P. v. Valladares

Filed 5/16/07 P. v. Valladares CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Rand S. Rubin, Judge. Affirmed.

Law Offices of Richard I. Fine & Associates and Richard I. Fine for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

This case concerns a drive-by shooting involving multiple victims. The jury convicted appellant, Oscar Valladares, of one count of murder, three counts of willful, deliberate and premeditated attempted murder, one count of shooting from a motor vehicle and one count of shooting at a person from a motor vehicle. The jury found true allegations appellant personally and intentionally discharged a firearm in the commission of the offenses and personally and intentionally discharged a firearm causing death. He appeals his convictions claiming (1) the three eyewitness/victims presented perjured testimony; (2) the prosecutions rebuttal witness was a surprise witness whose testimony unduly prejudiced his defense, and in addition, was perjurious; (3) trial counsel was ineffective for failing to request a recess to investigate the rebuttal witnesss proposed testimony and for failing to secure an expert to testify a gunshot fired from a car could not have been the fatal shot because a shot fired from a car 15 feet away could not have entered the victims body and traveled downward through his body toward his feet as the coroner testified. We affirm.

FACTS AND PROCEEDINGS BELOW

On June 15, 2004 Victor Jimenez was with Fidencio Delgado and Oscar Huerta standing outside at the corner of 35th Street and Wadsworth in Los Angeles. Around 9:00 p.m. they heard loud rap music and then saw a car approach. The cars driver and passenger side windows were rolled down. The car was very distinctive looking. The car was yellow but had a red replacement fender. The cars interior had been largely gutted. The driver of the car was appellant.

Jimenez, Delgado and Huerta had seen appellant before in the neighborhood. Appellant usually hung out at a friends house right down the street from Jimenezs house.

A few minutes later appellant drove by Jimenez, Delgado and Huerta again. On this second pass, appellant slowed down his car and mad dogged them, or stared at the three young men with a serious facial expression. Jimenez, Delgado and Huerta asked appellant, Whats up? Whats your problem? Delgado walked over to appellants car. Delgado stood near appellants car and told appellant to get out and fight like a man. Appellant got nervous and started rummaging around the interior of his car. Appellant then put his car in reverse, jumped the curb, and tried to hit Delgado with his car. Delgado managed to get out of the way and appellant drove off.

Delgados younger brother Raul joined Delgado, Jimenez and Huerta outside. Several minutes later the young men again heard loud rap music preceding the approach of appellants car. When Jimenez heard the music he knew appellant was returning and warned the others to watch out. Appellant stopped his car in the street right in front of the young men. Appellant stared at them for a moment and then fired three shots at them. With the first shot each of the young men hit the ground or took cover.

Although the street lamps were illuminated, it was too dark inside the car to see the actual gun. Instead the young men saw the muzzle flashes of the gun. It was light enough, however, to see appellants face.

One of the shots hit Raul in the abdomen. Raul started screaming he was hit and could not breathe. Raul died of his gunshot wound. According to the coroner, the bullet entered his abdomen, went through his liver and several large blood vessels in his abdomen, and then traveled toward the back of his body and down toward the direction of his feet.

David Morado and appellant have known each other since they were children. David Morado and appellant had been best friends most of their lives. For years their families lived across the hall from each other in the same apartment building. Their mothers had an extremely close relationship.

On the night of the shooting David received a telephone call from his brother, Guillermo Morado. Guillermo told David appellant had shot Raul. Raul happened to be Guillermos nephew. David called appellant to see if what Guillermo said was true. David told appellant Youre my best friend. You shot my brothers nephew. So what are we going to do now? At first appellant stayed quiet and said nothing. Eventually appellant told David, He was just tired of them talking shit and they deserve[d] it.[1]

Witnesses at the scene identified appellant as the shooter and provided police a description of his car. Around 1:00 a.m. officers arrested appellant at his home as he stepped naked from the shower. Officers found no gun in a search of his home. Officers similarly found no gun or shell casings in his car. Because appellant had just showered, there was no point in attempting to gather gun shot residue from his hands.

Appellant presented an alibi defense. He testified on his own behalf. Appellant said he worked all day at a business in East Los Angeles installing auto stereos. He loves loud rap music and always plays his cars stereo loudly so the rap music sounds right. His favorite recording is Silent by the Ghetto Boys.

Appellant arrived home sometime before 7:00 p.m. Around 8:00 or 8:30 p.m. appellant went to Estebans house to watch the Lakers basketball playoff game. He stayed at Eastebans house around 15 minutes until the game ended. Appellant told Esteban he had to leave because he had to go home and take a shower and then get up early the next morning to drive his sister to school. By then it was around 9:00 p.m. and he drove straight home. On the way home he saw three guys standing on the corner of 35th and Wadsworth. Appellant looked over because he thought he recognized one of the young men in the group. Appellant testified it was light enough he could see one of the men had on the striped grey shirt his friend often wore. The three young men came at him in a very aggressive manner. They challenged him to a fight and surrounded his car. He had to maneuver his car around them to get away.

Appellant arrived home around 9:10 p.m. Appellant chatted with several of his neighbors who were still outside milling around. Appellant then joined his father, mother and sister in the apartment. Around 10:00 p.m. David Morado called him. David asked appellant if he knew anything about what had occurred that evening. Appellant was surprised and told David he did not know what David was talking about. Appellant claimed he had never fired a gun in his life.

When looking at a photo of Jimenez, Huerta and Delgado appellant testified the only person he recognized was Jimenez. Appellant explained he knew Jimenezs brother and for this reason had seen Jimenez on occasion. Appellant testified he did not know the other two men. Appellant denied having had prior contact with Delgado. He agreed he might have seen Delgado with a group of other men in the neighborhood before but did not know him to recognize him.

Appellant acknowledged he had been best friends with David Morado. He once lent David $7,000 which David never repaid. Appellant knew Davids brother Guillermo. Guillermo Morado had helped him secure various jobs in the past. Appellant testified he had never been a problem to anyone because he worked all the time.

Miguel Martinez testified he was at appellants apartment complex when appellant arrived home around 9:00 p.m. Martinez was there waiting for his father to pick him up. Appellant parked his car in the driveway. He played loud music on his cars stereo. Appellant was smiling, happy and relaxed. Appellant talked to Martinez about his moped for a few minutes and then went inside his apartment.

Esteban Herrera testified on June 15, 2004 appellant came to his house to watch the Lakers game. When the game ended around 8:45 p.m. appellant and other friends watching the game walked outside and talked for awhile. Everyone drove off around 9:00 p.m.[2]

Mirna Valladares is appellants sister. She had been watching the Lakers game when she heard appellant arrive home around 10 minutes to 9:00 p.m. She heard, rather than saw, appellant arrive home because, as usual, he was playing rap music loudly from his cars stereo.

Maria Valladares is appellants mother. She testified appellant arrived home from work around 8:00 p.m. and stayed in the whole rest of the night. She described how police arrived around 11:45 p.m. and searched her entire house.

The prosecution presented Guillermo Morado as a rebuttal witness. Guillermo Morado testified appellant knew Delgado, Jimenez and Huerta because he had had prior contacts with them. Guillermo described one incident when he, Delgado and the others were playing basketball outside when appellant drove up. Appellant and Delgado began mad dogging each other. Delgado asked appellant, Whats up? Appellant stopped his car, Delgado and the others approached ready to fight, and appellant drove off. Guillermo told Delgado to calm down and to leave appellant alone. Guillermo talked to appellant separately and told him the same thing. Guillermo told appellant if he had a problem to let him know and Guillermo promised to intervene with Delgado for him.

A few months later they were all together playing pool at his brothers, David Morados, house. Guillermo told them both to stop bothering each other, and to stop acting as though they wanted to fight all the time. Guillermo made them promise to do so and had appellant and Delgado shake hands.

An information charged appellant with one count of murder;[3]three counts of willful, deliberate, and premeditated attempted murder;[4]one count of shooting at a person from a motor vehicle;[5]and one count of shooting from a motor vehicle.[6] As to the murder and attempted murder charges the information alleged appellant personally and intentionally discharged a handgun causing death.[7] Attached to the charges of shooting from a vehicle were allegations appellant personally and intentionally discharged a firearm causing death.[8]

Appellants first jury trial ended in a mistrial with the jury hung 11 to 1 in favor of conviction. On retrial, the jury convicted appellant as charged. The jury found the murder to be in the first degree and found true all firearm allegations.

Appellant appeals from the judgment of conviction.

DISCUSSION

I. APPELLANT HAS FAILED TO ESTABLISH THE VICTIM WITNESSES COMMITTED PERJURY.

Appellant contends his convictions must be reversed on the ground Delgado, Jimenez and Huerta presented perjured testimony at trial.

Appellant claims their testimony was perjurious because each persons testimony was contradicted by more than one person.[9] He points out the testimony of Delgado, Jimenez and Huerta stating he was the shooter was contradicted by his and other defense witnesses testimony he was home at the time of the fatal shooting.

The short answer to his assertion is that it is the province of the jury to determine the credibility of witnesses and thus to decide who is telling the truth.[10] Having convicted appellant of all charges the jury apparently determined the prosecution witnesses were more credible. As the fact finders, the jury may have determined if anyone presented perjurious testimony it was appellant and possibly some of his defense witnesses.

Appellant nevertheless claims the victims testimony constituted perjury because they did not testify identically in both the first and second trials. In his brief on appeal appellant details all the perceived variations in each witnesss testimony between the first and second trials. Moreover, he points out, Delgado admitted his memory was refreshed for the second trial after speaking with Jimenez and Huerta regarding certain details of the shooting incident. His consultation with the other victims suggests to appellant Delgados testimony must have been perjured.

There are several problems with appellants arguments. First, the record on appeal does not include the trial transcripts from the first trial. Accordingly, this court is unable to determine whether there were in fact any discrepancies at all in the witnesses testimony.[11] Secondly, and even assuming the accuracy of appellants representations regarding the testimony from the first trial, the discrepancies noted are de minimus. Accordingly, in this context they do not and could not satisfy the materiality requirement to establish perjury.[12]

The discrepancies concern how quickly the victims hit the ground, specifically, whether they did so before or after the first shot; how many minutes elapsed between appellants second and third pass; what direction appellant drove as he left the scene after his second pass; and whether it was light enough to see the gun or appellants face inside the car. These minor details had little if any bearing on the witnesses identification of appellant as the shooter. Appellant and the witnesses knew each other from prior contacts. Minutes before the shooting they had had a face-to face confrontation. Moments before the shooting the witnesses saw appellants face as he slowed his car and stopped in front of them. The shooter drove appellants distinctive car with the red fender on the yellow body. According to appellant, he never let anyone else drive his car.

In any event, it is not surprising to find inconsistencies in a witnesss testimony after testifying on three occasions over the course of nearly a year.[13] This is especially so when the witnesses are asked to recall details about an extremely stressful incident.

In rejecting appellants motion for new trial raising the same argument, the trial court commented, Ill tell you what I have a problem with on things like that, whether it was three minutes or 10 minutes, that whenever you take something that occurs in a period of probably 30 seconds to two minutes and then you cross-examine witnesses about it for three or four hours, every little detail, and then you wait another six months and cross-examine them as to every little detail for another three or four hours, theres going to be some inconsistencies. [] I imagine that if you cross-examine me and my wife about dinner last night we would have different answers about how long we sat at the table and what we had to eat and what we had first and second, especially if I had two attorneys grilling me about what we had for dinner last night. [] I dont find these little inconsistencies when we have a crime in June of 2004, a prelim sometime after that, the first trial February 2005 eight months after the incident, second trial another four months after thatI just dont have a problem with these small inconsistencies.

In this case it is similarly immaterial Delgados friends refreshed his memory before the second trial. The portion of his memory which Huerta and Jimenez refreshed concerned nothing more than the direction appellant drove after the second pass.[14] Given the nature of the minor detail his friends helped Delgado remember it could not have made a difference in the outcome of the trial.

We accordingly find no error.

II. IT WAS NOT ERROR TO PERMIT GUILLERMO MORADO TO TESTIFY ON REBUTTAL REGARDING INCONSISTENCIES IN THE WITNESSES TESTIMONY.

Appellant argues the court committed prejudicial error by permitting Guillermo Morado to testify as a rebuttal witness. He claims it was error because Guillermo Morado was not on the prosecutions witness list, his identity had not been shared with the defense pretrial, and the court did not offer to adjourn the trial to permit defense counsel to investigate Guillermo Morados proposed testimony. Appellant thus argues Morado was a surprise rebuttal witness whose testimony unduly prejudiced his case.

The prosecutor called Guillermo Morado on rebuttal and defense counsel requested a side bar hearing. The following exchange took place:

[Defense counsel]: I am told just now by the district attorney this witness will bring out incidents of my client with three individuals. The point is this was not given to me as far as discovery prior to trial so we are indicating it could be a surprise to the district attorney. I had no information of this before today.

THE COURT: I dont understand what is coming in, you say the individuals?

[Prosecutor]: I spoke with Guillermo Morado. This is the same person the defense asked to leave the courtroom. Defense asked if he should leave the courtroom and I had him leave the courtroom at the beginning of the trial. And Friday I spoke to him and he indicated that on previous occasions those 3 boys, Fidencio Delgado, Oscar Huerta, and Victor Jimenez had previously followed the defendant over to Guillermo Morados house and before they knew defendant was a friend of Guillermo Morado, Guillermo made peace with the defendant and had defendant shake Delgados hand.

THE COURT: What is the relevance?

[Prosecutor]: I believe defendant said he didnt know Fidencio Delgado and Fidencio Delgado said he knew defendant. I didnt know they had more man talking or whatever.

THE COURT: Do you want to be heard?

[Defense counsel]: I will submit it.

THE COURT: It sounds like prior consistent testimony. I will allow it.

Later in ruling on appellants motion for new trial the court stated he had said inconsistent testimony rather than consistent. The court assumed the reporter did not hear him correctly because they were whispering so quietly at side bar.[15]

The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. ( 1093, subd. (d); People v. DeSantis (1992) 2 Cal.4th 1198, 1232.) In People v. Carter [(1957)] 48 Cal.2d [737] at pages 753-754, [the Supreme Court] stated proper rebuttal evidence does not include a material part of the case in the prosecutions possession that tends to establish the defendants commission of the crime. It is restricted to evidence made necessary by the defendants case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid unfair surprise to the defendant from confrontation with crucial evidence late in the trial. (People v. Bunyard (1988) 45 Cal.3d 1189, 1211; Carter, at pp. 753-754.)[16]

From the exchange noted above it is apparent the prosecutor was not aware of Guillermo Morado as a possible witness until sometime during or after the defense case. In this situation he was as much a surprise to the prosecution as he was to the defense. Because the prosecution was not aware of Guillermo Morado as a possible witness until the trial was well underway, the prosecutor cannot be faulted for failing to disclose his identity as a proposed witness to the defense pretrial.[17] Moreover, if it is true Guillermo Morado is mentioned numerous times in police reports of the incident, as appellant contends, then at least his existence and connection to the case as the murder victims uncle could not have come as any real surprise to the defense.[18]

Even if the prosecutor could have discovered Guillermo Morados testimony earlier, his testimony was not so crucial or material it properly belonged only in the prosecutions case-in-chief, as appellant argues.[19] His testimony did not establish guilt, did not prove an element of any of the offenses, and was not directly probative of the crimes charged. It impeached appellants claims he did not know the victims (other than Jimenez by sight) and his claims he had never had contact with Delgado or Huerta before. Appellants familiarity with the victims or lack thereof was not an issue implicit in his guilt or innocence of the charges and thus was proper on rebuttal.

Taking a different tack, appellant asserts Guillermo Morados testimony was perjurious and inadmissible because it contradicted his and the shooting victims testimony they did not know one another. The inconsistency appellant notes is precisely the reason Guillermo Morados testimony was properly admitted on rebuttal. Morados testimony impeached appellants testimony he had no prior contact with Delgado, had not really seen any of the victims before, and did not know Delgado or Huerta well enough to recognize them in a photograph. It also had the effect of impeaching Delgado, Huerta and Jimenezs testimony to the extent none of them was willing to admit he knew appellant well. Guillermo Morados testimony made it clear the men had previously met face-to-face and thus in fact knew each other. His testimony also explained the men had a history of animosity and confrontation. This, in turn, suggested a motive and created the inference this was not a random drive-by shooting by an unknown assailant as defense counsel urged the jury to find in his closing argument.

Guillermo Morados testimony regarding appellants prior contacts with the victims tended to establish a motive for the shooting and was relevant for this purpose.[20] Testimony which fortifies a part of the prosecutions case that has been impeached by defense evidence may properly be admitted in rebuttal.[21] Because Guillermo Morados impeachment testimony was proper rebuttal, it is immaterial his testimony would also have been properly allowable in the prosecutions case-in-chief.[22] Accordingly, we find no error.

III. APPELLANT HAS FAILED TO ESTABLISH TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL AN EXPERT TO TESTIFY REGARDING THE FATAL BULLETS PATH.

Appellant contends defense counsel rendered ineffective assistance by failing to call an expert to testify regarding the bullets path through the murder victims body. The totality of his argument is trial counsel erred by not producing an expert to testify that it would be impossible or highly improbable for a bullet shot from the driver[s seat] of the 1980 Toyota Celica 2 door hatchback through the passenger window to enter the abdomen of the 56 decedent 21 [inches] below the top of the head, who was at least fifteen feet away from the car and travel downward toward the decedents feet as shown in the Autopsy Report and the Coroners testimony.

Appellant offers no argument or authority to establish his claim of error. On appeal the argument of counsel is insufficient. Appellate briefs must contain the factual underpinning, record references, argument and pertinent authority in support of the legal points raised.[23] Points perfunctorily asserted without argument in support are not properly raised.[24]

In any event, it is not clear expert testimony was either warranted or necessary. Jimenez, Delgado and Huerta testified they hit the ground when appellant began shooting. They assumed Raul had hit the ground as well. If Raul was facing the car and falling to the ground when shot in the abdomen, it would seem logical for the bullet to travel downward through his body and toward his feet as he fell. A lay person could easily envision this occurring without the assistance of expert testimony on the point.

Moreover, assuming an expert could have been found to testify as appellant now suggests, it would have undermined his defense argument the shooting was just another random drive-by shooting by unknown assailants in a neighborhood known for its violence.

In sum, appellant has failed to establish his claim counsel was ineffective for having failed to retain an expert to testify the murder victim could not have been shot in a drive-by shooting.[25]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P.J.

WOODS, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

[1] David Morados testimony was impeached with evidence he had suffered a prior felony conviction for a theft related offense.

[2] Esteban Herrera admitted having a 2002 felony conviction for a theft related offense.

[3] Penal Code section 187, subdivision (a). All further statutory references are to the Penal Code unless otherwise noted.

[4] Sections 664 and 187, subdivision (a).

[5] Section 12034, subdivision (c).

[6] Section 12034, subdivision (d).

[7] Section 12022.53, subdivisions (b)(c)(d).

[8] Section 12022.53, subdivision (d).

[9] Citing section 118 which defines perjury as follows:

(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

(b) No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence.

[10]People v. Maury (2003) 30 Cal.4th 342, 403 [Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.].

[11] See Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 [No reporters transcript or other items pertinent to these issues have been provided.  . . .  Without the proper record, we cannot evaluate issues requiring a factual analysis.].

[12]People v. Kobrin (1995) 11 Cal.4th 416, 420, 426-428; United States v. Gaudin (1995) 515 U.S. 506, 509-511, 522-523.

[13] See e.g., People v. Woodard (1979) 23 Cal.3d 329, 341, footnote 8 [The fact that Johnsons testimony contradicted Spencers does not inevitably mean that one of the two committed perjury, for it is widely recognized that innocent misrecollection is not [an] uncommon [experience] and that two persons witnessing an incident or a transaction often will see or hear it differently. (CALJIC No. 2.21.)]

[14] Delgado testified after his second pass appellant drove down 35th Street and turned on Wadsworth. Defense counsel asked Delgado whether he had previously testified appellant instead kept going right. Delgado agreed he had, and explained it was because he could not remember. Defense counsel then inquired:

Q So the first time you testified that he kept going right, but now youre saying he went back?

A Yeah. I refreshed my memory.

Q How did you refresh your memory?

A Huh? I was right there where we were at, thinking how everything happened.

Q So the three of you got together before this trial and you decided what really happened; is that right?

A No. The first trial we were right there, like questioning, like I said, like, How did it happen? Do you remember how it happened? Thats how we were.

Q Did the three of you get together and decide how it really happened for this trial?

A Well, we talked about it.

Q Okay. [] And then you decided how it really happened?

A No. We remembered. We didnt decide. We remembered.

Q You didnt remember the first time?

A No, I couldnt remember.

Q The first trial was in February; is that right?

A No, I dont remember what day was it [sic].

Q How come your memory got better as the months went on?

A Huh? Because they refreshed it.

Q Who refreshed it?

A Huh? My friends.

Q Which ones?

A Oscar [Huerta] and Victor [Jimenez].

Q Specifically which one? Was it Victor or Oscar?

A It was both.

[15] It would not be determinative if the court really admitted the rebuttal testimony as prior consistent statements and this ruling was erroneous as a matter of fact and law. If the result was correct, an appellate court will affirm whether or not the ground upon which the trial court relied was correct. (See People v. Zapien (1993) 4 Cal.4th 929, 976 [a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.]; see also, People v. Braeseke (1979) 25 Cal.3d 691, 700.)

[16]People v. Young (2005) 34 Cal.4th 1149, 517.

[17] Section 1054 et seq. concerns discovery in criminal matters. Certain of these sections impose a duty on the People to timely disclose materials and information to the defense. This duty includes the disclosure of the names and addresses of persons the prosecution intends to call as witnesses at trial at least 30 days before trial. ( 1054.1, subd. (a); 1054.7.) When, as in this case, a witness or evidence is discovered late or during the trial, then the People may satisfy their burden of providing discovery by immediately disclosing the information to the defense. ( 1054.7; People v. Hammond (1994) 22 Cal.App.4th 1611, 1622-1624 [disclosure during trial of a recently discovered rebuttal witness did not violate the discovery rules].) This is what occurred in the case at bar. Once the prosecutor spoke to Guillermo Morado the prosecutor learned he had valuable impeachment testimony and immediately informed defense counsel of this fact and his intent to call Guillermo Morado as a rebuttal witness.

[18] Police reports of the shooting incident are not part of the record on appeal. We assume defense counsel was provided copies of the police reports pretrial. Appellant makes no claim to the contrary. With the police reports apparently replete with Guillermo Morados statements, and appellants familiarity with him personally as his best friends brother, defense counsel was certainly aware of his existence. Because appellant has not presented facts or argument to suggest defense counsel in fact needed a recess, adjournment or continuance to prepare to meet Guillermo Morados testimony, he has failed to establish his claim trial counsel rendered ineffective assistance by failing to request a continuance to investigate Guillermo Morados testimony. (See People v. Gray (2005) 37 Cal.4th 168, 206-207 [to prove an ineffective assistance of counsel claim requires, among other things, a finding counsels representation fell below an objective standard of reasonableness under prevailing professional norms].

[19]People v. Bunyard (1988) 45 Cal.3d 1189, 1212-1213 [evidence which bolstered prosecution witnesses nevertheless constituted proper rebuttal evidence even though it would have also been allowable in the prosecutions case-in-chief].

[20] Evidence Code section 210; see also, People v. Brown (2003) 31 Cal.4th 518, 534 [As with all relevant evidence, . . . , the trial court retains discretion to admit or exclude evidence offered for impeachment.].

[21]People v. Young, supra, 34 Cal.4th 1149, 518.

[22]People v. Bunyard, supra, 45 Cal.3d 1189, 1212.

[23]People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283; see also, County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [parties must present argument and authority on each point made. Arguments not presented will not be considered.]

[24]People v. Williams (1997) 16 Cal.4th 153, 206, quoting People v. Ashmus (1991) 54 Cal.3d 932, 985, footnote 15.

[25]Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. Gray, supra, 37 Cal.4th 168, 206-207.

Because we find no error, we further find the court did not abuse its discretion in denying appellants motion for new trial which presented the identical issues appellant raises in this appeal. (People v. Ault (2004) 33 Cal.4th 1250, 1262-1263 [the discretion to grant a new trial, while broad, is not unlimited. Before ordering a case retried, the trial court must make its independent determination, under article VI, section 13 of the California Constitution, both that error occurred, and that the error prevented the complaining party from receiving a fair trial. . . .  [T]he trial court has no discretion to award a new trial where no prejudicial error occurred.].)