1

Filed 11/18/15 P. v. Davis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS JAMAL DAVIS,

Defendant and Appellant.

C071567

(Super. Ct. No. 11F01075)

Defendant Marcus Jamal Davis shot and killed Chester Jackson after an altercation 

at a restaurant. A jury convicted defendant of first degree murder and found true the 

allegations that defendant personally and intentionally discharged a firearm, proximately 
2

causing great bodily injury or death to Jackson. The trial court sentenced defendant to 

an aggregate of 50 years to life in prison. 

Defendant now contends (1) the trial court erred in instructing with CALCRIM 

No. 625 (voluntary intoxication: effects on homicide crimes); (2) the trial court erred 

in failing to instruct that even if there is insufficient provocation under an objective 

standard, defendant’s subjective belief in the provocation could reduce first degree 

murder to second degree murder; and (3) the trial court abused its discretion in denying 

defendant’s request for continuance so that defendant could retain private counsel to file 

a new trial motion based on ineffective assistance. 

We conclude (1) the trial court’s CALCRIM No. 625 instruction was a correct 

statement of the law, but in any event any instructional error was harmless; (2) there is 

no reasonable likelihood the jury understood that it could find defendant guilty of first 

degree murder without assessing his subjective state of mind; and (3) the trial court did 

not abuse its discretion in finding that defendant failed to demonstrate good cause for a 

continuance.

We will affirm the judgment.

BACKGROUND

Defendant twice moved from his table in a restaurant to an empty booth behind 

Chester Jackson and then talked on defendant’s cell phone. A confrontation ensued. 

Jackson had the equivalent of six alcoholic drinks in his system. Defendant had at least 

eight alcoholic drinks over the course of the evening. 

According to James Powell and Torrien Smothers, defendant “wanted to start 

something” when he aggressively said “what’s up” to Jackson, Powell, and Smothers

inside the restaurant. Defendant and Jackson said “what’s up” to each other. Jackson 

told a friend, during a cell phone conversation, that he was “about to get into it” with 

some guys. Defendant and everyone at Jackson’s table stood up. Powell was ready to hit 
3

defendant if Jackson swung at defendant. But codefendant Robert Earl Lucas intervened, 

saying “it’s good” or “it’s cool.” 

Defendant, Lucas, and defendant’s friend Mary McCain told a very different story. 

They said defendant moved from his table to a table behind Jackson to talk on his cell 

phone when he received a call from his girlfriend. Defendant claimed no words were 

exchanged between him and Jackson’s group at that time. Defendant later returned to 

the table behind Jackson because he thought there was another call on his cell phone. 

This time, Jackson turned around and said “what’s up” to defendant. Defendant 

answered “what’s up” and returned to texting on his cell phone. Jackson asked defendant 

why defendant kept going over to the empty table. Defendant said he stood up when 

Jackson did. Then Jackson’s friends also stood up. Lucas went over to see what was 

going on when he saw Jackson, Powell, Smothers and defendant stand up. Jackson asked 

why defendant was over in his area on the phone. Defendant replied, “what’s the 

problem?” Lucas got between defendant and Jackson, Powell, and Smothers. Lucas told 

defendant to “keep cool.” Lucas told Jackson and his group “is everything cool?” 

Jackson and his group answered everything was cool. Then Jackson left the restaurant 

with Powell and Smothers. 

Unbeknownst to Lucas, defendant had walked out of the restaurant. Jackson 

walked out of the restaurant a few seconds behind defendant. Powell and Smothers were 

right behind Jackson. Jackson and defendant were fighting by the time Powell and 

Smothers walked outside. Smothers ran over and tried to break defendant and Jackson 

apart. Powell punched defendant twice in his side or back. 

Lucas testified McCain asked him to get defendant, who had gone outside. Lucas 

saw Jackson and his group assaulting someone when he exited the restaurant. When he 

realized Jackson and his group were assaulting defendant, Lucas yelled at them to get off 

defendant. 
4

A waitress heard raised voices outside the restaurant. She informed a manager 

there was a group of people fighting outside. The waitress and the manager did not see 

anyone with a gun. The manager did not see anyone with their hands up in the air. 

But according to Smothers and Powell, Lucas pulled out a handgun when he

exited the restaurant. Smothers said Lucas pointed the gun at Jackson, Powell, and 

Smothers. And Jackson, Powell and Smothers put up their hands and said, “It’s cool. 

It’s cool.” 

Powell said he ran away when he saw Lucas raise his gun. He maintained he did 

not see or hear any gunshots. Smothers, on the other hand, claimed Lucas shot in the 

direction of Jackson, Powell, and Smothers, and Powell and Smothers ran away after the 

shot was fired. Smothers claimed he ran back when he realized Jackson was not behind 

him, and he saw defendant point a handgun in Smother’s direction and shoot four or five 

times. Smothers said he ran away again when those shots rang out. 

Lucas testified he did not have a gun. He said he was one to two feet away from 

Smothers and about three feet away from defendant when he heard multiple gunshots. 

Lucas did not see anyone with a gun. He ran to his vehicle. 

The restaurant manager ran to the front door of the restaurant when she heard 

about four gunshots fired in succession. She did not hear a single gunshot before she 

heard the multiple gunshots. She saw an African American man lying on the sidewalk

and about four people running away. The manager saw a man she later identified as 

defendant walk toward the man lying on the sidewalk. According to the manager,

defendant pulled out a gun as he approached the man on the sidewalk and stopped when 

he was one to two feet away from the man. The manager heard defendant say, “I told 

you this mother fucking shit was going to happen.” The manager testified defendant

pointed his gun at the head of the man on the ground. The manager heard one gunshot 

after she turned away. When she opened the door again, she saw defendant walking

away from the restaurant. 
5

Surveillance video showed a dark colored sports utility vehicle leave at a high rate 

of speed from the restaurant parking lot at about the time of the shooting. Lucas and 

McCain left in Lucas’s black sports utility vehicle and were later joined by defendant. 

Defendant told Lucas and McCain, “they hit me in the jaw.” He said someone “jumped” 

him and took his chain. Police found defendant’s gold chain and medallion on the 

sidewalk in front of the restaurant. The chain was broken. 

Jackson was unarmed at the time of the murder. He had multiple gunshot wounds

to his head, face, shoulder, forearm, neck, hip, thigh, and chest area. A forensic 

pathologist opined that the wounds to the head, face and forearm were consistent with 

Jackson lying on the sidewalk and the shooter firing at Jackson from above. One of the 

gunshot wounds was inflicted when Jackson had his back to the shooter. Jackson died as 

a result of the gunshot wounds to his head and torso. 

Police located a “live bullet,” a bullet that had not been fired from a firearm, at the 

top of the stairs outside the front door of the restaurant. A live bullet can be expended 

from a semi-automatic firearm if the shooter “racks the gun” or cycles a live round into 

the firing chamber of the gun to prepare it for firing. A police detective opined the 

shooter was standing on the upper landing area of the restaurant when the “live bullet”

was cycled out of the gun. Eight spent cartridges were also found at the front of the 

restaurant. All the cartridges were fired from the same semi-automatic firearm. Two 

10 millimeter bullets were recovered from Jackson’s body. The “live bullet” was the 

same caliber and brand as the bullets recovered from Jackson’s body and the spent 

cartridges recovered at the scene. 

Defendant and Lucas turned themselves in to police four days after the shooting. 

Defendant did not have any injuries on his face, head, or body at that time. 

McCain told police defendant and Lucas both had guns on the evening before the 

shooting. At trial, however, McCain denied that she saw defendant or Lucas with a gun. 

But police found gunshot residue on the driver’s side floorboard of Lucas’s vehicle. 
6

Defendant testified at trial. He admitted he shot Jackson. Defendant said he felt 

someone punch him on the right side of his jaw as he was leaning over the outside railing 

of the restaurant with his eyes closed. He then felt someone punch him from the back, 

grab him and rip his chain off. He thought someone was robbing him. Defendant said he 

did not know who was attacking him. He panicked and tried to pull his gun out of his 

waistband when he was at the top of the landing area outside the restaurant. He fired his 

gun as fast as he could until he had fired all the bullets. He intended to defend himself. 

Defendant denied making the statement that the manager testified she heard the shooter 

make. 

Defendant said when the shooting stopped, he saw someone on the ground. 

He did not see anyone else shooting and did not see Lucas with a gun that night. 

Defendant ran away because he was frightened. He did not tell Lucas or McCain that 

he shot someone. He kept his gun hidden from Lucas. He later threw the gun away. 

Lucas testified he had never seen defendant with a gun, and had no reason to 

believe defendant had a gun at the restaurant. 

After a joint trial, the jury acquitted Lucas on all charges and lesser included 

offenses. The jury found defendant guilty of first degree murder. (Pen. Code, § 187, 

subd. (a).)1 The jury found true the allegations that defendant personally and 

intentionally discharged a firearm, proximately causing great bodily injury or death to 

Jackson. (§§ 12022.53, subds. (b), (c), (d).) 

The trial court sentenced defendant to 25 years to life on count one and imposed 

an additional and consecutive 25 years to life sentence for the section 12022.53 

allegation. 

 

1 Undesignated statutory references are to the Penal Code.
7

DISCUSSION

I

Defendant contends the trial court erred in instructing with CALCRIM No. 625 

(voluntary intoxication: effects on homicide crimes). Specifically, defendant argues the 

trial court failed to instruct the jury that evidence of voluntary intoxication is relevant to 

his subjective state of mind for imperfect self-defense. 

Defendant asked the trial court to instruct the jury with CALCRIM No. 625. 

Consistent with CALCRIM No. 625, the trial court instructed the jury: “You may 

consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. 

[¶] You may consider that evidence only in deciding whether the defendant acted with an 

intent to kill or the defendant acted with deliberation and premeditation. [¶] A person is 

voluntarily intoxicated if he or she becomes intoxicated by willingly using any 

intoxicating drug, drink or other substance knowing that it could produce an intoxicating 

affect [sic] or willingly assuming the risk of that affect [sic]. [¶] You may not consider 

evidence of voluntary intoxication for any other purpose.” 

CALCRIM No. 625 is a correct statement of the law. (§ 29.4; People v. Timms

(2007) 151 Cal.App.4th 1292, 1298 (Timms).)2 Evidence of voluntary intoxication is 

admissible solely on whether the defendant actually formed a required specific intent or, 

when charged with murder, whether the defendant premeditated, deliberated, or harbored 

express malice aforethought. (§ 29.4, subd. (b).) Defendant did not ask the trial court to 

clarify or modify the CALCRIM No. 625 instruction. Defendant may not argue on 

appeal that an instruction correct in law was too general or incomplete and, thus, needed 

clarification, without first requesting such clarification at trial. (People v. Rundle (2008) 

43 Cal.4th 76, 145, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 

 

2 Section 22 was renumbered as section 29.4 with no substantive change effective 

January 1, 2013. (Stats. 2012, ch. 162, § 119.)
8

390, 421, fn. 22 [“Any lack of clarity regarding the consideration, if any, the jury should 

give to evidence of voluntary intoxication, in the absence of a request for an instruction 

on this subject, is of the defendant's doing, and on appeal he cannot avail himself of his 

own inaction.”]; People v. Cleveland (2004) 32 Cal.4th 704, 750.) 

Defendant nevertheless contends he may raise his claim of instructional error on 

appeal because the CALCRIM No. 625 instruction misstated the law and violated his 

constitutional right to due process. We have already explained that the CALCRIM 

No. 625 instruction was a correct statement of the law. In addition, defendant has not 

met his burden in establishing a due process violation. In any event, any instructional 

error was harmless.

Murder is the unlawful killing of a human being with malice aforethought. 

(§ 187, subd. (a).) Malice aforethought may be express or implied. (§ 188.) Express 

malice is an intent to kill. (People v. Beltran (2013) 56 Cal.4th 935, 941 (Beltran).) 

Malice is implied when a person willfully commits an act, the natural and probable 

consequences of which are dangerous to human life, and the person knowingly acts with 

conscious disregard for the danger to life that the act poses. (Id. at pp. 941-942.) The 

killing of a human being with malice aforethought, willfulness, premeditation, and 

deliberation is first degree murder. (§ 189.) The killing of a human being with malice 

aforethought, but without willfulness, premeditation and deliberation is second degree 

murder. (§§ 187, 189.) Voluntary intoxication can negate express malice, premeditation, 

and deliberation and reduce a crime from first to second degree murder. (People v. Lam

(2010) 184 Cal.App.4th 580, 585; People v. Turk (2008) 164 Cal.App.4th 1361, 1376-

1377; Timms, supra, 151 Cal.App.4th at p. 1298.) 

Manslaughter is the unlawful killing of a human being without malice

aforethought. (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter 

when he acts in a sudden quarrel or heat of passion or when he kills in unreasonable or 

imperfect self-defense. (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore); 
9

People v. Rios (2000) 23 Cal.4th 450, 461; People v. Lasko (2000) 23 Cal.4th 101, 108.) 

One who kills while holding an actual but unreasonable belief that he is in imminent 

danger of death or great bodily injury and that it is necessary to defend himself (also 

known as imperfect self-defense) does not harbor malice aforethought and commits 

voluntary manslaughter, not murder. (Elmore, supra, 59 Cal.4th at p. 134; In re 

Christian S. (1994) 7 Cal.4th 768, 773.) Whether the defendant actually held the 

requisite belief for imperfect self-defense is to be determined by the trier of fact based on 

all the relevant facts, including the defendant’s voluntary intoxication. (In re Christian 

S., supra, 7 Cal.4th at p. 783; People v. Cameron (1994) 30 Cal.App.4th 591, 601, 

superseded on another point by section 29.4.)

The trial court correctly instructed that evidence of defendant’s intoxication was 

relevant to whether defendant acted with an intent to kill or deliberation and 

premeditation. (Timms, supra, 151 Cal.App.4th at p. 1298.) Regarding imperfect selfdefense, the trial court instructed the jury that defendant acted in imperfect self-defense if 

he actually believed he was in imminent danger of being killed or of great bodily injury, 

or if he was in imminent danger of being robbed and he actually believed the immediate 

use of deadly force was necessary to defend against the danger, but at least one of those 

beliefs was unreasonable. The trial court correctly stated that defendant was guilty of 

voluntary manslaughter, not murder, if he killed a person because he acted in imperfect 

self-defense. (Elmore, supra, 59 Cal.4th at p. 134; In re Christian S., supra, 7 Cal.4th at 

p. 773.) The trial court told the jury to consider all circumstances as appeared to 

defendant in assessing whether defendant acted in imperfect self-defense. All 

circumstances as appeared to defendant would include a consideration of defendant’s 

state of intoxication. 

Defendant did not argue to the jury that his state of intoxication affected his belief 

in the need for self-defense. Further, there was compelling evidence defendant did not 

act in imperfect self-defense. The restaurant manager’s testimony showed defendant 
10

fired his gun at Jackson with the intent to kill Jackson, and defendant did not actually 

believe he was in imminent danger of death or great bodily injury when, after firing 

several shots at and injuring Jackson, he returned to where Jackson was lying on the 

sidewalk and fired a shot at Jackson’s head while stating, “I told you this mother fucking 

shit was going to happen.” Apparently, the jury found this account of the shooting more 

credible than defendant’s account.

It is true that the prosecutor argued the jury could only consider voluntary 

intoxication in deciding whether defendant acted with intent to kill or acted with 

premeditation or deliberation and not for any other purpose. But the prosecutor made 

that statement in the context of arguing that defendant intended to kill Jackson. The 

prosecutor did not discuss voluntary intoxication in the context of imperfect self-defense. 

For all of these reasons, any error in the trial court’s instruction on voluntary 

intoxication was harmless even under the Chapman v. California (1967) 386 U.S. 18

[17 L.Ed.2d 705] standard. (People v. Aranda (2012) 55 Cal.4th 342, 367 [under 

Chapman, a federal constitutional error is harmless when the reviewing court determines 

beyond a reasonable doubt that the error complained of did not contribute to the verdict; 

reversal is required only when there is a reasonable possibility the error might have 

contributed to the verdict].) We do not consider defendant’s ineffective assistance of 

counsel claim because we have considered the merits of his instructional error claim and 

conclude there is no prejudicial error. 

II

Defendant also argues the trial court erred in failing to instruct that even if there 

is insufficient provocation under an objective standard, defendant’s subjective belief in 

the provocation could reduce first degree murder to second degree murder. He argues 

the instructions given to the jury -- CALCRIM No. 522 (provocation: effect on degree 

of murder) and CALCRIM No. 570 (voluntary manslaughter: sudden quarrel or heat 
11

of passion) -- erroneously suggested an objective standard of provocation applied to 

reduce first degree murder to second degree murder. 

In reviewing a claim that the court’s instructions are misleading, we inquire 

whether there is a reasonable likelihood the jury understood the challenged instructions in 

the manner the defendant asserts. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 

1332 (Hernandez).) We consider the instructions as a whole and assume the jurors are 

intelligent persons capable of understanding and correlating all the instructions. (Ibid.) 

We interpret the instructions in a manner consistent with the judgment if the

instructions are reasonably susceptible to such interpretation. (People v. Martin

(2000) 78 Cal.App.4th 1107, 1111-1112.)

As we have explained, heat of passion precludes the formation of malice 

aforethought and reduces an unlawful killing from murder to voluntary manslaughter. 

(Beltran, supra, 56 Cal.4th at p. 942.) The heat of passion requirement for voluntary

manslaughter has subjective and objective components. (People v. Steele (2002) 

27 Cal.4th 1230, 1252.) “The defendant must actually, subjectively, kill under the heat of 

passion. [Citation.] But the circumstances giving rise to the heat of passion are also 

viewed objectively.” (Ibid.) The facts and circumstances must be sufficient to arouse the 

passions of an ordinarily reasonable person. (Id. at p. 1253.) “Heat of passion arises if, 

‘ “at the time of the killing, the reason of the accused was obscured or disturbed by 

passion to such an extent as would cause the ordinarily reasonable person of average 

disposition to act rashly and without deliberation and reflection, and from such passion 

rather than from judgment.” ’ ” (Beltran, supra, 56 Cal.4th at p. 942; see Steele, supra, 

27 Cal.4th at pp. 1252-1255.) 

Heat of passion arising from provocation can also negate premeditation and 

deliberation and reduce a murder from first to second degree. (Hernandez, supra, 

183 Cal.App.4th at p. 1332.) The test for whether provocation reduces the degree of a 

murder is subjective. (People v. Jones (2014) 223 Cal.App.4th 995, 1000 (Jones); 
12

Hernandez, supra, 183 Cal.App.4th at p. 1332; People v. Fitzpatrick (1992) 

2 Cal.App.4th 1285, 1295-1296.) “The issue is whether the provocation precluded the 

defendant from deliberating. [Citation.] This requires a determination of the defendant’s 

subjective state.” (Fitzpatrick, supra, 2 Cal.App.4th at p. 1295.) 

Here, even if defendant did not forfeit his appellate claim by failing to request 

clarification or amplification in the trial court,

3 based on our review of the instructions as 

a whole, we conclude there is no reasonable likelihood the jury understood that it could 

find defendant guilty of first degree murder without assessing his subjective state of 

mind. The jury was instructed on murder pursuant to CALCRIM Nos. 520 and 521. 

The trial court told the jury defendant committed murder if he committed an act that 

caused the death of a person, he acted with malice aforethought, and he killed without a 

lawful excuse or justification. The trial court explained express and implied malice

aforethought. It also told the jury if defendant committed murder and he acted willfully, 

deliberately and with premeditation, defendant was guilty of first degree murder. 

Otherwise, defendant was guilty of second degree murder. The trial court explained the 

terms willfully, deliberately, and with premeditation. 

Regarding the effect of provocation on the degree of murder committed, the trial 

court instructed with CALCRIM No. 522. The trial court said, “Provocation may reduce 

a murder from first degree to second degree and may reduce a murder to manslaughter. 

The weight and significance of the provocation, if any, are for you to decide. [¶] If you 

conclude that the defendant committed murder but [was] provoked, consider the 

provocation in deciding whether the crime was first or second degree murder. [¶] 

 

3

 Compare Jones, supra, 223 Cal.App.4th at p. 1001 [failure to request a pinpoint 

instruction that CALCRIM No. 570’s objective test did not apply to the reduction of the 

degree of murder based on provocation results in forfeiture] with Hernandez, supra, 

183 Cal.App.4th at p. 1331, fn. 2 [declining to find forfeiture of the same appellate claim 

because asserted error affected the defendant’s substantial rights]. 
13

Also consider the provocation in deciding whether the defendant committed murder or 

manslaughter.” 

Using CALCRIM No. 570, the trial court then instructed that a killing that would 

otherwise be murder is reduced to voluntary manslaughter if the defendant killed 

someone because of a sudden quarrel or in the heat of passion. The trial court instructed 

that defendant killed someone because of a sudden quarrel or in the heat of passion if:

(1) he was provoked, (2) as a result of the provocation, he acted rashly and under the 

influence of intense emotion that obscured his reasoning or judgment, and (3) the 

provocation would have caused a person of average disposition to act rashly and 

without due deliberation, that is, from passion rather than from judgment. The trial court 

said, “In deciding whether the provocation was sufficient, consider whether a person of 

average disposition in the same situation and knowing the same facts would have reacted 

from passion rather than from judgment. [¶] If enough time passed between the 

provocation and the killing for an ordinary person of average disposition to cool off and 

regain his or her clear reasoning and judgment, then the killing is not reduced to 

voluntary manslaughter on this basis.” 

The instructions informed the jury of the necessary mental states for first and 

second degree murder and that provocation can reduce a murder from first to second 

degree. The jury was instructed that defendant was guilty of second degree murder if he 

killed with malice aforethought but was provoked. The term provocation in CALCRIM 

No. 522 is used in a non-technical sense. (People v. Cole (2004) 33 Cal.4th 1158, 1217-

1218.) Provocation means “ ‘to arouse to a feeling or action . . . [or] to incite to anger.’ ” 

(Hernandez, supra, 183 Cal.App.4th at p. 1334.) “The evidentiary premise of a 

provocation defense is the defendant’s emotional reaction to the conduct of another . . .” 

(People v. Ward (2005) 36 Cal.4th 186, 215.) The jury would necessarily be required

to evaluate defendant’s subjective state of mind to determine whether he was provoked 

to act. The CALCRIM No. 522 instruction on reducing murder from first to second 
14

degree does not contain an objective test for provocation. CALCRIM No. 570, which 

contains an objective test for provocation, dealt expressly and exclusively with 

provocation to reduce murder to voluntary manslaughter. (Jones, supra, 223 Cal.App.4th 

at p. 1001.) 

The arguments to the jury did not suggest a contrary standard. The prosecutor said 

provocation necessary to reduce murder to voluntary manslaughter is evaluated under an 

objective standard. He explained provocation can also reduce first degree murder to 

second degree murder. The prosecutor did not argue an objective test applied to reduce 

murder from first to second degree. (Jones, supra, 223 Cal.App.4th at p. 1001 [finding 

no error in similar circumstance].) Defense counsel did not address whether an objective 

or subjective test applied to reduce the degree of a murder. In fact, defense counsel did 

not rely on provocation or heat of passion to argue that defendant committed second, 

rather than first, degree murder. Defendant’s trial counsel argued instead that at most 

defendant was guilty of voluntary manslaughter. 

Defendant claims the word “reduce” in CALCRIM No. 522 incorrectly implies 

that the jury may find defendant guilty of first degree murder and may then consider 

whether provocation reduces the murder from first to second degree. We disagree. 

The trial court instructed that in order to find defendant guilty of first degree murder, 

the jury must find defendant acted willfully, deliberately, and with premeditation. 

The trial court said a decision to kill made rashly, impulsively or without careful 

consideration is not deliberate and premeditated. Read with the instruction on first 

degree murder, CALCRIM No. 522 conveys “ ‘provocation (the arousal of emotions) 

can give rise to a rash, impulsive decision, and this in turn shows no premeditation 

and deliberation.’ ” (Jones, supra, 223 Cal.App.4th at p. 1001; Hernandez, supra,

183 Cal.App.4th at p. 1334.) The jury would have understood the existence of 

provocation would support the absence of premeditation and deliberation and, thus,

preclude a first degree murder finding. (Ibid.)
15

CALCRIM Nos. 521, 522 and 570 are not misleading when given together. 

(Jones, supra, 223 Cal.App.4th at p. 1001.) We do not consider defendant’s ineffective 

assistance of counsel claim because we conclude there is no instructional error. 

III

Defendant further asserts that the trial court abused its discretion in denying 

defendant’s request for continuance so that defendant could retain private counsel to file 

a new trial motion based on ineffective assistance. 

A defendant has the right to retain counsel of his choice as part of his right to 

effective assistance of counsel and due process of law. (People v. Courts (1985) 

37 Cal.3d 784, 789-790 (Courts); People v. Jeffers (1987) 188 Cal.App.3d 840, 849 

(Jeffers).) However, that right is not absolute. (Jeffers, supra, 188 Cal.App.3d at p. 850.) 

The right to counsel of one’s choice “ ‘must be carefully weighed against other values of 

substantial importance, such as that seeking to ensure orderly and expeditious judicial 

administration, with a view toward an accommodation reasonable under the facts of the 

particular case.’ ” (Courts, supra, 37 Cal.3d at p. 790.) 

Continuances are granted in a criminal proceeding only upon a showing of good 

cause. (§ 1050, subd. (e).) Such showing requires the party seeking a continuance to 

demonstrate that counsel and the party acted with due diligence. (People v. Lewis and 

Oliver (2006) 39 Cal.4th 970, 1036; People v. Jenkins (2000) 22 Cal.4th 900, 1037

(Jenkins); People v. Johnson (2013) 218 Cal.App.4th 938, 942.) A trial court may deny a 

request for continuance if the defendant is unjustifiably dilatory in obtaining counsel. 

(Courts, supra, 37 Cal.3d at pp. 790-791; Jeffers, supra, 188 Cal.App.3d at p. 850.) 

A trial court has broad discretion to determine whether good cause exists to grant 

a continuance. (People v. Beames (2007) 40 Cal.4th 907, 920; Jenkins, supra, 22 Cal.4th 

at p. 1037.) The trial court abuses its discretion only when it exceeds the bounds of 

reason, all circumstances being considered. (Beames, supra, 40 Cal.4th at p. 920.) The 

party challenging the trial court’s denial of a motion for continuance bears the heavy 
16

burden of establishing a clear abuse of discretion. (Ibid.; People v. Froehlig (1991) 

1 Cal.App.4th 260, 265.) We look at the circumstances of each case, particularly the 

reasons presented to the trial judge at the time the request for continuance was denied, in 

deciding whether the trial court’s denial of a continuance was so arbitrary as to deny due 

process. (Courts, supra, 37 Cal.3d at p. 791.) 

The lateness of a request for continuance can be a significant factor justifying 

denial, absent compelling circumstances to the contrary. (Courts, supra, 37 Cal.3d 

at p. 792, fn. 4 [referring to eve-of-trial requests for continuance]; Jeffers, supra, 

188 Cal.App.3d at p. 850.) Here, defendant had about a month to obtain private counsel

before his sentencing hearing if he wanted to do so. Two days before the sentencing 

hearing, the trial court received a letter purportedly from defendant’s mother stating 

defendant’s family wanted a continuance of the sentencing hearing so that the family 

could retain counsel for a new trial motion. The letter says defendant was seeking a new 

trial based on ineffective assistance of counsel. Defendant did not sign the letter, and we 

cannot determine whether he received a copy of the letter. The letter does not explain the 

reason for the delay in notifying the trial court of a need for a continuance. (Contrast 

Courts, supra, 37 Cal.3d at pp. 795-796 [finding defendant was diligent in his efforts to 

apprise the trial court of his wish to find substitute counsel at the earliest possible time].) 

Defendant did not move for a continuance until the day of the sentencing hearing. No 

explanation was given for defendant’s late request. The record on appeal does not 

contain any written notice to continue the sentencing hearing or show of good cause for 

defendant’s failure to file a written notice.4 The trial court could reasonably find under 

those circumstances that defendant’s motion for a continuance was untimely. 

 

4

 Section 1050 requires the party requesting a continuance to file and serve on all parties 

to the proceeding a written notice, at least two court days before the hearing sought to be 

continued, together with affidavits or declarations detailing specific facts showing that a 
17

Moreover, unlike the defendant in Courts, defendant here did not demonstrate that 

he made a good faith, diligent effort to obtain counsel. (Courts, supra, 37 Cal.3d at 

p. 791.) The letter from defendant’s mother does not describe what efforts defendant or 

his family members made to hire private counsel. No such information was presented at 

the sentencing hearing when defendant’s trial counsel made an oral motion for a 

continuance. There was no indication as to when defendant formed the opinion that his 

trial counsel’s representation was inadequate. There was no basis for the trial judge to 

conclude defendant was not responsible for the delay in obtaining private counsel. 

(Contrast Courts, supra, 37 Cal.4th at p. 792.) 

Defendant’s trial counsel said defendant and his mother were “in the process of 

retaining” an attorney in Berkeley, but had not yet retained that person. Defendant did 

not give the trial court any information about when defendant or his family would retain 

the Berkeley attorney or what was required to complete the process of retaining that 

attorney. Defendant attempts to place the burden on the trial court to elicit information 

regarding good cause for a continuance. But the burden was on defendant to 

affirmatively prove the grounds for his motion. (Cal. Rules of Court, rule 4.113; 

People v. Stump (1971) 14 Cal.App.3d 440, 442-443.) Denial of a continuance is proper 

where, as here, the prospect of hiring private counsel was still speculative at the time 

defendant moved for a continuance. (Courts, supra, 37 Cal.3d at p. 791, fn. 3; People v. 

Pigage (2003) 112 Cal.App.4th 1359, 1367 [no abuse of discretion in denying 

continuance to allow the defendant to seek private counsel where the defendant waited 

 

continuance is necessary. (§ 1050, subd. (b).) A party may still make a motion for a 

continuance without complying with the requirements of subdivision (b). (Id. at subd. 

(c).) However, unless the moving party shows good cause for the failure to comply with 

those requirements, the trial court may impose sanctions against that party. (Ibid.) The 

trial court addressed the merits of defendant’s motion for continuance without requiring 

defendant to show good cause for his failure to file the required written notice. We will 

do the same.
18

until the last minute to express concern about his appointed counsel’s representation and 

there was no evidence the defendant attempted to retain counsel or had even taken steps 

to secure funds to hire private counsel].) Courts is distinguishable because in that case 

the defendant had actually retained his new attorney by the time he renewed his motion 

for a continuance. (Courts, supra, 37 Cal.3d at pp. 788, 791.) 

The letter from defendant’s mother states defendant would seek a new trial based 

on ineffective assistance of counsel. Defendant’s trial counsel said the Berkeley attorney 

would need to see the transcripts to evaluate and prepare any new trial motion, and that 

defendant’s mother indicated it would take three to four months. Defendant did not 

specify the potential grounds for a new trial motion based on ineffective assistance of 

counsel.5 Unlike in Courts, no new attorney appeared at the hearing in this case. 

(Courts, supra, 37 Cal.3d at p. 788.) 

Defendant claims the trial court denied his request for a continuance based solely 

on its observation that his trial counsel’s in-court performance was competent. The 

record does not support that assertion. The trial court said defendant had almost a month 

to hire the Berkeley attorney and it did not appear the Berkeley attorney had been 

retained. The trial court denied defendant’s motion for lack of good cause. 

 

5

 The issue presented is not whether the trial court committed error under People v. 

Marsden (1970) 2 Cal.3d 118, but whether the trial court abused its discretion in denying 

defendant a continuance in order to secure private counsel. (People v. Blake (1980) 

105 Cal.App.3d 619, 623.) In any event, no Marsden hearing was necessary because 

defendant did not move to substitute his appointed trial counsel for another appointed 

counsel. (Courts, supra, 37 Cal.3d at p. 795, fn. 9 [Marsden involved the substitution of 

appointed counsel for another appointed counsel].) The Marsden requirements are 

directed at preventing waste of public resources through duplicative representation at 

taxpayers’ expense. (People v. Ortiz (1990) 51 Cal.3d 975, 986.) That concern is not 

present when a defendant wishes to replace appointed counsel with a privately retained 

attorney. 
19

The trial court did not abuse its discretion in finding no good cause for a 

continuance. We do not address the merits of any new trial motion based on ineffective 

assistance of counsel because no such motion was presented to the trial court. 

DISPOSITION

The judgment is affirmed.

 /S/

Mauro, J.

We concur:

 /S/

Hull, Acting P. J.

 /S/

Duarte, J.