People v. Luparello

*418 Opinion

Thomas Gaetano Phillip Luparello and Carlos Orduna appeal respective judgments convicting them of conspiracy to commit an assault by means of force likely to produce great bodily injury (Pen. Code, 1 §§ 182, subd. 1, 245) and murder (§ 187) and finding a firearm allegation to be true (§ 12022, subd. (a)). Orduna was also found to have intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) On appeal, Luparello contends the prosecutor’s conduct was improper, he was ineffectively assisted at trial, hearsay evidence was improperly admitted, the jury was misinstructed, complicity theories cannot support his charged criminal liability, and his convictions are not supported by the evidence and resulted in cruel or unusual punishment. Orduna similarly alleges prosecutor misconduct, instructional error, improper application of complicity doctrine, insufficiency of the evidence, and cruel or unusual punishment. Additionally, he contends his motion to sever was improperly denied and the jury was biased. For the reasons set out below, we reject both defendants’ contentions and affirm.

Factual and Procedural Background

Luparello practiced chiropractics and Terri Cesak was his patient. Luparello eventually hired Terri as a receptionist, and soon they began an affair. Under pressure from Luparello’s wife, Terri left her job in May 1980. Terri then met and shortly thereafter married Ed Gadzinski.

Luparello did not see Terri again until early 1981. At that time, both were having marital problems; Luparello was involved in the dissolution of his marriage. In early February, Terri apparently separated from her husband and returned to her job with Luparello. Her employment lasted for several weeks until Ed induced Terri to return home. She voluntarily stayed until the end of March, when she returned to work and moved into Luparello’s house. Luparello then had three other roommates: Brad Wilson, Ben Wilson and Ron Jennings.

On May 8, 1981, Luparello went to San Francisco to confer with counsel about his divorce. Later that same day, Terri moved her belongings from Luparello’s house and reconciled with her husband. After storing their possessions in several locations, Terri and Ed established a new residence in a different county. At this time, Terri was pregnant with Luparello’s child.

Luparello called home on May 9 and a roommate told him Terri had left. Luparello returned immediately and began an intensive search for Terri. He *419 contacted the police, personal friends, and relatives of both Terri and Ed, and requested a patient to go to Ed’s workplace and follow him home. On the evening of May 11, Luparello met with Orduna, who was also Luparello’s patient, and Johnny Salmon at his house. He stated he wanted Orduna and Salmon to help find Terri. Luparello, Orduna and Salmon were joined by Ben Wilson, Luparello’s roommate, and the four drove to Orduna’s house. On the way, Luparello and Salmon discussed the cost for Orduna’s and Salmon’s services. Ben saw Luparello give Salmon $40, and Luparello later told Ben the total cost would be $200.

Luparello also personally continued to search for Terri. He hoped to elicit information from Mark Martin, a good friend of Terri’s husband and best man at Terri and Ed’s wedding. At about 8 p.m. on May 13, Luparello, Brad Wilson, Orduna, Salmon and a person identified as “Spooky” gathered at Luparello’s house. In talking to Luparello and Orduna, Salmon stated they were going to “thump” the person from whom they wanted information. Orduna agreed with Salmon. Luparello remarked he would like the information at any cost. At this time, Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello. Thereafter Luparello, Orduna, Salmon and “Spooky” left the house, taking the weapons, though not the rifle, with them. After 35 minutes the group returned, picked up Brad Wilson, and drove to Mark Martin’s house. Orduna, Salmon and Brad Wilson got out of the car and approached Martin’s house. Orduna and Salmon were carrying their respective weapons. Orduna and Salmon instructed Brad to lure Mark Martin from his house and they would beat him. Brad, however, refused to do so. When Martin came to the door, Brad asked only if he knew Terri’s whereabouts. Orduna and Salmon, who were waiting in the shadows at the sides of the house, later chided Brad for not getting Martin to leave his house.

On the next evening, May 14, 1981, Brad Wilson returned home to find Orduna and Salmon inside. They were again armed with a sword and nunchakus, respectively. Luparello was present, but was making a telephone call at the time. After 15 or 20 minutes, Orduna and Salmon left. Approximately two hours later, Orduna knocked on the door of Mark Martin’s house. When Martin, who owned an automotive machine shop, came to the door, Orduna asked whether he would look at Orduna’s car which was parked in the street. After Martin stepped out of his house, Orduna quickly backed away. Someone in or near the parked car, the engine of which was running, fired six shots at Martín and he fell to the porch and died. Orduna ran to the car, and he and his companion drove off.

Luparello and Orduna were charged with conspiracy to commit an assault by means of force likely to produce great bodily injury (§§ 182, subd. 1, *420 245) and murder (§ 187) and were alleged to have intentionally killed Martin while lying in wait (§ 190.2, subd. (a)(15)) and to have been armed with a rifle during the commission of the above offenses (§ 12022, subd. (a)). After a joint trial, the jury found Luparello and Orduna guilty on both counts and the allegations the defendants were armed to be true. The special circumstance allegation was found true as to Orduna, but not Luparello.

After losing a new trial motion, Luparello was sentenced to 25-years-to-life imprisonment for first degree murder and received an additional year for being armed with a rifle. His three-year conspiracy sentence, however, was stayed. In the penalty phase of the proceedings, the jury determined Orduna should suffer life imprisonment without possibility of parole. In turn, Orduna moved under section 1385 to dismiss the special circumstance finding. After considering a number of factors and determining the interests of justice did not warrant such a harsh penalty, the trial court granted the dismissal and sentenced Orduna to 25-years-to-life imprisonment for first degree murder and enhanced the sentence by one year because Orduna had been armed. His conspiracy sentence was similarly stayed.

Luparello’s Appeal

I

Prosecutorial Misconduct

A prosecutor,is not merely an advocate for the People. “His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial, ...” (In re Ferguson (1971) 5 Cal.3d 525, 531 [96 Cal.Rptr. 594, 487 P.2d 1234].) In performing this duty, he or she is not limited to Chesterfieldian politeness or restraint and may vigorously argue the case. (People v. Fosselman (1983) 33 Cal.3d 572, 580 [189 Cal.Rptr. 855, 659 P.2d 1144].) Fervor, without more, does not implicate an impropriety. Prejudicial misconduct arises when the prosecutor uses “deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (People v. Strickland (1974) 11 Cal.3d 946, 955 [114 Cal.Rptr. 632, 523 P.2d 672].) Here, Luparello alleges four distinct instances of such conduct. He concedes each instance “in isolation might not be considered ‘grossly improper’, [but] such misconduct, considered in aggregate, denied Appellant a fair trial and compels reversal of the judgment of conviction.” We begin by reviewing each allegation and then determining their cumulative effect, if any.

A. Improper References to Street Gang Membership

In setting out the conspiracy allegations, the original information stated Luparello knew Orduna to be a member of the “F-Troop” gang, an ethnic *421 street gang based in Orange County. Although all gang references were deleted from the amended information, the prosecutor sought, at trial, to admit evidence Orduna belonged to F-Troop and Luparello knew this and previously recruited him to assist in a neighborhood dispute. In an in limine hearing, the trial court questioned the relevance of this evidence but did not bar absolutely its admission. Instead, the trial court directed the prosecutor to alert the court to the impending introduction of this evidence and the court would rule on its admissibility at that time. Luparello argues the prosecutor disregarded this directive and cites several examples which, he alleges, prejudiced him.

Of the four examples proffered by Luparello, two involve no suggestion of gang membership but instead concern the prosecutor’s attempt to inform the jury regarding Orduna’s prior assistance in Luparello’s dispute with some neighbors. The first of these occurred during Brad Wilson’s direct examination. After the court sustained several defense objections and admonished the jury the particular line of testimony was admissible only to Luparello, the prosecutor continued; “. . . What was the substance of the conversation?

“A. That at a previous time—I’m unsure when—

“[Luparello’s Counsel]: Same objection.

“The Court: The objection is sustained as to the defendant Orduna. [11] You may proceed.

“Q. ... What was the substance of the conversation, where Dr. Luparello was indicating to you what Dr. Luparello’s previous relationship with Mr. Orduna was?

“A. He said that early in the year he had trouble with his neighbors across the street and that he had—I don’t know what to say, the exact words—used them or got their help in settling the dispute.

“Q. Referring to Mr. Orduna?

“A. Yes.

“[Luparello’s Counsel]: Object. Move to strike. Irrelevant. And the previous grounds. [11] It also appears to be speculation as to, as to who’s involved and what it is.

“The Court: The testimony will be stricken as to the defendant Orduna. The objection is sustained.”

*422 Later, during the testimony of Ben Wilson, the prosecutor elicited similar testimony: “Q. Didn’t he say to you, didn’t Dr. Luparello say to you that he felt Carlos and Johnny could take care of this problem at this time?

“A. Yes, Sir, he did.

66

“Q. . . . yes. Didn’t Dr. Luparello also tell you they had taken care of other problems and they were sure they could take care of this one, also?

“A. Yes.” Luparello immediately objected, asserting this query had violated the trial court’s directive regarding evidence of Orduna’s past acts. The trial court agreed but determined any wrongdoing could be remedied by permitting the neighbor involved in the alleged dispute to be called as a defense witness. Luparello’s counsel agreed this would resolve potential problems and the neighbor was called and testified favorably for Luparello.

We agree with the trial judge and Luparello’s trial counsel that any prejudice flowing from the prosecutor’s questions was greatly minimized by the neighbor’s testimony, which completely eliminated any suggestions of wrongdoing by Orduna in connection with the neighborhood dispute. Reversal on this basis is not required. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

On two other occasions, however, the prosecutor ignored the trial court’s earlier admonition and attempted to put before the jury evidence Orduna belonged to a street gang which was routinely involved in violent and threatening activities. In the first instance, the prosecutor questioned Martin’s neighbor who witnessed the shooting and asked whether he had been threatened sometime before testifying. The neighbor responded someone had written “FXTX Vida” on his van. In response to Luparello’s motion to strike, the prosecutor, out of the presence of the jury, interpreted the graffito as meaning “F Troop, Live or Die.” The trial court admitted the evidence, but admonished the jury to consider the evidence only in regard to the witness’s credibility. (See People v. Lybrand (1981) 115 Cal.App.3d 1 [171 Cal.Rptr. 157].)

This admission of marginally relevant evidence was later turned on its head when the prosecutor sought to take advantage of its inflammatory effect in his cross-examination of Police Officer Daniel McCoy who had been called as a defense witness for the purpose of testifying regarding statements made by Michael Martin, the victim’s brother, shortly after the shooting. Michael Martin was the person who had answered Orduna’s knock on May *423 14 and had called his brother to the door. Michael described the person he saw to Officer McCoy as “Mexican,” “five three to five five,” “kind of stocky,” and wearing a black or dark blue beanie “like the F-Troopers and Delhi guys wear.”

Perceiving that an opportunity had been thrust into his hands to get before the jury suggestive and prejudicial information which he had otherwise been prevented from introducing, the prosecutor cross-examined Officer McCoy as follows: “[Prosecutor]: You heard a reference in the tape—it’s on page 3 and it’s in the middle of the page on page 3—to F-Troopers. And the question was, ‘You talking about the beanie, the navy type beanie, the cloth beanie that goes over the head?’

“And then Mike’s answer was, ‘Like the F-Troopers and Delhi guys wear, yeah.’

“Is that right?

“A. Yes, Sir.

“Q. What type of experience have you had with this ‘F’ Troop gang?

“A. I spent five years—

“[Luparello’s Counsel]: I have to object to the relevance of saying ‘this “F” Troop gang.’

“The Court: Sustained.

“[Luparello’s Counsel]: I have no objection if the officer corroborates that that’s what a lot of them wear. But the way the question was phrased—

“The Court: The objection’s been sustained.

“[Prosecutor]: I’ll rephrase the question then, Your Honor.

“Q. What experience do you have with ‘F’ Troop, as a Santa Ana police officer?

“A. I was assigned to the street gang detail for five years and during that time conducted many investigations involving ‘F’ Troop.

“Q. What type of gang is ‘F’ Troop?

*424 “A. It’s a street gang.

“Q. Where are they located?

“[Luparello’s Counsel]: I have to object again. It’s not relevant to this case.

“[Prosecutor]: It certainly is, Your Honor.

“The Court: The objection is sustained.

“Q. Well, have you become aware of the type of hats that ‘F’ Troop gang members where [sz'c]?

“A. Well, their clothing, what they have worn, yes, sir.

“Q. What type of clothing does this ‘F’ Troop gang where [szc]?

“A. I’ve seen them wearing the beanies.

“Q. What other type of clothing do they wear?

“A. (No response.)

“Q. Like pants, do they wear khaki type pants?

“A. Yes, Sir.

“Q. Have you seen them wearing just plain t-shirts?

“A. Yes, Sir.

“Q. Do they wear any particular type of shoes?

“A. No, not a particular type but a variety.

“Q. Over what period of time have you had occasion to come in contact with ‘F’ Troop gang members in the City of Santa Ana?

“A. Over a five-year period.

“Q. And had you been investigating crimes that have been committed by these gang members?

*425 “A. Yes, Sir.

“Q. And you’ve been assigned to the crimes against persons detail at the Santa Ana police department; is that right?

“A. Yes, Sir.

“Q. That involves homicides and attacks against people?

“A. Yes, Sir.

“Q. Prior to that you were assigned to a gang detail specifically involving the apprehension of gang type warfare in Santa Ana?

“A. Yes, Sir.

“Q. Was it during this period of time that you became aware of this ‘F’ Troop gang?

“A. Yes, Sir.

“Q. Does the ‘F’ Troop gang—

“[Luparello’s Counsel]: I object. I move to strike the entire thing about ‘F’ Troop.

“[Prosecutor]: Your Honor, he brought it out.

“[Luparello’s Counsel]: There’s absolutely no relevance. The witness merely stated that the type of beanie was consistent with, in his opinion, ‘F’ Troop or the Delhi guys and from that a line of irrelevant questions is being asked. Object. Move to strike what’s in so far.

“The Court: Well, the objection to this question, the court will rule on it when counsel finishes the statement. Or the question.

“[Prosecutor]: Fine. Thank you, Your Honor.

“Q. . . . Does F-X-T-X signify the ‘F’ Troop gang?

“A. Yes, Sir.

“The Court: Then the objection to that question will be sustained. The answer is stricken.

*426 “I take it you still had your objection?

“[Luparello’s Counsel]: Yes.”

In this manner, the prosecutor used a relatively innocuous description of a type of head gear worn by the man who knocked at Martin’s door and began a foray based consistently on leading questions in which he attempted to inform the jury by innuendo not only that F-Troop was a street gang whose members were suspected of committing homicides and other violent attacks on persons, but also that the gang was likely connected to the case in such a way that its members had threatened a material witness.

The People seek to justify the prosecutor’s conduct on the theory that defense counsel “opened the door” by introducing Michael Martin’s taped statement which included the “F-Troop” reference. The fact that a topic is raised on direct examination and may therefore appropriately be tested on cross-examination, however, does not amount to a license to introduce irrelevant and prejudicial evidence merely because it can be tied to a phrase uttered on direct examination. Here, the prosecutor’s attempt to cast Orduna as a member of a violent gang was irrelevant for any purpose other than to suggest Orduna’s predisposition to commit violent acts, a purpose specifically prohibited by Evidence Code section 1101, subdivision (a). (People v. Perez (1981) 114 Cal.App.3d 470, 477 [170 Cal.Rptr. 619]; see also In re Wing Y. (1977) 67 Cal.App.3d 69, 79 [136 Cal.Rptr. 390].)

While the court’s sustaining of defense objections and striking of testimony suggested it did not condone such conduct, the flagrancy of the prosecutor’s misconduct makes it highly unlikely that even a conscientious jury could completely ignore what it had heard. (See People v. Taylor (1961) 197 Cal.App.2d 372, 382 [17 Cal.Rptr. 233]; see also People v. Kirkes (1952) 39 Cal.2d 719, 726 [249 P.2d 1].) On the other hand, we must recognize that the prejudicial effect of inadmissible gang membership evidence lies in its tendency to suggest that a defendant is the type of person predisposed to commit violent acts of the type engaged in by the gang to which he belongs. (See People v. Cardenas (1982) 31 Cal.3d 897, 905 [184 Cal.Rptr. 165, 647 P.2d 569] (plur. opn.); People v. Perez, supra, 114 Cal.App.3d at p. 477.) Here, the evidence surrounding the planning and preparation for the assault on Mark Martin adequately demonstrated Orduna’s willingness to use weapons and engage in acts of violence. (See ante, p. 419.) In this context, evidence connecting Orduna to a violent street gang—although hardly desirable from Orduna’s or Luparello’s point of view—did not have the impact it might otherwise have had. Moreover, while the prosecutor’s misconduct firmly implanted in the jurors’ minds that F-Troop was a violent gang, the evidence of Orduna’s membership in the gang *427 was tangential. In an attempt to minimize the effect of the prosecutor’s misconduct, the court was careful to instruct the jurors “. . . that there [was] no credible evidence in this case that Carlos Orduna was a member of any criminally oriented gang.”

California appellate courts have repeatedly recognized that even flagrant misconduct by a prosecutor does not relieve them of their obligation to ascertain whether the misconduct resulted in a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution. (See, e.g., People v. Hamilton (1963) 60 Cal.2d 105, 120-121 [32 Cal.Rptr. 4, 383 P.2d 412]; People v. Wirth (1960) 186 Cal.App.2d 68, 78 [8 Cal.Rptr. 823].) Under the circumstances of this case, we do not believe that the gang membership evidence which was improperly placed before the jury makes it reasonably probable that the jury would have reached a different verdict in the absence of the misconduct. (See People v. Munoz (1984) 157 Cal.App.3d 999, 1013 [204 Cal.Rptr. 271].)

B. Bad Faith Inquiry

Ben Wilson testified on direct examination by the prosecutor that Luparello told him he paid $200 for the assistance of Orduna and Johnny Salmon. The prosecutor was apparently aware that informers who had been incarcerated with Salmon stated he told them he was paid $800 up front and was to receive $10,000 for beating Mark Martin and another $15,000 as a bonus for killing him. During a break in Ben Wilson’s testimony, the respective counsels discussed in camera the possibility of admitting the informers’ statements, and the trial court indicated its preliminary view that such evidence was inadmissible, the final decision to be reached at a later hearing. 2

Thereafter the prosecutor resumed his questioning of Ben Wilson as follows: “Q. Now, do you recall Dr. Luparello ever telling you that he had paid Johnny Salmon $800 up front?

“A. No, Sir, I do not.

“Q. And that he was to get a total of $10,000—.” Luparello’s counsel objected, challenging the leading nature of the question and the prosecutor’s good faith in asking it. The court agreed with defense counsel and, after a *428 voir dire examination of Wilson in chambers, prohibited the prosecutor from continuing his line of questioning. The court and defense counsel then agreed to forego any admonition to the jury on the theory it would merely draw attention to the point.

We are troubled by the prosecutor’s attempt to use his questioning to get before the jury information he could not legitimately introduce directly through the testimony of the informers. (See People v. Perez (1962) 58 Cal.2d 229 [23 Cal.Rptr. 569, 373 P.2d 617]; People v. Blackington (1985) 167 Cal.App.3d 1216 [213 Cal.Rptr. 800].) We cannot conclude, however, that such conduct requires reversal. The suggestion contained in the prosecutor’s question merely disagreed in amount with facts already admitted by Wilson. The jury was properly instructed pursuant to CALJIC No. 1.02 that questions asked by counsel are not evidence and are not to be considered as such. In no sense can it be considered reasonably probable that a different result would have been reached in the absence of the misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836.)

C. Misconduct During Closing Argument

Luparello asserts the prosecutor unacceptably and inflammatorily compared him to Charles Manson and unconstitutionally commented on Luparello’s failure to testify, In reference to the first allegation, we note the prosecutor may broadly argue the facts and law of a case but may not prejudicially misrepresent the character of the accused nor intentionally appeal to the fears and emotions of the jury. (People v. Fosselman, supra, 33 Cal.3d at pp. 580-581; People v. Jones (1970) 7 Cal.App.3d 358, 362-363 [86 Cal.Rptr. 516].) In discussing the instruction on aiding and abetting, the prosecutor stated: “So this is one who aids and abets. One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are committing, but he’s also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.

“If one person sets in motion some people that are out of control and they go in and start killing people—

“An example might be, and we talked about it, is the Charles Manson case type of thing. Charles Manson is a classic example of the aider and abettor. He apparently wasn’t present at any of the crime scenes. Yet he set in motion some people that were just out of control. And they killed and maimed at will. Yet Charles Manson was responsible for those particular crimes.

*429 “And he’s responsible under theories such as this one here where even though the person didn’t intend that a particular crime be committed, that person is liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.

“So if you send some—I hate to use the word ‘crazy’ because it’s got different meanings in the criminal law. But if you send some people that are completely out of control to go do something, and it’s reasonable and probable that they will get carried away and execute someone, then you’re guilty, just as guilty as they are, of that execution.”

Luparello did not properly preserve his challenge to this argument by objection below. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468].) In any event, the prosecutor’s comments were neither erroneous nor prejudicial. His reference to Charles Manson provided a proper, albeit provocative, example of the workings of an aider and abettor theory. The comments neither expressly or impliedly parallel Luparello’s character to that of Charles Manson. Mere reference is not an impassioned plea aimed at the jury’s fears and anxieties.

Luparello further asserts the prosecutor’s following argument violates the rule of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], which prohibits comment on the defendant’s exercise of his constitutional right not to testify: “Now with respect to Mr. Chatterton [Luparello’s counsel], a number of places here Mr. Chatterton has indicated to us that—at one time Mr. Chatterton indicated that Dr. Luparello wouldn’t have wanted to tell Brad that, referring to something, I don’t know what he’s referring to offhand. One time Mr. Chatterton indicated that, either in argument or in the opening statement, that Dr. Luparello lied to the police because of Kelly Schwulst’s statement to him.

“Another time Dr. Luparello asked Brad to go to the door at the Martin house because Brad wouldn’t be involved in that, in a beating, says [sic]. That’s why Dr. Luparello asked Brad to go to the door. Remember that?

“Another time—what do you think Dr. Luparello believed with respect to whether Brad would lie or not?

“All of those questions and statements suffer from the same problem. There is no evidence in this case whatsoever as to what Dr. Luparello was thinking about why Dr. Luparello asked Brad to do this, what Dr. Luparello heard from anyone other than what we heard in the case. What Dr. Luparello thought because Kelly called him. No evidence of that. Any evidence of *430 what was going on in Dr. Luparello’s mind with respect to that is just rank speculation.

“We talked about this early on. Everything that is an inference from the facts has to be established by the facts. What are the facts? This is an important issue in this case. Why did Dr. Luparello lie so much to the police? Mr. Chatterton’s answer is because of what Kelly Schwulst had told him. Does that wash in your mind?

“One, there is no evidence whatsoever that that was what caused Luparello to lie to the police. That’s just speculation by Mr. Chatterton. The only thing that we have in that respect is that Kelly did tell him that. So apply that in your experience.”

While it is undisputed “Griffin prohibits reference to a defendant’s failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence . . . .” (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213]; accord People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal.Rptr. 15, 509 P.2d 959].) Here, the prosecutor neither comments directly on Luparello’s failure to testify nor indirectly encourages the jury to speculate about his silence. He instead properly reviews critical aspects of the defense theory relative to Luparello’s mental state and points out the dearth of evidence to support the theory. Luparello’s testimony was not necessarily the only material evidence on this point. That he did not testify and did not choose to proffer other relevant evidence does not preclude the prosecutor from illuminating this deficiency. The prosecutor’s comments are not Griffin error.

D. Delay of Trial

On October 6, 1981, all parties stipulated the trial would recess during the trial judge’s previously scheduled vacation and would reconvene on November 4, 1981. However, on November 4, the prosecutor could not proceed in the instant case because he had become unexpectedly involved with another murder trial. The prosecutor requested the instant trial be continued until November 23, 1981. After a hearing, the trial court granted the request. Luparello now argues this “delay” denied him a speedy trial and is another ground for misconduct. We find no merit in this contention.

Luparello cites People v. Hannon (1977) 19 Cal.3d 588 [138 Cal.Rptr. 885, 564 P.2d 1203], for the proposition the “constitutional right to a speedy trial may be violated by prejudicial delay resulting from intentional efforts to harass or oppress a defendant or simply the neglect of the state or its *431 officers.” {Id. at p. 609.) However, Hannon dealt exclusively with pretrial delay and has no relevance to the instant case. Indeed, even assuming the cited language did apply, Luparello’s assertion would still fail. He has not shown, nor does the record reveal, the prosecutor intentionally or negligently delayed the instant proceedings. As was determined at the trial court’s hearing on this matter, the delay resulting from the prosecutor’s conflicting commitments was unavoidably unforeseeable.

In reviewing Luparello’s allegations of misconduct, individually and collectively, while we find error, we find no significant prejudice to him.

II

Ineffective Assistance of Counsel

The charge of inadequate assistance at trial is a serious one, and the appellant has the burden of proving his claim. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859].) “[I]n cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Fosselman, supra, 33 Cal.3d at p. 584.) Further, “[Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses counsel had no rational tactical purpose for his act or omission.” (Id. at p. 581.) Luparello grounds his complaint in his counsel’s failure to oppose the People’s motion to dismiss and his later failure to seek dismissal when his rights to a speedy trial were denied.

Early in the trial, the trial court was asked to determine the admissibility of a hearsay statement by Luparello. The court initially excluded the statement (although it later reversed its ruling and allowed admission). Believing the case against Luparello was jeopardized by the initial exclusion of the hearsay statement, the People sought to dismiss the information against Luparello. Luparello’s counsel challenged this dismissal, and it is this act which Luparello now faults. Initially, we note the record clearly shows Luparello personally endorsed his counsel’s action. Moreover, counsel’s argument on this motion evidences numerous tactical decisions for his opposition. Counsel was aware jeopardy had not attached and the People would refile against Luparello. A new trial would not present the same obstacles to the admission of the challenged hearsay statement, and the increased investigation time afforded by a dismissal would likely strengthen *432 the People’s case which counsel viewed as “weak” at that time. In sum, Luparello can not be heard to complain for a tactical action which he personally endorsed.

Luparello also contends his counsel should have sought dismissal when the trial was not commenced in accord with section 1382, subdivision 2. This section mandates dismissal when trial in a superior court is not commenced within 60 days after the information is filed. In the present case the information was filed on July 24, 1981, and trial was commenced on September 16,1981. Given the elapsed time between these dates, Luparello’s assertion must be seen as a result of a miscalculation. The 60th day of the statutory period was September 21, 1981. On these facts, Luparello’s assertion must fail.

Finally, Luparello faults his counsel for failing to seek dismissal when the trial could not be reconvened on November 4. As discussed above, this delay did not infringe upon Luparello’s right to a speedy trial, and there was no evidence of misconduct in the prosecutor’s seeking of the continuance . Most importantly, the record shows Luparello’s counsel again chose to proceed for tactical reasons. In discussing the court’s ruling on a hearsay statement, Luparello’s attorney stated: “I took the tactical position that I wasn’t going to make a big stink about it; that the relationship that had been established up to that point in time had me winning on this issue when opposed to Mr. Brown [the prosecutor], and with Mr. Brown’s position that he wasn’t going to relitigate—and I recognize that was really in reference to going to another court—but it still led me to believe that with Mr. Brown and I in front of this court on that issue, I was going to win that issue.

“So rather than insist that we proceed to trial immediately or that we even oppose the trailing condition, we didn’t do that. And I think that had we made a stink this court would have felt compelled to direct the district attorney to have somebody ready to try this case at a sooner time. But we continued to t