Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCTM-CRCR- 05-65785-02
McGuiness, P.J.
Appellant Richard Dean Peacock appeals from a judgment of the Mendocino County Superior Court entered after a jury found him guilty of attempted premeditated murder (Pen. Code, §§ 187, 189, 664, subd. (a) ) (count 1) with an enhancement for intentionally and personally using a firearm (§ 12022.53, subd. (a)(1)), possession of a firearm by a felon (§ 12021, subd. (a)) (count 2) and shooting at an inhabited residence (§ 246) (count 3). At a bifurcated court trial, the court found true the allegations that appellant had suffered two prior convictions that were serious felonies (§ 667, subd. (a)) and strikes (§ 1170.12), and had served a prior prison term (§ 667.5, subd. (b)). The court sentenced appellant to 71 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant asserts his conviction must be reversed because (1) the court erred in “forcing [him] to appear in chains and jail clothing before the jury” for identification purposes; (2) the court erred in denying his request for a continuance; (3) the cumulative effect of these errors deprived him of his right to due process and a fair trial; (4) there was no substantial evidence supporting the finding of one of the priors; and (5) a consecutive sentence for a violation of section 12021, subdivision (a), was error. We reject appellant’s contentions and affirm the judgment.
We have read appellant’s pro se brief filed December 20, 2007, and the issues and arguments raised therein, and find no basis on which to reverse. (See People v. Clark (1992) 3 Cal.4th 41, 173.)
I. Factual and Procedural Background
On August 8, 2005, an information was filed, charging appellant with attempted premeditated murder of Alan Simon while personally and intentionally using a firearm, possession of a firearm by a felon, and shooting at an inhabited dwelling. The information also alleged that appellant had suffered two prior robbery convictions that were serious felonies and strikes, and had served a prior prison term for his conviction for assault with a deadly weapon.
On May 30, 2006, the date set for trial, appellant requested a continuance, stating he needed more time to review documents. The court denied the request, noting appellant was represented by an attorney who was ready to proceed. Appellant asked for a break to use the bathroom, and the court granted his request. Shortly thereafter, a security officer stated that appellant was refusing to return to the courtroom. The court considered having appellant brought to the courtroom in order to advise him of his right to be present and inform him of the court’s intent to proceed with trial. Appellant’s attorney responded, “I’d rather the court not forcibly bring him up because I think he would put up a big fight, it wouldn’t be in the public interest or safety, or in his best interest. I have a feeling he would have to be tazed or something else.” The court called a recess to provide appellant’s attorney an opportunity to speak to appellant.
After the break, appellant’s attorney stated that appellant had said he was “on the verge of snapping,” and she expressed doubt as to whether appellant was mentally competent to participate in his defense. She requested a competency hearing under section 1368. The prosecutor objected, stating appellant was rational when explaining why he wanted a continuance, and that he was “trying to blackmail the court” by acting “irrationally” because he “didn’t get his way.” The court stated it was required to hold a competency hearing under the statute, suspended the criminal proceedings, and ordered that two doctors be appointed to evaluate appellant’s competency.
Section 1368 provides that “[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing” (§ 1368, subd. (b)) and “all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.” (Id., subd. (c).)
At the competency hearing, appellant’s attorney stated she was prepared to submit on the reports of the doctors who concluded appellant was competent. Appellant requested a jury trial on the issue of his competency, and asked that a new attorney be appointed for him under People v. Marsden (1970) 2 Cal.3d 118. He reiterated that he needed more time to prepare for trial, and requested a continuance, which the court denied. After a Marsden hearing, the court denied appellant’s request for a new attorney, finding he was receiving “excellent representation.” Appellant withdrew his request for a jury trial on the issue of his competency, and the court reinstated the criminal proceedings. The court set a trial date of August 28, 2006, and ordered the parties to return on August 25, 2006, for a pretrial conference and in limine motions.
On August 25, 2006, appellant’s attorney requested a continuance of the trial, asserting she was looking for Brandon Martin, a defense witness whose testimony she believed was necessary to impeach Kenneth Brown, a witness for the prosecution who had recently been located. The court denied the request, noting there was no indication as to how long it was going to take to locate Martin. The court stated: “Also, if I continue it, . . . I don’t know who is next in this chain of witnesses who’s not going to be available and on and on it goes. [¶] Mr. Peacock has been sitting in the county jail for, what, a year now? His trial needs to go forward. [¶] . . . [¶] . . . The victim has a right to some closure. He’s out of state. This is at least, what, the third time it’s come up for trial? [¶] . . . [¶] Meantime, keep working on getting Mr. Martin. [¶] Trial’s going to last two weeks too . . . I’ll even authorize . . . an additional investigator if you want to search for him while you’re working in the courtroom.”
Before jury selection, appellant stated he wanted to represent himself. When the court informed appellant that the motion was untimely and was going to be denied, appellant responded, “Then I don’t want to participate in this trial. This is nothing . . . but a sham.” The court asked appellant to sit down, and appellant responded, “No. That’s not what’s going to happen.” The court asked appellant for an agreement not to disrupt the proceedings, and appellant responded, “I am going to voice my opinion.” Appellant requested a continuance, which the court denied. Appellant’s attorney asked for a continuance on the basis that she had not yet been able to locate Martin, but indicated that because the court had already denied her request, she was ready to proceed.
Appellant then stated, “I’ve got another move. I’m going to walk out that door after you say I can represent myself and let you guys have the trial by yourself. That’s what I will do. [¶] . . . [¶] If you relieve [my attorney], I’m walking out the door and then you guys can have your trial. I’ll let you explain that to the appellate courts.” After another break, the court asked appellant if he still wished to represent himself. Appellant responded: “Your Honor, to answer that is going to be a very dangerous one because I don’t know how the appellate courts are going to view this.” He stated he was going to allow his attorney to represent him but he was not going to participate in the trial. “I want to be taken to the county jail. I don’t care what [the court is] saying. . . . I’m done.” The bailiff said, “Don’t get in my face or I’m telling you, we’re going to have problems,” and appellant responded: “I’m telling you—I understand we’re going to have problems. [¶] . . . [¶] I want to leave right now. I don’t want to hear nothing [the court has] got to say. [¶] I’m leaving. I don’t give a fuck what you say.” As the court began to tell appellant that he could return to the courtroom if he changed his mind, appellant stated, “I don’t. Don’t stall. . . . I don’t want to listen to your shit.” Appellant’s counsel asked that appellant be reevaluated under section 1368. The court denied the request and found appellant had voluntarily absented himself from the proceedings.
Before the victim testified at trial, and outside the presence of the jury, the court stated: “I have had conflicting information on whether Mr. Peacock will appear. The latest version is he will not. He is in the holding cell downstairs, will not change into civilian clothes, . . . . So what I want to do is bring the jury in and start [the victim’s] testimony and . . . get Mr. Peacock up here to have the identification portion of the testimony and then if he wants to stay he can stay. If he wants to leave, he can leave.” Appellant’s counsel objected, stating appellant could be sufficiently identified with the use of photographs, which better represent how appellant looked in June 2005, and that forcing him to appear would be “very prejudicial” to him. She stated she was willing to stipulate that the man depicted in the photograph selected by the victim was appellant. The prosecutor responded that identification was “the contested issue” in the case, and that the jury should be allowed to see the victim identify appellant.
The court agreed with the prosecutor, stating there is “nothing that can substitute for the witness under oath pointing at the defendant and identifying him in front of the jury. [¶] There’s some element of prejudice, yes, but I think that the jury can be admonished not to consider that. I know to some extent that’s not effective, but any other ruling would just simply allow recalcitrant or obstreperous defendants to run the courtrooms in this country . . . . I think I have to balance fairness to all parties.” The court considered having appellant enter the courtroom before the jury entered, but because of the potential difficulty of having to hold him in the courtroom for ten minutes while the jury was being called back, the court allowed the jury into the courtroom first.
The court instructed the jury that appellant’s absence at trial was not to be considered as evidence against him. The court also informed the jury that it was going to bring appellant into the courtroom for identification purposes and warned that appellant might not “behave like you or I would want him to behave.” The court emphasized that appellant’s behavior was not to be considered as evidence of the truth of the charges against him.
According to a certified settled statement on appeal, which sets forth how appellant was brought into the courtroom, appellant “ ‘went limp’ and was forcibly carried into court by two uniformed court security officers, one on each side, with at least one additional officer following. He was dressed in a red jail jumpsuit, with a visible chain around his waist (a ‘belly chain’), handcuffs attached to the belly-chain in front, and visible leg shackles. He was actively bleeding from injuries to his wrists caused by the handcuffs. [Appellant] was also breathing heavily as he was brought into the courtroom.”
The Trial
The victim, Alan Simon, testified that on June 17, 2005, he was alone at his house in Westport, California, when he heard an “aggressive,” “loud banging” on his front door and someone yelling, “Where’s Kathy? I’m looking for Kathy.” He responded through the door, “There’s no one named Kathy here. I want you to leave my property,” and told the person outside that he was going to call the police. Simon looked through a window to see who was outside, and saw a white man wearing a dark windbreaker and a baseball cap.
Simon called 911, and when the dispatch operator asked him what the man outside was doing, Simon opened his front door and saw the man leaning against a white sports car that had a black top and a damaged left front fender. Simon told the man that he had called the police, and asked him to leave. The man said, “Hey, I don’t want any trouble.” As Simon responded, “Neither do I,” the man took out a gun and shot at Simon nine times. Simon closed the door as quickly as he could, turned the dead bolt and got down on the ground. Two of the bullets hit him – one on the top of his head, and another on his right wrist. The 911 tape was played for the jury.
Simon testified that a law enforcement officer eventually arrived at his home and asked for a description of the man who had shot him. Simon told the officer that the shooter was a white male adult with a goatee, appeared to be in his 30’s, and was wearing a dark jacket and a baseball cap. Several days later, a detective showed Simon 12 black and white photographs of potential suspects. Simon asked to see the photographs in color, and after reviewing the color photographs, identified appellant as the man who had shot him. Simon also identified appellant in court as the man who had shot him.
Appellant is in his 50’s.
Simon testified that when he moved to Westport, a man named Kenny Rogers was chairman of the county water district. There was an election to recall Rogers, and Simon ran against Rogers and won. After Simon won the election and replaced Rogers as chairman, Simon received a call from Rogers, who threatened him over the phone.
During a break, and outside the presence of the jury, appellant stated he wished to participate in the trial. The court asked appellant if he wanted to change into civilian clothes, and appellant responded he did not, stating, “I want the people to . . . see how I am. See, there’s two victims in this case. [¶] . . . [¶] There’s 14 months I spent over there in isolation waiting for this day in court.” A concealed leg brace was placed on appellant for the remainder of the trial.
Zachary Lane testified he had known Rogers for about 11 years and was involved in Rogers’ marijuana growing business. Rogers always spoke negatively of Simon or made threats against Simon. Rogers also “bragged about having the power to get people hurt if he wanted them hurt,” and said he wanted to see Simon get hurt. According to Lane, Rogers said that appellant “owed [Rogers] his life,” and that appellant and appellant’s brother, Michael, would do anything for Rogers.
Matthew Kendall, a patrol sergeant for the Mendocino County Sheriff’s Office, testified that on June 17, 2005, he heard a dispatch report regarding a white Mazda Miata with a black top and front end damage. As he was driving, a Miata that matched the description drove past him in the opposite direction. Kendall turned his vehicle around and gave chase, but was unable to keep the Miata in his sight. On the evening of June 18, 2005, Jason Cox, a deputy sheriff, spotted the Miata, which was following a Toyota 4Runner. After the Miata passed the 4Runner and accelerated quickly, Cox observed a CHP car pursuing the Miata.
The CHP officer, Mark McNelley, testified that the Miata accelerated up to 60 miles per hour in a 25-miles-per-hour zone. As McNelley chased the Miata, he saw the driver throw a white plastic bag out of the passenger window. McNelley noted the spot where the bag had landed, and continued his pursuit. The Miata then abruptly pulled over and parked in a parking lot. McNelley pulled in behind the Miata and was getting out of the car when Cox pulled up and joined him. Cox ordered the driver, appellant, out of the car. After appellant was arrested, McNelley drove back to the spot where appellant had thrown out the bag and found a Ruger .22-caliber semiautomatic handgun in the bag. The gun had a clip capable of holding ten rounds, and only one round remained. Ballistics testing confirmed the gun was the one that had been used to fire nine shots at Simon.
The parties stipulated that the gun was previously owned by a friend of Rogers’s named Velma Bowen and that the gun had disappeared from Bowen’s house in 1999, around the time Rogers and his family stayed at her house.
Kenneth Brown, a convicted felon, testified that he met appellant in jail while serving a 52-day sentence. Brown testified that when he was outside of his cell along with other general population inmates, appellant waved Brown over from inside his cell. Appellant told Brown he “was looking at losing the rest of his life and needed help.” According to Brown, appellant said he was in jail because a man named Rogers hired him to “get somebody out of the way.” Appellant told Brown that Rogers had lost his position with the water district and wanted to “get this other gentleman out of the way” so he could “get [his position] back.”
Brown testified that appellant gave him a false affidavit stating that Brown was sitting in the back seat of a Ford Explorer behind a man named Moir, who threw a white plastic bag out of the Explorer’s passenger window. Appellant offered Brown $50,000 and a new Harley Davidson to sign his name to the affidavit, but Brown refused because another felony conviction “would be . . . an automatic 25 to life.” When he told appellant that he was not interested, appellant said “not a problem,” and took back the paperwork. The morning Brown was released, appellant handed him a stamped, addressed envelope and asked him to mail it after his release. Brown held on to the letter for a few days and was debating whether he should mail it, when he was contacted by investigators from the sheriff’s office who said they wanted to speak to him about his interactions with appellant. Brown testified that he thought appellant gave the letter to him to mail so that it would not have to go through the jail’s mail screening process. On cross-examination, Brown denied having an acrimonious relationship with appellant, and also denied telling another inmate named Brandon Martin that he was angry at appellant and was “going to get [appellant].”
The envelope contained a letter from appellant to his brother, Michael.
Outside the presence of the jury, appellant’s attorney requested that Brown’s testimony be stricken because she had not been able to locate Martin, who would be able to refute Brown’s testimony. She also asked for more time to locate Martin. The court denied the motion to strike Brown’s testimony and denied the request for a continuance.
Appellant testified that on June 17, 2005, he was living in Sacramento, California, in a business trailer owned by Rogers, who was his friend. Appellant had been paroled from prison on March 26, 2005, and Rogers allowed him to stay at the trailer so appellant would have a place to live. He testified that on the morning of June 17, 2005, Rogers called to ask him to drive to Mendocino County to pick up ten pounds of marijuana. Appellant borrowed a friend’s convertible and drove to meet with Rogers. Once he arrived, he gave the car key to his brother, Michael, who was also at Rogers’ property. Michael and another man, Eric Moir, drove the car away to load it with marijuana.
Appellant testified that Michael and Moir were gone for a long time, and that Moir returned by himself, rushed out of the car, and told appellant that the “cops are coming.” Appellant hid the car in the bushes and slept in it that night. The next morning, appellant headed home in the Miata and was driving behind Moir’s Toyota 4Runner, when he observed police cars behind him. Appellant testified he saw two bags being tossed out of Moir’s car. Appellant sped away because he was afraid of being arrested for violating a condition of probation, which required him to obtain a permit to travel away from his residence. When he realized that a high-speed chase may cause injury to someone, he drove into a parking lot, parked his car, and was arrested.
Appellant refuted Brown’s testimony by testifying that Brown was angry at him because of an exchange that occurred between them in which Brown gave appellant dirty looks, appellant called Brown “bad names,” and the two threatened each other. Appellant testified that Brown knew about his case because appellant had shown some papers relating to his case to a man named Sharp, who showed the papers to Brown. At some point, appellant noticed that an affidavit he had drafted was missing from his jail cell. He later learned that Sharp had the affidavit. Appellant believed Brown and Sharp together “cook[ed] up” a lie about him asking Brown to sign a false affidavit. Appellant testified that he drafted an affidavit for his brother Michael, not Brown, to sign.
Appellant explained why he initially refused to participate in the trial, stating it was not because he was afraid that Simon would identify him as the shooter. He stated he was exercising his right not to participate in an unfair trial because the court had not allowed him to bring in a witness to refute Brown’s testimony, and the jury was not being allowed to hear all the evidence.
The jury convicted appellant of all counts, found the attempted murder was committed with deliberation and premeditation and found the firearm allegation to be true. The court denied appellant’s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike one of the strikes, and sentenced appellant to 25 years to life for attempted murder, plus 10 years for the firearm enhancement and 25 years to life to be served consecutively for possession of a firearm by a felon. It stayed the sentence for shooting at an inhabited residence, and imposed five years for each of the two prior convictions alleged under section 667, subdivision (a), and one year for the prior prison term alleged under section 667.5, subdivision (b). The court ordered appellant to pay a $10,000 restitution fine and stayed a $10,000 parole revocation fine. Appellant filed a timely notice of appeal.
II. Discussion
A. The court did not err in “forcing appellant to appear in chains and jail
clothing before the jury.”
Appellant contends the court erred in “forcing [him] to appear in chains and jail clothing before the jury” for identification purposes. We reject his contention for the following reasons.
“[A] criminal defendant accused of a felony has the right to be present at every critical stage of the trial.” (People v. Frye (1998) 18 Cal.4th 894, 1010 (Frye), citing Illinois v. Allen (1970) 397 U.S. 337, 338.) “A defendant may waive the constitutional right to be present [citations], or can lose the right to be present through disruptive behavior in the courtroom [citations]. However, . . . these qualifications to the right to be present do not confer an affirmative right to be absent from trial. Nor are we aware of any decision recognizing a concomitant right of the defendant not to be present or to otherwise avoid being confronted with the witnesses against him. [Citations.]” (Id. at pp. 1010-1011.) Further, a defendant’s absence from the courtroom does not affect “the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity.” (§ 1043; see also People v. Yonko (1987) 196 Cal.App.3d 1005, 1008 [“Ordinarily, a criminal defendant can be required to be present in the courtroom for the purpose of identification”]).)
In Frye, supra, 18 Cal.4th at pages 1009-1010, the defendant claimed that the trial court’s denial of his request to absent himself from the proceedings “compromised the fundamental fairness of the proceeding and the reliability of the death verdict,” where his presence at trial posed the risk of an uncontrollable emotional outburst in front of the jury, and in fact led to an angry outburst. The Supreme Court rejected the defendant’s argument, concluding that a defendant has no affirmative right to absent himself from the proceedings, and that “it was not the trial court’s ruling, but defendant’s own actions that led to his asserted outburst at the jury.” (Id. at p. 1011.) The Court stated: “Both a jury and the trial court had determined defendant was competent to stand trial, and the record discloses sufficient evidence supporting that finding. . . . [T]he record [does not] suggest that the substance of defendant’s [actions] so threatened the dignity and order of the proceedings that, as a matter of law, defendant should have been removed from the proceedings. [Citations.] Under these circumstances, it is appropriate to place on the defendant, rather than the court, the burden of conducting himself at trial in a manner which comports with his best interests.” (Id. at p. 1011.)
Here, in objecting to an in-court identification, appellant’s attorney stated she was willing to stipulate that appellant was the man depicted in the photograph that Simon selected shortly after the shooting. However, she was understandably not willing to stipulate that appellant was the man who shot Simon, as identity was the contested issue in the case, i.e., appellant’s defense was that Simon had mistakenly identified him as the shooter. Thus, appellant’s attorney did not stipulate to the issue of identity, and under section 1043, the court had the affirmative right “to order [appellant] to be personally present at the trial for purposes of identification.” In requiring appellant to appear, the court did not, as appellant asserts, “favor[] the prosecution’s interest [in having Simon identify appellant in court] over appellant’s fundamental rights,” because appellant did not have a fundamental right to absent himself from trial. (See Frye, supra, 18 Cal.4th at p. 1011.)
Moreover, appellant asserts the court violated his right to due process and a fair trial by “forcing” him to appear before the jury in chains and jail clothing. However, as in Frye, appellant was found to be competent to stand trial under section 1368, and it was up to him to “conduct[] himself at trial in a manner which comports with his best interests.” (Frye, supra, 18 Cal.4th at p. 1011.) The court did not “force” appellant to appear in chains and jail clothing; it was appellant’s own actions that led him to appear before the jury in the way that he did.
Appellant first complains the trial court should not have shackled him. However, the record shows there was a “manifest need” to restrain appellant, who was disruptive and confrontational throughout most of the pre-trial proceedings, and at the beginning of the trial. (See People v. Cox (1991) 53 Cal.3d 618, 651 [courts may restrain a defendant during a jury trial where there is a “manifest need” to do so, which arises upon a showing of unruliness or evidence of planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained].) On the day originally scheduled for trial, appellant’s attorney warned that appellant was likely to “put up a big fight” or “would have to be tazed” if the court ordered him to return to the courtroom, and that it would not “be in the public interest or safety” to do so. She later stated that appellant was “on the verge of snapping,” and doubted whether he was competent to stand trial. On another occasion, appellant was hostile and argued with the court, continuing to speak after being instructed to speak only through his attorney. He threatened to leave the courtroom when he did not get his way, refused to sit down or agree not to disrupt the proceedings, and at one point, insisted on immediately leaving the courtroom, which resulted in his having a verbal confrontation with the bailiff. He used profanity, stating he did not “give a fuck” what the court had to say, and did not want to “listen to your shit.” The court expressed concern about the “risk of injury to the police officers,” and appellant’s attorney stated appellant would be “very, very hostile” if “shackled and dragged down” into the courtroom. The bailiff noted it would “probably [take] quite a few” officers to bring appellant in. The court did not abuse its discretion in ordering that appellant be shackled.
The decision to shackle a defendant “ ‘cannot be successfully challenged on review except on a showing of a manifest abuse of discretion.’ ” (People v. Medina (1995) 11 Cal.4th 694, 731, quoting People v. Duran (1976) 16 Cal.3d 282, 293, fn. 12.)
Appellant also complains that he was in jail clothing when he was brought into the courtroom. However, the record shows the court gave appellant every opportunity to appear in civilian clothes. Before Simon was called to the stand, and out of the presence of the jury, the court noted that appellant would not “change into civilian clothes.” After appellant decided to participate in the trial, the court asked him whether he wanted to change out of his jail clothes, but appellant responded he did not wish to do so because he wanted the jury to see that he was a “victim” who was required to spend 14 months in jail, waiting for his day in court.
Further, appellant contends that the use of “physical force to display [him] to [Simon] in front of the jury deprived [him] of his right to due process. Rochin v. California (1952) 342 U.S. 165 (Rochin), on which he relies, however, does not support his position. There, three deputy sheriffs entered the defendant’s residence without a warrant, and when they saw the defendant grab two capsules from his night stand and put them in his mouth, they jumped on the defendant and attempted to retrieve the capsules. (Id. at p. 166.) When they were unsuccessful, they forcibly took the defendant to the hospital and had his stomach pumped against his will. (Ibid.) The court reversed the judgment of conviction, concluding that the capsules, which contained morphine and constituted the “chief evidence against” the defendant, were “obtained by methods that offend the Due Process Clause.” (Id. at pp. 166, 174.) The Supreme Court later explained that it “set aside conviction [in Rochin] because [the] conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and decency.” (Breithaupt v. Abram (1957) 352 U.S. 432, 435.)
We need not address the applicability of another case on which appellant relies, People v. Herndon (2007) 149 Cal.App.4th 274, to this case, as it has been ordered depublished by the California Supreme Court and is not citable authority. (People v. Herndon, S152468, review denied and depublication ordered July 11, 2007.)
In contrast, appellant was properly in the custody of the bailiffs pursuant to the court’s lawful order requiring him to appear in court for identification purposes. The record does not show the bailiffs initiated violence against appellant or acted illegally or brutally in a way that “shock[s] the conscience.” In fact, appellant’s actions in court suggest he was bleeding and breathing heavily because he fought the guards in an attempt to subvert the court’s order requiring him to be present for identification purposes. Thus, it was appellant’s voluntary acts that caused him to appear before the jury in the manner that he did, and he “may not be heard to complain when . . . [any] prejudice . . . he may have suffered resulted from his own voluntary act.” (See People v. Hendricks (1988) 44 Cal.3d 635, 643.)
Appellant also asserts the court should have ordered the use of photographs to identify him and/or should have instructed the jury with CALJIC No. 2.06, which provides in part, “If you find that a defendant attempted to suppress evidence against himself in any manner, such as refusing to participate in the lineup, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt.” However, as the trial court noted, “[t]here’s nothing that can substitute for the witness under oath pointing at the defendant and identifying him in front of the jury.” Appellant asserts the photographs better represented what he looked like on the day Simon was shot because his appearance had changed by the time the trial took place, but it was for the jury to observe any changes and to determine the strength or weakness of the in-court identification. (See People v. Lindsay (1964) 227 Cal.App.2d 482, 493-494 [the strength or weakness of the identification is a matter that goes to the weight of the evidence and is for the jury’s observation and consideration].)
Further, although courts have used photographs for identification purposes where a defendant has fled and cannot be located (see People v. Yonko, supra, 196 Cal.App.3d at p. 1009), here, appellant was available and refused to appear in order to make things difficult for the court, as reflected by the following statement he made to the court: “I’ve got another move. I’m going to walk out that door . . . and let you guys have the trial by yourself. That’s what I will do.” “If you relieve [my attorney], I’m walking out the door and then you guys can have your trial. I’ll let you explain that to the appellate courts.” The court properly noted that to allow appellant not to appear under these circumstances “would just simply allow recalcitrant or obstreperous defendants to run the courtrooms.” (See Illinois v. Allen, supra, 397 U.S. at p. 345 [“[a] court must guard against allowing a defendant to profit from his own wrong”].)
Finally, even assuming the court erred in ordering appellant to appear before the jury for identification purposes, any error was harmless under any standard because the evidence in this case overwhelmingly established appellant’s guilt. Simon reviewed photographs a few days after he was shot and identified appellant as the shooter. Appellant fled from officers at a high speed, and McNelley observed appellant throw away the gun that was used to commit the crime. There was evidence of appellant’s motive in shooting Simon, as Lane testified that Rogers wanted to hurt Simon, that appellant “owed” Rogers, and would do “anything” for Rogers. Brown testified that appellant asked him to sign a false affidavit after telling him he was in jail because Rogers had hired him to “get [Simon] out of the way.” Any error was harmless.
B. The court did not err in denying appellant’s request for a continuance.
Appellant contends the trial court abused its discretion and violated his right to due process by denying his request for a continuance. We disagree.
A continuance will be granted for good cause (§ 1050, subd. (e)), and the trial court has broad discretion to grant or deny the request. (People v. Grant (1988) 45 Cal.3d 829, 844.) “In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request.” (Frye, supra, 18 Cal.4th at p. 1013.) One factor to consider is whether a continuance would be useful. (People v. Beeler (1995) 9 Cal.4th 953, 1003 [“to demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time”].) The trial court must consider not only the benefit that the moving party anticipates, but also the likelihood that the benefit will result, the burden on other witnesses, jurors and the court, and whether substantial justice will be accomplished by granting a continuance. (People v. Laursen (1972) 8 Cal.3d 192, 204.) The burden is on the defendant to establish error. (People v. Beeler, supra, 9 Cal.4th at p. 1003.) “ ‘[A]n order of denial is seldom successfully attacked.’ [Citation.].” (Ibid.)
The trial court did not err in denying appellant’s request for a continuance because it was speculative whether Martin could be secured as a witness within a reasonable period of time. Appellant’s attorney stated, “[Martin] can rebut that evidence substantially. It’s just that I can’t get him, but it’s not like we will never be able to get him.” She stated there was a “reasonable opportunity” to find him because he was on felony probation, but admitted she had not located him, despite having looked for him since “the beginning of the first trial [May 30, 2006].” She stated the defense had spoken to Martin’s father, who agreed to tell Martin to contact the defense, but Martin had not done so. The only thing she knew about Martin’s location was that he was most likely at “a very large location in a rural area of Willits [in Mendocino County] where persons are known to hide out.” When appellant’s attorney renewed her request for a continuance during trial, she stated she had learned that Martin was living in Oregon in hiding. Martin had spoken to a defense investigator using an untraceable cell phone, but refused to disclose his exact location and indicated he would not return to California to testify because there was a warrant out for his arrest.
Appellant asserts that “it should have been clear to the parties” that Martin’s testimony could have been obtained through the use of procedures set forth in the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, section 1334 et seq., which would have provided “the additional advantage of gaining Martin’s cooperation because during the time he was in California as a witness, he would be immune from arrest.” However, appellant did not present this argument below, and has not shown how the use of these procedures would have secured Martin’s attendance at trial within a reasonable period of time.
Further, the court properly considered other factors, including the fact that the trial had been previously continued, it had been over one year since appellant was arrested, other witnesses were present and ready to testify, and the victim had traveled from out of state and had a right to closure. (See § 1050, subd. (a) [continuances lead to congested courts and jails, hardship to victims and other witnesses and longer periods of confinement for defendants], subd. (g)(1) [court shall consider convenience and prior commitments of all witnesses, including peace officers].)
Finally, substantial justice was served. Appellant testified regarding his acrimonious relationship with Brown and thoroughly explained how Brown and Sharp “cook[ed] up this goddamn lie together.” Further, there was evidence that Martin would not have been able to refute much of Brown’s testimony because, according to a statement prepared by an investigator for the defense, Martin had no first hand knowledge of what documents appellant may have shown or given to Brown, or what statements appellant may have made to Brown regarding appellant’s case. Martin’s testimony would not have undermined the fact that Brown never sought out the authorities to exact revenge, but rather was approached by the authorities after his release and was given no benefits for his testimony. His testimony also would not have affected the direct evidence linking appellant to the crime, including Simon’s identification of appellant and his car and McNelley’s observation of appellant discarding the attempted murder weapon while fleeing from the authorities at a high speed. There was no error.
C. There was no cumulative error.
A series of errors, though independently harmless, may in some circumstances rise to the level of reversible and prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844.) However, in light of our conclusion that none of appellant’s claims of error, considered separately, has merit, we reject his contention that cumulative error requires reversal. (See People v. Samayoa (1997) 15 Cal.4th 795, 849.) Further, even if some improprieties occurred, any errors were harmless, considered individually or collectively, and did not deny appellant a fair trial or a reliable verdict. (See People v. Carpenter (1997) 15 Cal.4th 312, 421 [no reasonable possibility that any error, even in cumulation, affected the verdict].)
D. Substantial evidence supports the finding of appellant’s 1970 prior.
Appellant asserts that his 1970 prior for a robbery conviction must be stricken because the evidence to prove the prior was insufficient as a matter of law. The record shows the prosecutor presented the following documents to the court in order to prove the 1970 prior: (1) abstract of judgment for a 1975 robbery conviction reflecting a prior felony conviction for robbery in 1970; (2) the clerk’s minutes, information and verdict forms from the 1975 robbery trial showing the jury found true the 1970 prior conviction; and (3) a plea form for appellant’s 1998 assault with a deadly weapon conviction in which appellant admitted two prior serious felonies (1970 and 1975 robberies). Appellant claims that the use of documents relating to his 1975 and 1988 convictions to prove the 1970 prior was improper because these documents were not part of the “record of conviction” of the 1970 prior, and were therefore inadmissible.
Appellant relies on People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero), which held that a court may consider only the “record of conviction” in determining the truth of a prior conviction. However, the Supreme Court limited Guerrero in People v. Martinez (2000) 22 Cal.4th 106 (Martinez), concluding: “Although Guerrero contains language arguably suggesting its evidentiary limitations apply to proof of all issues related to “the truth of a prior-conviction allegation” [citation], a close reading of the decision demonstrates its scope is not so sweeping. As our discussion shows, the only question at issue in Guerrero . . . was the permissible scope of proof to establish the substance of a prior conviction, i.e., the nature and circumstances of the underlying conduct. [Guerrero did not] consider[] matters of proof relating to other aspects of a prior conviction, such as the identity of the defendant or service of a prior prison term. Cases are not authority for propositions they do not consider. [Citation.] . . . [Guerrero’s] limitations apply only to proof of ‘the circumstances of the prior crime.’ [Citation.]” (Martinez, supra, 22 Cal.4th at pp. 117-118.)
Thus, under Martinez, the fact finder is restricted to a review of the “record of conviction” only when determining the substance of the underlying conduct of a prior conviction, not the fact that the defendant suffered the prior conviction. “ ‘Provided that other types of evidence (e.g., other official records) satisfy applicable rules for admissibility, they may be relied on to establish a prior conviction.’ ” (Martinez, supra, 22 Cal.4th at p. 115, quoting People v. Dunlap (1993) 18 Cal.App.4th 1468, 1476.)
Here, the only issue was whether appellant had suffered the 1970 prior; the nature or substance of the prior conviction was not at issue. Thus, the prosecution was entitled to introduce any relevant, admissible evidence to prove that appellant suffered the prior 1970 robbery conviction, and was not limited solely to the record for that conviction. It is undisputed that the court records pertaining to appellant’s 1975 and 1998 convictions were admissible as certified court records, and appellant does not dispute that those records show he suffered a robbery conviction in 1970, which constitutes a serious felony conviction within the meaning of the three strikes law. (See § 1192.7, subd. (c)(19).) Sufficient evidence supports the trial court’s finding of appellant’s 1970 prior.
Having held there is sufficient evidence to support the trial court’s finding of the 1970 prior, we need not address appellant’s argument that a prior conviction or strike allegation may not be retried “following reversal for lack of substantial evidence to support an element of the strike or prior conviction allegation.”
E. The trial court did not err in imposing a consecutive sentence for the convictions for attempted murder and felon in possession of a firearm.
Appellant asserts the trial court erred in imposing a consecutive sentence for the convictions for attempted murder and possession of a firearm by a felon, because his possession of the firearm was incidental to his use of the firearm to attempt to kill Simon. We disagree.
Section 654, subdivision (a), provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “Section 654 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ [Citations.] However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones)). The applicability of section 654 is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its finding will not be reversed on appeal if there is any substantial evidence to support it. (Ibid.)
In Jones, the defendant and an unidentified man drove to the victim’s house with defendant in the passenger seat. After a few minutes they left and returned approximately 15 minutes later, again with defendant in the passenger seat. Defendant then fired several gunshots at the house. (Jones, supra, 103 Cal.App.4th at pp. 1141-1142, 1147.) Distinguishing its facts from those in People v. Bradford (1976) 17 Cal.3d 8, and People v. Venegas (1970) 10 Cal.App.3d 814, in which “fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense,” (Jones, supra, 103 Cal.App.3d at p. 1144), Jones concluded “the evidence was sufficient to allow the inference that [the defendant’s] possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling.” (Id. at p. 1147.) Jones held that “section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (Id. at p. 1145.)
In People v. Bradford, supra, 17 Cal.3d at p. 13, the defendant wrestled away a revolver from an officer and shot at him, after being stopped by the officer for speeding. Multiple punishment was improper because the defendant’s possession of the revolver was not separate from the use of the revolver in assaulting the officer. (Id. at pp. 22-23.) In People v. Venegas, supra, 10 Cal.App.3d at pp. 819-820, 821, multiple punishment was improper because there was no evidence showing the defendant possessed a gun before the shooting, and the defense presented evidence suggesting the defendant obtained the gun during a struggle at the bar moments before the shooting. Venegas held: “Not only was the possession physically simultaneous, but the possession was incidental to only one objective, namely to shoot [the victim].” (Id. at p. 821.)
Jones cited People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff) with approval. In Ratcliff, the court reasoned that the defendant’s possession of the gun 30 minutes after he committed “two robberies separated in time by about an hour and a half” (id. at p. 1413) was sufficient to permit multiple punishments because “[a] violation of section 12021, subdivision (a) is a relatively simple crime to commit: an ex-felon who owns, possesses, or has custody or control of a firearm commits a felony. Implicitly, the crime is committed the instant the felon in any way has a firearm within his control.” (Ratcliff, supra, 223 Cal.App.3d at p. 1410, fn. omitted.)
Jones and Ratcliff apply to appellant’s case. First, as in Jones, there was no evidence that “ ‘fortuitous circumstances put the firearm in [appellant’s] hand only at the instant of committing another offense.’ ” (See Jones, supra, 103 Cal.App.4th at p. 1144.) The jury could reasonably have concluded appellant obtained the firearm from Rogers at some point before driving to Simon’s house. (Ante, fn. 1.) The evidence supported a finding that appellant arrived at Simon’s house with a firearm, thus committing the crime of being a felon in possession of a firearm, and then committed the separate crime of attempted murder. Second, as in Ratcliff, the evidence showed that appellant continued to possess the firearm after leaving Simon’s house. He also had the firearm in his possession the following day, on June 18, 2005, when he threw it out of the passenger window of his car as he sped away from the police. Thus, the evidence also supported a finding that appellant committed the separate crime of possessing a firearm after he committed attempted murder. The trial court did not err in imposing a consecutive sentence for the convictions for attempted murder and possession of a firearm by a felon.
III. Disposition
The judgment is affirmed.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.