Taik Whan Kim v. Orellana

Opinion

LILLIE, Acting P. J.

Taik Kim and Young Kim, husband and wife, owned a market next door to a pizzeria-delicatessen owned by Silvio Orellana and his brother Luis Orellana. For two years Taik asked the Orellanas to cease selling products in competition with those sold at the Kims’ market. On the morning of July 8, 1978, Taik went to the pizzeria-delicatessen to make another such request. As Taik stood on the sidewalk outside of the open door of the Orellanas’ establishment, Silvio Orellana went to the cash register and obtained a pistol, intending to fire at the floor; instead he shot Taik in the stomach. The Kims sued the Orellana brothers for damages for personal injuries and loss of consortium. Following a nonjury trial judgment was entered in favor of plaintiffs and against defendant Silvio Orellana for $75,000 compensatory damages and $10,000 punitive damages. Silvio appeals from the judgment.

Appellant contends that the judgment must be reversed because he was denied a fair trial (and hence due process) by the misconduct of his counsel. Among the specific instances of such misconduct cited by appellant are the following: his attorney failed to plead self-defense as an affirmative defense; he sent his associate to represent appellant at the trial; the associate failed to move for a continuance; he did not make an opening statement; he failed to object to certain questions put to witnesses by plaintiffs’ attorney during their case in chief; he stipulated to the admission of plaintiff Taik Kim’s medical reports and medical bills in evidence; he did not cross-examine plaintiff Young Kim as to loss of consortium; he did not offer evidence that the bullet which struck plaintiff Taik Kim first hit the floor; and failed to move for a new trial. Although appellant labels counsel’s acts and omissions

[1027]

as “misconduct,” it is apparent that he actually complains of inadequate representation by counsel.

In a criminal prosecution the defendant has the right to competent representation at trial based on the constitutional right to the assistance of counsel for his defense (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15).

(People

v.

Pope