Filed 6/29/16 P. v. Wright CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B257104
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA391654)
v.
BRADLEY WRIGHT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
George G. Lomeli, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
******
Appellant Bradley Wright challenges his conviction for assault with a firearm,
arguing the trial court abused its discretion and violated his constitutional rights when it
excluded his ballistics expert at the beginning of trial and denied a continuance to find a
new expert. We affirm.
PROCEDURAL BACKGROUND
Appellant was charged with one count of attempted murder of Cameron Stewart
(Pen. Code, §§ 187, subd. (a), 664;1 count 1) and two counts of assault with a firearm of
Cameron Stewart and Stacie L. (§ 245, subd. (a)(2); counts 2 & 3). Various firearm
enhancements were also alleged. (§§ 12022.5, 12022.53, subds. (b), (c).) It was further
alleged he had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)), three prior prison terms (§ 667.5, subd. (b)), and two prior serious felonies (§ 667,
subd. (a)(1)). A jury found him not guilty of counts 1 and 3, but convicted him of assault
with a firearm in count 2 and found the firearm enhancements true. In a separate
proceeding, the trial court found the prior conviction and prison term allegations true.
The court sentenced him to 39 years to life, consisting of 25 years to life under the “Three
Strikes” law, plus four years for the personal firearm use enhancement (§ 12022.5, subd.
(a)), and two 5-year terms for the prior serious felonies (§ 667, subd. (a)(1)). Appellant
timely appealed.
FACTUAL BACKGROUND
The shooting in this case occurred on December 7, 2011, when, according to the
prosecution, appellant pointed a gun at Stacie L. and shot at Cameron Stewart. Prior to
that day, Stacie L. had dated appellant for about two years and had a son and a daughter
with him. In November 2011, after she and appellant had broken up, appellant had an
altercation with Stewart, whom Stacie L. was dating at the time. A few days prior to the
assault on December 7, Tracie W. (Stacie L.’s close friend akin to a sister) overheard a
conversation in which appellant said, “When my hand get better, I’m gonna beat that
1 Undesignated statutory citations are to the Penal Code unless otherwise noted.
2
nigga Cameron’s ass.” Tracie W.’s boyfriend at the time, Gregory Martin, also
overheard appellant say, “Just wait until my hand is better, then we’ll see what happens.”
Stacie L. testified that on December 7, 2011, she and appellant agreed he would
bring their daughter to Tracie W.’s apartment in Los Angeles. She was there, along with
their son, Stewart, Tracie W., Martin, and Tracie W.’s mother Marie M. About 7:30
p.m., appellant called to tell Stacie L. he had arrived. She went to appellant’s truck
parked out front. Appellant asked her to bring their son with her, but she refused and
asked for their daughter. They began to argue.
According to Stacie L., appellant had their daughter in his lap in the front seat of
his truck and he was holding what looked like a gun. He pointed it at Stacie L. and
demanded she give him their son. He then put their daughter in the passenger seat and
got out of the car. Stacie L. took their daughter out of the car, and appellant grabbed
Stacie L. She ran from him. Martin emerged from the apartment, and Stacie L. saw
appellant point the gun at him. Stacie L. ran past a gate, turned, and saw appellant
running after her. Appellant said, “Is that Cameron[?]” Stacie L. then heard a gunshot
and saw Stewart run. Appellant also ran. Stacie L. did not hear a second shot and denied
telling police she saw appellant fire twice.
Tracie W. had a somewhat different recollection. As she walked toward a gate
outside her apartment, she saw appellant walking toward her holding a gun at waist level.
Stacie L. was holding their daughter and following appellant toward the apartment,
screaming and yelling at him. Tracie W. was also yelling at appellant to leave. Martin
was by the gate calling the police. Marie M. was still inside the apartment by the door.
Stewart pushed past Marie M. and exited the apartment. As Stewart came out, appellant
said, “Is that that punk ass nigger, Cameron?” Then Tracie W. saw appellant raise the
gun up and shoot at Stewart from about 18 feet away. He did not shoot at the ground or
into the air. Stewart ran and hopped a fence to a neighbor’s yard. Appellant shot in
Stewart’s direction a second time. Later, Tracie W. showed a defense investigator an
“indent in the ground outside” and told him the bullet “probably hit there and went
3
through my door.” She noticed a hole in her screen door the next day that had not been
there previously.
Marie M. testified she also saw appellant shoot at Stewart. As she was standing
near the doorway, she felt the bullet pass close to her: “it felt like it went to the ground,
went past my leg. Because it was so close, it—it felt like it hit me, but I know it did not.”
She saw it ricochet off the ground, leaving an indentation there. She went inside and
heard a second shot. She later saw a hole in the screen door she had not seen before the
shooting and believed it was caused by the bullet.
Martin testified when appellant raised the gun at him, he lowered it when he
realized it was him. He saw appellant fire twice, once when Stewart was outside the
apartment door and once as he ran away. For the first shot, appellant was “maybe a few
feet from the front door.” Martin did not see a ricochet, nor did he see appellant shoot
toward the air or the ground. He shot at chest level.
Stewart testified while in custody on unrelated robbery and assault charges. He
was present when appellant and Stacie L. got into the altercation in November 2011, but
he denied getting into a physical fight with appellant or telling Martin he had done so.
He also denied he had seen a gun the night of the shooting, but he admitted he had
previously testified he had seen a gun and someone had shot at him.
Los Angeles Police Department Criminalist Jessica Moody examined the hole in
the screen door and opined it was caused by the passage of a bullet. Chemical testing
yielded copper and lead residue near the hole, consistent with a bullet impact. If the door
was open at the time of the shooting, the hole was consistent with a bullet traveling
slightly upward. She could not determine the caliber of the bullet from the size of the
hole. She also could not accurately determine a trajectory. To do so, she needed “two
points” or material solid enough to hold a trajectory rod in place, and the screen door was
too thin to provide a solid straight line for a rod. Because the trajectory was slightly
upward and the hole was about a foot and a half off the ground, the muzzle of the gun
must have been fired from a lower point, or caused by a ricochet. She did not opine a
4
ricochet occurred, but only that it was possible. No gun, bullets, or casings were
introduced at trial.
A defense investigator testified for the defense. He interviewed Tracie W. and
Martin two years after the shooting. He confirmed Tracie W. pointed out the hole in the
screen door and said appellant “shot down around there.”
Appellant testified to his version of events. He admitted he and Stewart got into
an altercation a month before the shooting, during which they were pushing and shoving
each other, but “no fists [were] exchanged.” Prior to the shooting, he had obtained a .45-
caliber handgun from a coworker because he was concerned about some members of
Stacie L.’s family. He knew he should not have a firearm due to his prior felony
convictions.2 He arrived at Stacie L.’s apartment to drop off their daughter and pick up
their son. He parked out front and Stacie L. approached. They argued. He denied
pulling the gun, pointing it at her, or threatening her with it. Stacie L. went inside to
bring their son out. Appellant took their daughter out of her car seat and waited for her.
When she returned without their son, appellant told her to go back and get him. He put
their daughter back into her car seat. Stacie L. screamed, “Call the police. Call the
police. He’s taking my daughter. Help. Help. Call the police.” She did not yell that
appellant had a gun. Appellant saw Martin approaching and grabbed the gun because he
felt threatened. At that moment he did not know Stewart was in the apartment. Stacie L.
took their daughter from the truck and walked through the front gate. Martin continued
to approach appellant, and appellant said, “Hey, what are you doing? This has nothing to
do with you.” Appellant held the gun in his left hand because his right hand was in a
cast. Martin backed up.
Appellant began running after Stacie L., who was running toward the apartment.
At that time he did not intend to shoot the gun. He saw Marie M. standing in the
doorway holding his son. Tracie W. ran out of the apartment and appellant ran past her.
He saw Stewart run out of the apartment and stop just as Stacie L. was running inside. At
2 He admitted he was convicted of robbery and use of a firearm in 1997.
5
the time appellant was 20 feet from the door. Appellant testified Stewart began to
“approach[ ] me a little bit,” at which point “I lifted the gun in the air and I fired it one
time.” He explained, “I just felt rushed because they all kind of ran out at me, first
[Martin], then Tracie [W.], and then [Stewart]. So I just felt a little, I don’t know, scared,
I guess.” He claimed he was not thinking and “it was a quick reaction” because he
wanted them to back off and he was “a little frustrated.” He denied he said anything
about Stewart and he never used the “n” word. He also denied shooting at the screen
door or shooting a second time. He explained, “Marie [M.] was in the door with my son,
and there’s absolutely no way on this planet that I would put my son’s life in danger like
that, for no one.” He would “rather shoot myself than put my son’s life in danger like
that.”
DISCUSSION
Appellant claims the trial court abused its discretion and violated his constitutional
rights to due process, a fair trial, effective assistance of counsel, and to present a defense
when it excluded appellant’s proposed ballistics expert Dr. Bruce Krell at the start of his
trial as unqualified to give expert ballistics testimony and then denied his request for a
continuance to find a new expert.
1. Procedural Background
Appellant faced trial twice. Before the first trial, he was granted in propria
persona status with standby counsel. He requested and was appointed Dr. Krell from the
Los Angeles County Superior Court’s criminal expert panel as a ballistics expert. The
prosecution moved to exclude Dr. Krell’s testimony from the first trial as irrelevant
because the prosecution was not intending to offer any evidence on ballistics. The
prosecutor explained a casing was found 15 feet away from the door of the apartment and
a live round was found in the gutter, but no gun was ever recovered and therefore no
testing was done linking the bullet or casing to the weapon used in the shooting. Even so,
appellant raised a concern that there had been prior “testimony” that the bullet struck the
ground and caused the hole in the screen door. The prosecutor explained a detective who
went to the crime scene had reached “some conclusions” in a police report about how the
6
bullet might have produced the marks in the asphalt and a hole in the screen, but she did
not intend to introduce that evidence, or again, any ballistics-related information. The
court deferred ruling until the close of the prosecution’s case and prohibited appellant
from mentioning Dr. Krell’s testimony in his opening statement. Appellant objected.
Appellant raised the issue again later, and the court adhered to its ruling, specifically
noting it was not addressing Dr. Krell’s qualifications. The court never revisited these
issues because appellant relinquished his in propria persona status after two witnesses
testified, his standby counsel was appointed, and the court granted his motion for a
mistrial.
After the mistrial, another judge in the Los Angeles Superior Court excluded
Dr. Krell’s testimony from a criminal case because he was not qualified to give opinions
on reconstruction of a shooting from a vehicle and bullet trajectory, among other reasons.
About six months later, on the day before appellant’s second trial was set to begin
on April 3, 2014, the prosecution filed another motion to exclude Dr. Krell’s testimony.
The prosecution explained that, after the first mistrial, Moody visited the scene of the
shooting and concluded the impact in the door was consistent with the passage of a bullet.
The prosecution intended to introduce Moody’s testimony along with a .45-caliber bullet
found several feet from the front door (although the bullet was never introduced), but did
not intend to introduce evidence of any markings on the asphalt. On that basis, the
prosecution argued Dr. Krell’s testimony was irrelevant and he lacked expertise as found
by the judge in the criminal case noted above. The prosecution also attacked many of the
59 slides Dr. Krell intended to use during his testimony.
That same day, defense counsel (who had been appellant’s standby counsel in the
first trial) complained to the court he was “sandbagged” by the motion. He noted
appellant was unrepresented by counsel in the first trial, and the prosecution had moved
to exclude Dr. Krell’s testimony from the first trial only as irrelevant, not because he was
unqualified. Defense counsel argued exclusion of Dr. Krell’s testimony would deprive
appellant of a “crucial defense,” i.e., “testimony about ricochets and about a hole in a
screen door, about whether or not it could have been caused by a bullet, and certain other
7
testimony that would be crucial to his defense.” He complained if the court excluded
Dr. Krell, he would be unable to find another expert and prepare him or her to testify. He
also noted Dr. Krell had not informed him of the ruling by the judge in the other criminal
case months earlier. He requested the court discharge the jury and return the case to the
pretrial stage to address the motion.
The court stated, “The bottom line is where are you going to find a ballistics
expert, or any expert, even if the court were to afford you the time, to say that a person
did not intend to shoot an individual because he’s a bad shot? [¶] The person could
intend to shoot an individual and just be an entirely bad shot. Unless you can prove that
[appellant] is an expert marksman . . . .” Defense counsel responded, “[T]he bullet hole
is about 1 foot above the bottom of the screen door— [¶] . . . [¶] —and the only way
that bullet hole could be there, if it is a bullet hole, would be by a ricochet. [¶] Dr. Krell
went out there and trajectory-rodded the ricochet, and it showed that the ricochet would
have to be very steep, and if [appellant] were shooting, he would have to be virtually
standing next to the victim, Cameron Stewart.” Defense counsel clarified appellant’s
defense was going to be that he never had a gun and never shot it, and Dr. Krell’s
testimony would support that position. On that basis, the court viewed the ricochet
testimony as irrelevant, but it planned to permit Moody to testify the hole in the screen
door was from a bullet.
The prosecutor claimed she had notified defense counsel about Dr. Krell’s lack of
qualifications several months earlier in January 2014. Defense counsel did not deny that
notice, but countered that the prosecutor only expressed concerns about Dr. Krell’s
“reputation, not lack of qualifications.” The court expressed doubt about Dr. Krell’s
expertise to opine that the hole in the door could not have been made by appellant
shooting from 20 feet away, given his background was in “trajectories with respect to
missiles.” The court also noted Dr. Krell was listed on the Los Angeles County Superior
Court’s criminal expert panel as an expert in “firearms operations, classifications, and
safety,” not ballistics. Defense counsel disagreed. The prosecutor affirmed she would
8
not introduce any evidence of a ricochet and none of the witnesses would testify to a
ricochet.
The court held a full hearing on the motion the next day after the jury was
empaneled but before starting trial. Defense counsel changed his position and stated
appellant’s defense would not be that he never had a gun. The court explained its
understanding that the prosecution would not offer evidence of a ricochet, so it was
challenging Dr. Krell’s testimony as irrelevant and unqualified on the subjects of
“ballistics and/or criminology or as a crime scene expert.” The court also noted the
ruling in the other criminal case excluding Dr. Krell’s ballistics opinions. The court was
inclined to find Dr. Krell’s testimony relevant because the prosecution intended to offer
ballistics evidence that it did not plan to introduce in the first trial, but it questioned
Dr. Krell’s qualifications.
Dr. Krell testified in detail to his qualifications and proposed opinions. According
to him, he was placed on the Los Angeles County Superior Court’s criminal experts panel
in the section on “firearms operations, classifications and safety in the specific areas of
ballistics, firearms ID, firearms safety and assault weapons law.” He understood he was
qualified as an expert on bullet trajectory and ricochet as part of “ballistics.” He had
never worked in a crime lab but he taught a day of ballistics to every sniper class for two
years at Marine sniper school. He had a PhD in applied mathematics and had worked for
the government with top secret clearance. His knowledge of ballistics was “a
combination of self taught and actual experience applying ballistics both to firearms
training, teaching snipers and working on defense systems.” He had testified 25 or 30
times as an expert and was qualified as a ballistics expert 15 or 20 times. He also had
expertise on bullet ricochets as part of ballistics.
He was questioned on a detective’s report that the hole in the screen was the result
of a double ricochet, and he opined that was impossible. He explained he went to the
location of the shooting and examined the hole in the screen. He dropped a trajectory rod
into the hole to allow it to settle into the orientation of the hole. The hole was just over
one foot from the ground with an upward trajectory of 50 degrees, an “extremely steep”
9
angle. He found no areas that could have caused the bullet to follow that upward
trajectory and could find no rational explanation for how that angle could have been
produced by someone shooting low from 15 or 20 feet away. Instead, the angle would
have been slightly downward. He attempted to test the angle on asphalt with a .45-
caliber firearm and produced an angle of 8.8 degrees. At a 50-degree angle, the bullet
would have broken into pieces in the asphalt. He also measured the hole and opined it
was smaller than what a .45-caliber bullet would produce.
On cross-examination, he testified he relied on the rod in the hole for his
measurements, not any markings on the asphalt. The court asked whether the
measurement would be different between a rod settling in the hole due to gravity and a
bullet shot from a firearm, and he responded the rod was “measuring what the bullet had
already done in the hole.” He said he used the rod to calculate the angle of the bullet. He
concluded there was no ricochet because, if the bullet had ricocheted, it would have done
so at an impossible angle to produce the upward angle of the hole. He ultimately
concluded the hole was not caused by a bullet at all because “the only other way that
there could be a bullet hole there is if the person were shooting in that direction, and the
hole would have been downward, not upward.” In response to questioning about the size
of the hole, he maintained his opinion it was too small for a .45-caliber bullet. He did not
chemically test the hole.
The court then questioned him about his qualifications. He had no training from
the sheriff’s department, the FBI, the Los Angeles Police Department, or the Department
of Justice. He had never taken a class on crime scene reconstruction and was not
certified in the area, although he had “just done a lot of it.” He was listed on the Los
Angeles County Superior Court’s criminal expert panel for firearms operations,
classifications, and safety, which he claimed included ballistics. The court pointed out
this case involved trajectory and “[b]allistics only incorporates a certain amount of the
subject of trajectory.” The court asked, “[H]ow did you become an expert in ballistics,
other than you working for the defense systems at one point and inputting or encoding the
trajectory of missiles, not bullets?” He responded, “I have done dozens of ballistics
10
studies for the Department of Defense on contract,” but admitted none of them involved
bullets. The court noted his expertise was “self-taught.” He added, “[w]ith practical
experience, yes.”
Defense counsel argued a self-taught expert can be qualified and, given Dr. Krell’s
testimony in other cases on trajectory and ballistics, “it would be ludicrous not to allow
him to testify.” Defense counsel believed he was a “crucial witness” for the defense.
The prosecutor did not doubt he had expertise in firearms operations, classifications, and
safety, but she argued he had no training in ballistics and had not qualified as a
criminalist or a crime scene reconstruction expert. “The fact that he goes out to the scene
and conducts his own experiments does not make him an expert, particularly where he
has no training in that regard.”
The court excluded his testimony because he was unqualified in the area of bullet
trajectory. It noted a number of his conclusions were based on speculation and “assume a
lot.” It explained he had no training, had never taken a class on crime scene
reconstruction, and was not certified in that area. Although an expert could be self-
taught, Dr. Krell did not address the circumstances under which that occurred. While he
was listed in the Los Angeles County Superior Court’s criminal expert panel for firearms
operations, classifications, and safety, “there’s no evidence that he has any specialized
training with respect to forensic criminology and trajectory, other than his stint with the
defense department and measuring and encoding into the computer, the trajectory of a
certain missile or missiles, not bullet[s] or things fired from a firearm.” The court also
noted his degrees in mathematics, English, management, economics, operations research,
and statistics, but found he lacked the “appropriate foundation and/or expertise to permit
this testimony on the subject of ballistics forensics or bullet trajectory and/or crime scene
reconstruction.”
The court denied a continuance so defense counsel could locate another expert due
to the prosecution’s alleged insufficient notice, reasoning, “The whole purpose of the
[Evidence Code section] 402 pretrial motion and motions in limine are precisely designed
and appropriate—and the appropriate apparatus, I should say, to challenge, among other
11
things, qualifications of a proposed expert witness. [¶] At the end, it remains that the
defense opted for and selected this particular witness, Mr. Krell.”
The court indicated it was going to hold the prosecution to its representation that it
would not present evidence of a ricochet unless defense counsel wanted to question the
prosecution’s expert on that area. The court would also allow defense counsel to cross-
examine the prosecution’s expert on the size and angle of the hole and whether it could
have been made from where the appellant was standing according to the witnesses. At
the end of the hearing, defense counsel again argued he was never told about the
prosecution’s challenge to Dr. Krell’s qualifications, but only about his “reputation.”
After Moody testified at trial, appellant moved for a mistrial. Defense counsel
argued Moody testified “completely opposite” of Dr. Krell and opined that everything
Dr. Krell had said was “basically, wrong.” He also noted Moody did not say in her
expert report that she could not measure the hole with a trajectory rod, only that the angle
was slightly upward. The court denied the motion, reiterating its ruling that Dr. Krell was
not qualified to give opinions on those issues, and “the court, having found that he was
not an expert in that area, cannot then use that to compare it to what the criminalist,
Ms. Moody, testified to.”
About a month after trial and six weeks before sentencing, appellant filed a written
new trial motion, reiterating his arguments that Dr. Krell was qualified and the court
should have granted a continuance. He did not indicate whether he had made efforts to
locate a new qualified expert who would give opinions favorable to his case.
In opposition, the prosecution stood by its prior contentions Dr. Krell was not
qualified, and provided more detail surrounding its notice to appellant. The prosecutor
explained that in February 2014, she had received an e-mail from Moody indicating
Dr. Krell had left her a message requesting she walk through her crime scene analysis.
Moody explained criminalists in the Los Angeles Police Department normally do not
meet with defense experts, and she expressed concerns about Dr. Krell in particular due
to inaccuracies in his work, his reputation in the community, and “a specific instance
where he characterized a brief contact with law enforcement as part of his training and
12
experience.” The prosecutor left a message for defense counsel to advise Dr. Krell to
direct all inquiries to her. When defense counsel sought to arrange a meeting with
counsel, Dr. Krell, and Moody at the crime scene, the prosecutor declined. She “relayed
the concerns articulated by [Moody] about Mr. Krell and mentioned the fact that Krell
had been excluded as an expert witness in the San Fernando courthouse.” She explained
the prosecution had been preparing a challenge to Dr. Krell’s qualifications due to rulings
on his lack of qualifications by other judges, and defense counsel could have discovered
those recent rulings “upon simple inquiry of the expert himself.”
In denying the motion, the court noted the motion appeared “to allege, basically, in
a nutshell, that the expert was prepared to offer testimony in order to negate the specific
intents associated with the original charge of the attempted murder and/or that the
defendant did not discharge the firearm in question. [¶] However, the defendant
admitted discharging a firearm by his own testimony in trial. Of course, he disputes that
he ever fired at the door in question, or the screen door, but rather fired in the air. But he
admits that he discharged the weapon, nonetheless. [¶] In addition, in the end, the jury
did not find that the attempted murder charge was true. So whatever evidence Mr. Krell
could have offered, even if it is assumed for argument’s sake that his testimony should
have been allowed, is harmless.”
2. Exclusion of Dr. Krell’s Testimony
“‘California law permits a person with “special knowledge, skill, experience,
training, or education” in a particular field to qualify as an expert witness (Evid. Code,
§ 720) and to give testimony in the form of an opinion (id., § 801).’” (People v. Vang
(2011) 52 Cal.4th 1038, 1044.) “The qualification of expert witnesses, including
foundational requirements, rests in the sound discretion of the trial court. [Citations.]
That discretion is necessarily broad: ‘The competency of an expert “is in every case a
relative one, i.e. relative to the topic about which the person is asked to make his
statement.” [Citation.]’ [Citation.] Absent a manifest abuse, the court’s determination
will not be disturbed on appeal.” (People v. Ramos (1997) 15 Cal.4th 1133, 1175
(Ramos).)
13
We find no abuse of discretion here. The trial court carefully delineated the
relevant areas of expertise—bullet trajectory and crime scene reconstruction. Then, after
hearing Dr. Krell’s detailed testimony on his qualifications and opinions, it found he had
no certification or formal training from any law enforcement agency in the relevant areas,
and he was certified on the Los Angeles County Superior Court’s criminal expert panel
only in the areas of firearms operations, classification, and safety. His background in
trajectory and crime scene reconstruction was based entirely on his experience and self-
teaching. While that might suffice in some circumstances to qualify an expert to opine in
a particular area, the trial court specifically noted it had little information on the
circumstances surrounding Dr. Krell’s self-teaching and experience. The information it
did have showed his practical experience appeared to be in the area of missile trajectory,
which the trial court reasonably concluded was not relevant to giving an opinion on bullet
trajectory. While he also taught a day of ballistics to every sniper class for two years at
Marine sniper school, he provided no details on what exactly he taught or how he
prepared himself to teach those classes. Moreover, the trial court had before it at least
one ruling from another judge excluding Dr. Krell’s expert opinions on ballistics due to
lack of qualifications.3 Against this record, we cannot say the trial court exceeded its
broad discretion to find him unqualified to render his opinions on bullet trajectory and
crime scene reconstruction. We have reviewed appellant’s contrary arguments and find
them unpersuasive.
We also find, on this record, the trial court’s exercise of discretion did not violate
his constitutional rights. (Ramos, supra, 15 Cal.4th at p. 1176 [trial court’s exercise of
discretion excluding defense expert was consistent with constitutional principles].)
3. Denial of Continuance
“[T]he trial court has broad discretion to determine whether good cause exists to
grant a continuance of the trial. [Citation.] A showing of good cause requires a
3 We granted judicial notice and have reviewed the lengthy transcript of the hearing
on Dr. Krell’s testimony in that case.
14
demonstration that counsel and the defendant have prepared for trial with due diligence.”
(People v. Jenkins (2000) 22 Cal.4th 900, 1037.) To obtain a continuance to secure a
witness’s attendance, “the defendant must establish ‘he had exercised due diligence to
secure the witness’s attendance, that the witness’s expected testimony was material and
not cumulative, that the testimony could be obtained within a reasonable time, and that
the facts to which the witness would testify could not otherwise be proven.’ [Citation.]
The court considers ‘“not only the benefit that the moving party anticipates but also the
likelihood that this benefit will result, the burden on other witnesses, jurors, and the court
and, above all, whether substantial justice will be accomplished or defeated by a granting
of the motion.”’” (Ibid.)
Because the grant or denial of a continuance is discretionary, a defendant bears the
burden to show “‘an abuse of discretion, and an order denying a continuance is seldom
successfully attacked. [Citation.] [¶] Under this state law standard, discretion is abused
only when the court exceeds the bounds of reason, all circumstances being considered.
[Citations.] Moreover, the denial of a continuance may be so arbitrary as to deny due
process. [Citation.] However, not every denial of a request for more time can be said to
violate due process, even if the party seeking the continuance thereby fails to offer
evidence. [Citation.]’” (People v. Fuiava (2012) 53 Cal.4th 622, 650.)
We find no abuse of discretion in denying a continuance here. We certainly
understand appellant’s predicament when the prosecution moved the day before trial to
exclude Dr. Krell, and the court excluded his testimony and immediately began trial. If
that were the first time appellant had been notified of the issues surrounding Dr. Krell’s
qualifications, appellant would have had no time to find a replacement expert. Nor do we
think it was necessarily fair for the trial court to lay blame at appellant’s feet by saying,
“At the end, it remains that the defense opted for and selected this particular witness,
Mr. Krell.” Dr. Krell was initially appointed from the Los Angeles County Superior
Court’s criminal expert panel while appellant was pro se, and the prosecution did not
challenge his qualifications in the first trial, opting instead to pursue a trial theory that
rendered his opinion irrelevant.
15
With that said, however, there was evidence appellant was notified several months
before trial that the prosecution was questioning Dr. Krell’s qualifications, which came
on the heels of another judge excluding Dr. Krell’s testimony in a criminal case for a
similar lack of ballistics expertise. Dr. Krell himself could have disclosed to appellant
and defense counsel that he had been excluded from another trial as a ballistics expert.
Although defense counsel claimed he only had notice the prosecutor was questioning
Dr. Krell’s “reputation,” the court implicitly credited the prosecutor’s representations,
which provided sufficient notice for defense counsel to prepare for the possibility
Dr. Krell would be excluded from trial. (See People v. Gonzalez (2005) 126 Cal.App.4th
1539, 1548 [prior notice of prosecution’s gang expert resulted in waiver of right to
continuance to seek defense gang expert].)
Perhaps more important, even if appellant did not receive adequate notice, he has
not shown he would have benefitted from a continuance. At no point in the trial court or
on appeal has appellant suggested he could have found a qualified expert who would
have shared Dr. Krell’s opinions. (See People v. Howard (1992) 1 Cal.4th 1132, 1171
(Howard) [continuance not warranted when “defendant did not show that any expert
existed who would be willing and able to offer material testimony within a reasonable
time”].) This is particularly troubling here, given the trial court found Dr. Krell lacked
the expertise to give his opinions favoring appellant. That raises the question whether
any qualified expert would have been able to give the same opinions.
For these reasons, we think substantial justice was served by moving forward with
trial. Despite denying a continuance, the court held the prosecution to its representation
that it would not argue the bullet ricocheted, which the prosecutor heeded, even though
Moody testified a ricochet was possible and other witnesses testified a ricochet occurred.
Nor did the court restrict appellant’s ability to cross-examine Moody on her opinions. On
the other hand, a continuance would have engendered significant delay, placing burdens
on the court, the witnesses, and the jury (presuming the jury could even remain
empaneled). Thus, there was no abuse of discretion.
16
We also conclude, under these facts, the denial did not violate appellant’s
constitutional rights. “‘[N]ot every denial of a request for more time . . . violates due
process even if the party fails to offer evidence or is compelled to defend without
counsel.’” (Howard, supra, 1 Cal.4th at pp. 1171-1172 [lack of diligence and failure to
show a timely qualified expert could be found defeated any claim of constitutional error];
see People v. Jenkins, supra, 22 Cal.4th at pp. 1039-1040.)
DISPOSITION
The judgment is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
17