CORNELL, Acting P.J. WE CONCUR: DAWSON, J. DETJEN, J.