(Alameda County Super. Ct. No. H38057)
The opinion of the court was delivered by: McGuiness, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Adam Lance Bieneman (appellant) appeals from a judgment entered after a jury convicted him of assault with a firearm (Pen. Code, § 245, subd. (a)(2)*fn1 ), possession of a controlled substance (methamphetamine) with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)). He contends: (1) his trial counsel was ineffective; (2) the trial court erred in denying his requests for a continuance of the trial; (3) the trial court erred in denying his motion for a new trial; and (4) the trial court violated his due process rights by denying his motion to dismiss the case on the ground the prosecution destroyed potentially exculpatory evidence. We reject the contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A second amended information filed on March 27, 2007, charged appellant with shooting at an occupied motor vehicle (§ 246, count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), possession of a controlled substance (methamphetamine) with a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 3), and possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a), count 4). The information further alleged as to counts 1 and 2 that appellant personally used a firearm (§ 12022.5, subd. (a)).
On Tuesday, October 14, 2008, the date set for a jury trial, defense counsel appeared in the master calendar department, Department 513, and orally requested a continuance on the ground he was unprepared for trial because he had failed to calendar it. He stated he had been in trial in another county and had not prepared for trial in this case "at all, or even known trial was due to begin until the prosecutor had called him over the weekend to ask if he was ready." He had not subpoenaed witnesses, prepared visual aids or prepared his client to testify, and was not prepared to cross-examine prosecution witnesses because he had not reviewed the preliminary hearing transcripts. He had also been unable to review the case file over the weekend because his assistant had the file and did not return it until that morning. The court noted the original complaint in the case was filed in December 2003. Defense counsel responded he had not been involved in the case until 2007 and that two of the three prior continuances were granted because the district attorney failed to provide required discovery. The court denied the motion and assigned the case to Department 511 for trial. Defense counsel asked if he could "re-present" his motion in the trial department, and the court responded, "Sure."
On October 15, defense counsel filed a written motion for a continuance in Department 511. He attached a declaration reiterating the statements he made in Department 513 and adding that he had never made such a significant calendaring error in the 39 years he had practiced law. He also declared he entered the case in 2007, "long after the preliminary hearings" had taken place. The judge in Department 511 (the trial judge) stated he had spoken with the judge in Department 513 and that "basically what I learned from him is, he denied the motion to continue . . . and assigned the case to trial." The trial judge stated he had read the motion and defense counsel's declaration but was not going to entertain the motion because the other judge had ruled on it in Department 513, "which is the appropriate place for a motion to continue the trial." Defense counsel explained he had made only an oral motion to continue in Department 513, then proceeded to argue the motion. The trial judge then stated, "Let me just outline for you what I think is a realistic schedule. I'm willing to take a break--well, number one, I'm willing to schedule the in limine motions regarding the defendant's statements for tomorrow morning. Bring in a jury panel Monday morning to commence jury selection. Basically, it ends up being a week's continuance at least. [¶] . . . [¶] It gives you time to work on the case. . . . I'm not entertaining a motion to continue, but what I am saying is, at least you're not getting jammed into . . . picking a jury this week that way, so what I'm going to do is pass it right now. . . . [¶] . . . [M]y . . . expectation is, we can deal with the motions in limine today, and we'll just take it one step at a time, but the plan is to bring a jury panel in Monday morning."
At a jury trial that commenced on Monday, October 20, 2008, Zachary Cummins testified that about 6:45 p.m. on December 28, 2003,*fn2 he was driving his Honda Civic from San Lorenzo to San Ramon when he saw a white Mazda or Camry ahead of him on Crow Canyon Road. They both made a right turn onto Norris Canyon Road and Cummins was about 30 or 40 yards behind. They were the only two cars on the road at the time and they were going slightly over the speed limit of 35 miles per hour. When the white car sped up, Cummins also sped up, but the white car then slowed down, forcing Cummins to "c[o]me up on him" and "have to brake suddenly." Cummins thought, "What's this guy doing?" Then, immediately before Cummins drove over a "bump" on the road with which he was familiar (because he drove the same road every day), he saw an arm come out of the window of the white car along with a "large" or "decent size" object. He then heard a sound--"pop, pop, or bang, bang"--that he, as an avid shooter and hunter, recognized as gun shots, and he saw a "muzzle flash." The shots came in rapid succession, "faster than a revolver," and the muzzle was pointed "kind of like he was pointing something at" the area where Cummins's car was. Cummins was familiar with firecrackers and did not believe the sounds came from firecrackers. What looked like two shell casings, but could have been rocks, bounced off the ground.
Cummins swerved to the right when he heard the shots but when the white car sped off, Cummins chased after it. He was concerned for his safety but "wanted to get this guy" because "it's people like that that give . . . gun owners bad names" and because "if he did it to me . . . I don't see why he wouldn't do it to somebody else." He followed the white car which, at that point, was going about 50 miles per hour. He stayed 50 to 60 yards behind because handguns "tend to drop at about 40 yards." When his cell phone reception returned, he called 911 and was transferred to the San Ramon Police Department. The dispatcher said, "this gentleman is armed, you need to keep your distance," but Cummins "just kind of disregarded what [the dispatcher] was saying" because "there's a million white cars out there" and he "didn't want to lose him." At some point, the white car went into a parking lot and slowed to almost a stop, made a right turn onto Executive Parkway, then crossed Iron Horse Trail. It slowed down to approximately five miles per hour after going past Iron Horse Trail, then sped up again. Eventually, on Bollinger Canyon Road, the white car stopped at a stop light and a police car arrived. The dispatcher told him to leave the scene and return to the Fire Department where the police would take his statement. When Cummins made a U-turn, he saw the driver being taken out of the white car. In court, he identified appellant as the driver of the white car. Cummins testified he spoke to an officer who took his statement. He was "pretty shaken up" but answered the officer's questions. He estimated he followed the white car for approximately 15 minutes after the shots went off and that he lost sight of it just once for three or four seconds. After he finished speaking to the officer, he went to his parents' house to pick up his snowboard, got on the freeway, and spent the next two days at Lake Tahoe. On his way home two days later, he stopped on Norris Canyon Road and walked around, out of curiosity, to see if he could see any shell casings, even though he knew "it would be a needle in a haystack." He did not find any shell casings.
On cross-examination, Cummins testified he did not see a passenger in the white car and did not see appellant throw anything out of the car at any point after the shots went off. He testified the man in the white car looked "skinnier" than how appellant appeared in court. He testified the shell casings did not hit his car and there was no damage to his car. He testified he thought the gun was a 9 millimeter or .45 caliber gun because he did not think anyone would carry a .22 caliber pistol for protection because it "doesn't do damage really." He acknowledged he testified at the preliminary hearing that he believed it was a 9 millimeter or .45 caliber gun because "you're not going to get a [.]22 to have a muzzle fire like that." On redirect examination, Cummins testified that in his experience with firearms, muzzle flashes from a 9 millimeter and a .22 caliber pistol are "somewhat" similar.
Contra Costa County Deputy Sheriff Leah Stabio testified that at approximately 6:42 p.m. on December 28, 2003, she was working on a contract basis as a San Ramon police officer when she received a call that "possible shots" were fired from a moving car and the victim was following the suspect's car. As she searched for the cars, she received a call that the suspect had been stopped on Bollinger Canyon Road. She went to the scene and assisted with the stop as the suspects were handcuffed and placed in patrol cars. She then went to a different location and interviewed Cummins, who "seemed scared" and was "jittery" but did not appear to be under the influence of alcohol or any drugs. Cummins described the events to her and was "positive" a gun had been used. When Stabio learned that no gun was found in the suspect's car, she went to the area where Cummins had told her the suspect car had "slowed almost to a stop," parked her car, and searched for the gun. At the base of a tree, she found a small, silver .22-caliber semi-automatic pistol inside a black nylon holster. The gun was found on the left-hand, driver's side of the vehicle. There was no trash, leaves or dirt on top of the gun and it was "clean to the touch." There was an eight-round magazine in the gun and there were six rounds inside, i.e., there were two bullets missing.
Dana Mendes testified she was engaged to appellant and they had a four-year-old son together. She recalled testifying before in the case and telling the district attorney at the time that she did not want to testify. At trial, she testified that at about 6:30 or 6:45 p.m. on December 28, 2003, she was in a white Mazda that appellant was driving. They were driving home to San Ramon after having dinner in Hayward and were near Norris Canyon Road in Castro Valley. She had had a couple of glasses of wine and appellant had not had any alcohol. At some point, they were driving on Norris Canyon Road when a car came up behind them at a fast rate of speed and "started tailgating [them] all the way through the road." Mendes looked at the side mirror and saw the car, a green Honda, come within approximately six inches of their car. The driver was wearing a beanie and it appeared there were a total of four people in the car, although she later learned that what she saw was one person and a lot of snowboard equipment. Appellant sped up a little but the Honda stayed six inches behind. She was scared and a little nervous because he was driving so closely on a dark road but she did not call the police because she did not have a cell phone or it was turned off, and appellant did not own a cell phone.*fn3 Appellant pulled over to the side to the let the Honda pass, but the Honda pulled to the side behind them, then continued to follow when they went back on the road. "Half way through the canyon maybe," she heard a loud noise that sounded like firecrackers.
Later, the police pulled them over at gunpoint and threw her to the ground, handcuffed her, and took her to the police station. She told a female police officer that she was looking in the rearview mirror but "[the police] kept insisting . . . I was a liar, I knew more, and they were going to put me in jail for being a coconspirator." She did not recall telling an officer that appellant was upset that they were being followed closely by another car, and did not remember saying she heard two loud bangs that sounded like gunfire. She did not recall telling an officer that when she asked appellant what the noise was, he told her it was not her concern, and she did not recall saying she did not "want to press the issue" because appellant could become verbally abusive. She also did not recall telling an officer that appellant put something in his waistband and that he slowed the car twice near a parking lot. She testified there were firecrackers in either the glove compartment or on the side of the door because she had received some from her Asian co-workers. She did not remember telling an officer that she knew appellant had a gun because she had seen it around her house, and that the gun was silver and "had a slide like the one that the officer had." She also did not remember telling an officer that appellant smoked ...