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P. v. Gray

P. v. Gray
07:22:2013





P




 

 

 

P. v. Gray

 

 

 

 

 

 

 

 

 

 

Filed 7/2/13  P. v. Gray CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>






THE PEOPLE,

 

      Plaintiff and
Respondent,

 

            v.

 

DARRELL MARTIN GRAY,

 

      Defendant and
Appellant.

 


 

 

         G045645

 

         (Super. Ct.
No. 06NF2588)

 

         O P I N I O
N


 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, David A. Thompson, Judge.  Affirmed.

                        Michael Clough, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Stacy A. Tyler, Deputy
Attorneys General, for Plaintiff and Respondent. 

                        Darrell Martin Gray
appeals from a judgment after a jury convicted him of special circumstances href="http://www.fearnotlaw.com/">first degree murder, shooting at an occupied
motor vehicle, conspiracy to commit murder, three counts of premeditated and
deliberate attempted murder, and street terrorism, and found true he
committed the offenses for the benefit of a criminal street gang, and he was a
gang member who vicariously discharged a firearm and caused great bodily
injury.  Gray argues his defense counsel,
who has since been disbarred, was ineffective and the prosecutor committed
multiple instances of misconduct.  In our
prior nonpublished opinion, People v.
Gray
(Feb. 25, 2013,
G045645) (Gray I), we concluded
Gray’s trial counsel was inadequate and the prosecutor committed one instance
of misconduct, but we also concluded Gray was not prejudiced.

                        Gray filed a href="http://www.mcmillanlaw.com/">motion to augment the record and a
petition for rehearing.  In his rehearing
petition, Gray argued, among other things, we erred in relying on a transcript
of Gray’s pretrial admissions to investigators because the transcript Gray’s
appellate counsel introduced into evidence at the new trial hearing did not
accurately reflect Gray’s video recorded statements.  The video, however, was never introduced into
evidence or marked as an exhibit, and therefore, is not part of the record on
appeal.  Consequently, we denied his
motion to augment the record but granted the rehearing petition and stayed the
appeal to allow Gray time to file a petition for writ of habeas corpus.  Gray filed a request for judicial notice,
which we also denied.  Gray filed a
request for habeas corpus investigation fees. 
Instead of ruling on that motion, we ordered the parties to brief the
issue of whether Gray’s appellate counsel, the same counsel who represented
Gray during the motion for new trial proceedings, has a disqualifying conflict
of interest because he apparently inadvertently admitted into evidence at the
new trial hearing the evidence that is the subject of the discrepancy.  The parties briefed that issue, but Gray also
filed a renewed motion for judicial notice
and a brief indicating he will not file a petition for writ of habeas corpus
until his appeal is resolved. 

>                        Thus,
we again conclude Gray’s defense counsel was ineffective and the prosecutor
committed one instance of misconduct but Gray was not prejudiced.  We affirm the judgment. 

FACTShref="#_ftn1" name="_ftnref1" title="">[1]

                        On June 30, 2006, Jennifer Gardner, her boyfriend
Darnell Little,

Maxine
Solomon, and Christopher Lang went to a nightclub in Gardner’s
1997 Honda Passport.  Earlier in the
evening, Gardner took one-half of
an “Ecstasy” pill and she drank throughout the night.  As Solomon and Lang waited outside, Darrel
Gray and

Randle
Hester approached Gardner and
Little as they exited the club and one of the men called Gardner
a “‘bitch.’”  Little approached the
men.  In a face to face confrontation,
Little said, “‘20’s Crip,’” Gray replied, “‘East Coast,’” and they both
referred to each other as “cuz.”  The
parties left the club separately, Little and his friends in Gardner’s
vehicle, and Hester and Gray in a grayish blue Dodge Magnum.

                        Little drove to a nearby
gas station and everyone got out.  The
same

Dodge
Magnum pulled into the gas station, and Gray and Hester got out.  Little and Gray argued again.  Gardner and Solomon got back into the
vehicle.  Little got in the vehicle and
said, “Let’s go.”

                        Little drove onto the
Interstate 5 freeway northbound.  Minutes
later, Gardner heard “muffled sounds,” like gunshots, and Little swerved the
vehicle into the center divider.  The
vehicle came to a stop in the fast lane facing southbound, facing oncoming
traffic, with the driver’s side of the vehicle on the busy side of the freeway.  Little asked if everyone was okay, but
Solomon did not respond.  Little got out
of the vehicle.  As Little stood on the
freeway, Gardner told him that Solomon was okay.  When Little started to say something, either
Lang or Solomon asked where Little was. 
Gardner looked to where Little was standing, but he was gone.

                        A truck driver traveling
northbound on the freeway saw a vehicle in the middle of the freeway.  The driver had no time to avoid hitting
Little who was standing next to the vehicle. 
Gardner and the others got out of the vehicle and saw Little lying on the
ground about 50 feet up the freeway. 
Gardner ran to him and realized he was dead.

                        Officer Daniel Ackerman
interviewed Gardner at the scene of the incident.href="#_ftn2" name="_ftnref2" title="">[2]  What Gardner told Ackerman was largely the
same as we detail above.  She stated the
altercation at the nightclub “was [a] little tiff” that “was no . . . big
deal.”  She said the men were showing
off.  She stated Gray said, “East Coast,”
but she did not know what that was, maybe “a gang out here.”  She described the argument between Little and
Gray at the gas station.  Gardner said
she was not wearing her eyeglasses and could not see if it was the men in the
Dodge Magnum shooting at them but she was “going off [her] gut instinct.”  Gardner said that after her vehicle came to a
stop on the freeway, Little came around to her on the “busy side” of the
freeway.

                        Detective Ryan Dieringer
investigated the case.href="#_ftn3"
name="_ftnref3" title="">[3]  Dieringer obtained a copy of a videotape from
surveillance cameras at the nightclub, and he distributed copies to gang
officers in Los Angeles County to obtain help in identifying the suspects.

Detective
Ronald Kingi called Dieringer and eventually identified one of the suspects in

 

the
videotape as Darrell Gray based on his facial features and distinctive walk.href="#_ftn4" name="_ftnref4" title="">[4]  In the first photographic lineup, Gardner
identified someone but she was not certain; the lineup included a photograph of
Manuel Gray (Manuel), Gray’s brother.  In
the second photograph lineup, Gardner identified Gray, although she was unable
to identify Hester in another photographic lineup.

                        Nine shell casings of
the same caliber and manufacturer were recovered from Gardner’s vehicle and the
freeway.  All the bullets were fired into
the right side of Gardner’s vehicle.

                        Officers executed a
search warrant at Gray’s house where they found Gray and Gregory Shively.  Officers discovered items that established
Gray lived there and indicia of gang membership.  In the rear bedroom, officers found various
items with “East Coast Crips” written on them and in the same bedroom, a letter
signed by Gray.  Officers later arrested
Hester in a bluish gray Dodge Magnum, which belonged to his girlfriend.href="#_ftn5" name="_ftnref5" title="">[5]

                        In July 2006, a felony
complaint charged Gray with conspiracy to commit murder (Pen. Code, § 182,
subd. (a)(1), count 1),href="#_ftn6"
name="_ftnref6" title="">[6]
four counts of premeditated and deliberate attempted murder (§§ 664, subd. (a),
187, subd. (a), counts 2, 3, 4, & 5), and street terrorism, East Coast
Crips (§ 186.22, subd. (a), count 6). 
As to all but count 6, the complaint alleged Gray committed the crimes
for the benefit of a criminal street gang, East Coast Crips (§ 186.22, subd.
(b)(1)).  As to counts 1, 2, 3, 4, and 5,
the complaint also alleged Gray was a gang member who vicariously discharged a firearm causing great bodily injury (§
12022.53, subds. (d) & (e)(1)). 
Finally, the complaint alleged Gray inflicted great bodily injury (§
12022.7, subd. (a)), as to counts 1 to 4.

                        In August 2006, a first
amended felony complaint added Hester as a named defendant in counts 1 to
6.  The first amended felony complaint
alleged the same enhancements against Gray. 
It added the following allegation against Hester—that he was a gang
member who vicariously discharged a
firearm (§ 12022.53, subds. (c) & (e)(1)).     

                        In November 2006, a
second amended felony complaint charged Gray and Hester with first degree
murder of Little (§ 187, subd. (a), count 1), shooting at an occupied
motor vehicle (§ 246, count 2), conspiracy to commit murder (§ 182,

subd.
(a)(1), count 3), four counts of premeditated and deliberate attempted murder

(§§
664, subd. (a), 187, subd. (a), counts 4 (Little), 5 (Gardner), 6 (Lang), and

7
(Solomon)), and street terrorism (§ 186.22, subd. (a), count 8-Gray (East
Coast Crips) & count 9-Hester (“Osage Legend Crips”)).  As to count 1, the second amended felony
complaint alleged Gray and Hester committed murder during a drive-by shooting


190.2, subd. (a)(21)), and to further the activities of a criminal street gang,
East Coast Crips and Osage Legend Crips (§ 190.2, subd. (a)(22)).  As to all but counts 8 and 9, the second amended
felony complaint alleged Gray and Hester committed the crimes for the benefit
of their respective criminal street gangs. 
(§ 186.22, subd. (b)(1)).  As to
counts 1, 2, 3, 4, 5, 6, and 7, the second amended felony complaint also
alleged Gray was a gang member who vicariously
discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) &
(e)(1)).  With respect to counts 2, 3,
and 4, the second amended felony complaint also alleged Hester >personally inflicted great bodily injury
(§ 12022.7,

subd.
(a)).  Finally, the second amended felony
complaint alleged Hester personally
discharged a firearm causing great bodily injury and death (§ 12022.53, subd.
(d)), as to counts 1 to 7. 

                        In December 2006, Gerard
Lionel Garcia-Barron, a private attorney appeared and substituted in as counsel
for Gray and relieved the Alternate Defender, Raymond Chen.

                        The
preliminary hearing was held in March 2007. 
A detective testified Lang told him the driver’s side window was
partially rolled down and “the driver of the vehicle put a dark-colored handgun
out of the vehicle and began firing.” 
The trial court held Gray and Hester to answer on all charges and
allegations.

                        In March 2007, an
information charged Gray and Hester with the same offenses along with the
special circumstances and street
terrorism
allegations in the second amended felony complaint.  The information however alleged Gray and
Hester were gang members who vicariously
discharged a firearm causing great bodily injury


12022.53, subds. (d) & (e)(1)), as to counts 1 to 7.  With respect to counts 1, 2, 3, and 4, the
information also alleged Hester personally
inflicted great bodily injury (§ 12022.7, subd. (a)).  Finally, the information alleged Hester >personally discharged a firearm causing
great bodily injury and death (§ 12022.53, subd. (d)), as to counts 1 to 4.

                        In September 2008, the
operative charging document, a first amended information charged Gray and
Hester with first degree murder of Little (§ 187, subd. (a), count 1),
shooting at an occupied motor vehicle (§ 246, count 2), conspiracy to
commit murder (§ 182, subd. (a)(1), count 3), four counts of premeditated and
deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 4
(Little), 5 (Gardner),

6
(Lang), and 7 (Solomon)), and street terrorism (§ 186.22, subd. (a), count
8-Gray

(East
Coast Crips) & count 9-Hester (Osage Legend Crips)).  As to count 1, the amended information
alleged Gray and Hester committed murder during a drive-by shooting


190.2, subd. (a)(21)), and to further the activities of a criminal street gang,
East Coast Crips and Osage Legend Crips (§ 190.2, subd. (a)(22)).  As to all but counts 8 and 9, the amended
information alleged Gray and Hester committed the crimes for the benefit of a
criminal street gang, East Coast Crips and Osage Legend Crips.  (§ 186.22, subd. (b)(1)).  As to counts 1, 2, and 4, the amended
information alleged Gray was a gang member who vicariously discharged a firearm causing great bodily injury (§
12022.53,

subds.
(d) & (e)(1)), and with respect to counts 5, 6, and 7, he was a gang member
who vicariously discharged a firearm
(§ 12022.53, subds. (c) & (e)(1)). 
With respect to

counts
1, 2, 3, and 4, the amended information also alleged Hester >personally inflicted great bodily injury
(§ 12022.7, subd. (a)).  Finally, as to
counts 1, 2, and 4, the amended information alleged Hester personally discharged a firearm causing great bodily injury and
death (§ 12022.53, subd. (d)), and with respect to counts 5, 6, and 7, he >personally discharged a firearm (§
12022.53, subd. (c)).

                        Before trial, Hester
filed a motion to sever/bifurcate gang charges and allegations from the other
counts.  Gray joined in the motion.  The trial court denied the motion.

                        At trial in the fall of
2008, the prosecutor offered Gardner’s testimony, which is the basis of much of
the facts described above.  Gardner
stated she was reluctant to testify and was scared.  Gardner testified the altercation at the
nightclub was “heated but calm.  You
know, nose-to-nose type of conversation.”  She said the Dodge Magnum drove next to
them at the gas station, the same two men got out of the car, and Little and
Gray got into a “heated argument.”  She
stated that when Little drove onto the freeway, she put on her eyeglasses.  She saw the blue Dodge Magnum pull alongside
her vehicle just before the shooting started. 
She explained that when her vehicle stopped on the freeway, Little got
out and “came around to [her] side[]” of the vehicle before he was hit.  Gardner said she was “98 to 99 percent sure”
of her identification of Gray, and she identified Gray from surveillance video
from the nightclub.

                        On cross-examination,
Hester’s defense counsel questioned Gardner extensively about whether she was
intoxicated, whether she was wearing her eyeglasses, whether she saw the
vehicle the shots came from, and her identification of the men.  Gardner insisted that although she told
Ackerman she did not have her eyeglasses on when she got into her vehicle, she
generally puts them on when she gets into her vehicle and she did see the Dodge
Magnum.  She admitted she lied to police
about taking drugs that night.

>                        On
cross-examination, Gray’s defense counsel began by stating he would try not to
repeat what Hester’s defense counsel covered but some questions may
overlap.  He questioned Gardner about
whether she was intoxicated, whether she was wearing her eyeglasses in the
nightclub, the incidents at the nightclub and the gas station, her description
of the men, the shooting, and what happened after the shooting, including her
field sobriety tests and her interviews. 


                        Gardner admitted there
was no physical violence at the nightclub. 
Gardner repeated she heard Gray say “East Coast,” but when counsel asked
if she heard anything else, she replied, “There [was] a lot of ‘Crip’ going
back and forth, but I don’t know if it was [Little] or [Gray].  I just know there was a lot of gang stuff
going back and forth on [Little’s] part.” 
A little later she responded, “Yes,” when counsel asked whether Little
was yelling, “20 Crip.”  Gardner
testified she did not confront Gray and Hester at the gas station.

                        Finally, there was some
confusion about where Gardner was sitting in the vehicle while they were on the
freeway and the exact circumstances of Little’s death.  Photographs of Gardner’s vehicle that were
admitted into evidence show the vehicle stopped in the fast lane facing
oncoming traffic.  There is no dispute
Little drove onto the freeway, and Lang sat in the front passenger seat.  Gardner repeatedly testified she sat behind
Lang in the rear passenger seat.  Gardner
also testified Little came around to her side of the vehicle to check on
Solomon when he was hit by the truck. 
Gardner testified she never told officers she sat behind Little.  But she did state that when the vehicle came
to a rest, she recalled being on the “busy side” of the freeway and not the
center divider side of the freeway.  But
she added, “Those are not details I was paying attention to when somebody’s
killed.”  When Hester’s defense counsel
pointed out that if she was sitting in the rear passenger seat and the vehicle
was facing oncoming traffic, she would be on the center divider side of the
freeway, Gardner responded, “It suggests that. 
But again, I don’t remember those details.”

                        The prosecutor also
offered the testimony of Detective Joe Pirooz, a gang expert.  After detailing his background, training, and
experience, Pirooz testified the Rollin 20’s and East Coast were not rivals but
they had committed crimes against each other. 
Pirooz explained the 20’s Crips called East Coast derogatory names, such
as “Toasters” or “Cheetos.”  He stated
Little was a member of the criminal street gang, “Rollin’ 20’s Crips” and he
had a tattoo of the number “‘20’” on his back and the word “‘Long Beach’” over
his shoulder.  He stated Lang was a
member of Insane Crips criminal street gang. 
Additionally, a mural with Little’s name, and the phrase

“Fucc
Toasts” was admitted into evidence. 
Pirooz asserted this evidence was significant because it demonstrated a
rivalry between the two gangs.  He opined
members of different Crip factions could associate with each other as long as
there is not an ongoing rivalry.

                        Detective Eric Rose
testified as the prosecutor’s gang expert against Gray.  After detailing his background, training, and
experience, Rose testified concerning the culture and habits of criminal street
gangs, including East Coast.  Rose
explained the importance of respect and “putting in work” to gain respect in
the gang.  He stated a gang member loses
respect by not participating in “missions.” 
He said a “hit-up” is when one gang member asks another person what gang
he is from to determine if the person is a rival or an ally.  Rose stated the person doing the “hit-up” is
assuming an altercation will result.  He
testified that if two members of different gangs were in the same car, then one
would expect backup from the other, especially if they are partying together.  He said gang members talk about their crimes
with other gang members to gain respect.

                        Rose also testified
about the importance of guns in gangs. 
Rose stated that if one gang member is armed with a gun generally the
other gang members will know the gang member is armed for purposes of
protection.  Rose opined that if there
are six gang members, one of whom is armed, and there is an altercation, the
other gang members would know which gang member is armed for protection.  Rose opined this was true even if the gang
members are from different gangs.

                        Rose stated he had
testified as an expert on East Coast 15 to 20 times.  Rose explained East Coast began in the late
1960s, its name derives from being on the east side of the 110 freeway, and its
common symbol is anything related to the New York Yankees.  He said there are subsets of East Coast and
there are over 1,000 total members.  He
stated one subset is the “Six Deuce East Coast Crips” (Six Deuce).  He opined that at the time of the offenses,
East Coast was a criminal street gang.

                        Rose testified he was
familiar with Gray because he had been to his home and had six to 10 prior
contacts with him, including instances where Gray was with other known East
Coast gang members, most notably Shively. 
Rose said he reviewed a police report that alleged Gray told another jail
inmate he was a Crip.  Based on his
review of the police reports in this case, his prior contacts with Gray, items
recovered from Gray’s home, and Gray’s tattoos, Rose opined Gray was an active
participant in East Coast at the time of the offenses.  When the prosecutor asked Rose whether the
exchange of gang names in this case influenced his opinion “[Gray’s] an active
participant[]” Rose stated:  “Sure.  What he’s basically talking about, in case
you guys aren’t aware, there was an altercation between . . . Gray and another
individual from a separate gang in which they’re both uttering their gang name
back and forth.  I believe there’s many
different times where they go back and forth. 
Him saying ‘East Coast.’  The
other individual, I believe, something to the effect ‘Rollin 20’s,’ or
something to that effect.  [¶]  You wouldn’t utter a name of a street gang
unless you belong to that particular street gang.  There’s -- especially a street gang as large
as East Coast Crips.  There’s a lot of
different repercussions that could lead to assault all the way up to murder,
for claiming a certain gang that you’re not actually a part of.”  Rose stated “Crip” gang members refer to each
other as “Cuz.”

                        Based on a hypothetical
question mirroring the facts of this case, Rose testified the crimes were
committed for the benefit of the criminal street gang, East Coast, because
people will know which gang did the shooting and this would benefit the gang by
increasing its reputation for committing violence.  He also said it promotes the criminal street
gang because if there was not already a rivalry between the two gangs, there
would be one as a result of the shooting, and this would promote both
gangs.  It also benefits the gang by creating
a rivalry or war between the two gangs. 
By putting

“Fucc
Toasts” on a mural outside Little’s house, Rose stated these individuals all
know who did the shooting and that will increase respect for the shooter and
the gangs.

                        On cross-examination,
Hester’s defense counsel questioned Rose about

Six
Deuce tattoos and territory.  On
cross-examination, Gray’s defense counsel questioned Rose about his background
and training, gang culture, and his prior contacts with Gray.  Defense counsel established Gray’s brother,
Manuel, shared a bedroom with Gray and that Rose had seen Manuel with known
East Coast gang members, including Shively.

                        Officer Daniel
Milchovich also testified as a gang expert. 
After detailing his background, training, and experience, Milchovich
testified regarding the culture and habits of criminal street gangs, including
Osage Legend.  Based on Hester’s
admissions and tattoos, Milchovich’s opined Hester was an active member of
Osage Legend on the night of the shooting. 
Based on a hypothetical question mirroring the facts of this case,
Milchovich opined the crimes were committed for the benefit of, at the
direction of, or in association with a criminal street gang, specifically Osage
Legend and East Coast.  Milchovich stated
an Osage Legend gang member associated with an East Coast gang member to commit
a crime.  He explained commission of the
crime would benefit the street gangs because in gang culture the failure to
resolve a conflict demonstrates weakness, and showing weakness leads to being
disrespected in the gang, which is fatal. 
When the prosecutor asked Milchovich whether the offenses benefitted
Osage Legend when the Osage Legend gang member was not involved in the verbal
confrontation, he responded, “Absolutely.” 
He opined, “Again, it’s the whole notion of backup, of respect.  That gang member being there, that Osage
Legends gang member being there with an East Coast Crip, is going to bolster
their chances of gaining more respect. 
That [Osage] Legends Crip gang member is going to act as backup for that
East Coast Crip gang member in your hypothetical.  [¶] 
Therefore, if, if he doesn’t -- if he doesn’t participate, if he doesn’t
get involved in it, that brings upon that disrespect, that weakness.”  Milchovich opined the offenses would bring
respect to the gang member and the gang because the East Coast gang member
committed the crime while the Osage Legend gang member provided backup.  The parties stipulated East Coast and Osage
Legends were criminal street gangs as statutorily defined.

                        Finally, the jury heard
testimony Gardner’s blood alcohol level was .13 at 6:00 a.m.  There was also testimony that it was possible
a person with a .13 blood alcohol level at 6:00 a.m. would have a .21 blood
alcohol level at 2:00 a.m.

>                        Gray
rested on the state of the evidence. 
Before the trial court instructed the jury, on the prosecutor’s motion,
the trial court dismissed the following enhancements against Hester:  he personally
inflicted great bodily injury (§ 12022.7, subd. (a)), as to counts 1, 2, 3, and
4; he personally discharged a firearm
causing great bodily injury and death (§ 12022.53, subd. (d)), with respect to
counts 1, 2, 3, and 4; and he personally
discharged a firearm (§ 12022.53, subd. (c)), as to counts 5, 6, and 7.

                        During closing argument,
as relevant here, the prosecutor stated: 
“Remember, I told you during voir dire, hey, you have someone who wants
to commit a bank robbery, he needs other participants.  He needs someone to drive him there.  The person who drives him there and drops him
off and waits for him to commit the robbery is guilty of robbery.  They have aided and abetted that robber in
committing the crime; right?  [¶]  Someone who loans them the car, doesn’t even
drive them there, just says ‘use my car,’ could commit that robbery.  Guilty of robbery.  That’s how the law works.  Doesn’t matter who did what in this
case.  Someone shot, someone drove, both
guilty.  Aiding and abetting, actual
perpetrator of the crime.  So, as you go
through all this, remember that. 
[¶]  Don’t get overly concerned
with the roles, because you know someone drove and you know someone shot.  And, you know these two were working in
connection with each other, whoever it was. 
Doesn’t matter for any of these counts or enhancements which role
someone played.  [¶]  So, as we go through this, each count, I’m
just going to say they’re both guilty. 
I’m not going to go through each time why someone was an aider and
abettor and someone was the actual perpetrator. 
It doesn’t matter what their role was. 
This case is not about who was there that night, and not whether the
crimes are committed.  It’s only about
who was there, not whether the crimes were committed.  And you’re going to see that as we go through
this.  [¶]  Role, defendant Gray started the incident,
called out his gang name, continued argument, and is the likely shooter;
right?  That seems like the reasonable
inference you can draw from all this. 
[¶]  Hester, he’s the backup
there, likely the driver.  He’s the one
who owns this car.  Doesn’t matter, but
that’s probably the likely scenario. 
[¶]  You’re going to see as we go
through all these elements, everything flows from count 1.  Once you decode that count, all the other
counts will follow easily.  [¶] . . .
[¶]  All right. . . . Aiding and
abetting.  I told you two theories of liability.  Aiding and abetting, one, the perpetrator
committed the crime.  Someone committed
the crime, right?  The defendant, the
aider and abettor, knew the perpetrator intended to commit the crime.  Defendant intended to aid and abet the
perpetrator.  I have the intent to
actually help you and defendant’s words, or conduct did, in fact, aid and abet
the perpetrator.”

                        Hester’s defense counsel
argued the issue in this case was one of identity as no one identified Hester
at the nightclub, at the gas station, or in the vehicle.  When it was Gray’s defense counsel’s turn, he
characterized the case as a “‘whodunit.’” 
Defense counsel asked whether the prosecutor had proven beyond a reasonable
doubt Gray was at the nightclub, at the gas station, or in the vehicle.  He argued the quality of the video
surveillance was poor and Gardner’s identification was untrustworthy.  He repeatedly claimed there was no evidence
Gray was at the nightclub or the gas station, or in the Dodge Magnum.

                        In rebuttal, the
prosecutor stated:  “And, there’s no
explanation why he has amongst those letters, amongst those letters in his
bedroom, East Coast gang writing.

Six
Deuce gang writing in those same letters in his bedroom.  [¶] . . . [¶] What

[Garcia-Barron]
never told you, what the explanation was for [Gray] saying that he was a Crip,
in jail, after the crime.  Kind of
significant, that after the crime, in jail, he’s telling people in jail that
he’s a Crip.  No explanation for that.”

                        During deliberations,
the jury requested Gardner’s and Rose’s testimony be read back.  On October 10, 2008, with the exception of
count 4, the jury convicted Gray of all counts and found true all enhancements.

                        Less than two weeks
later, Gray submitted a handwritten note requesting a new attorney.  On January 23, 2009, the trial court relieved
trial attorney, Garcia-Barron, as counsel of record and replaced him with
Michael Clough, the same attorney who was later appointed to represent him in
this appeal.  Upon Gray’s motion, the
trial court ordered Garcia-Barron to transfer the file to Clough, which he
eventually did.

                        In July 2009, the
prosecutor sent Clough a letter stating Gardner received payments for moving
expenses and incidentals from the California Witness Relocation and Protection
Program.  The letter explained Gardner
received one payment before trial in the amount of $3,875 and one payment after
trial in the amount of $2,625 for a total of $6,500.

                        Gray filed a motion to
compel discovery, which the prosecutor initially opposed.  The parties ultimately agreed on the
discovery request.

                        Gray filed a motion for
discovery of Rose’s confidential police officer records pursuant to >Pitchess v. Superior Court (1974) 11
Cal.3d 531 (Pitchess).  The prosecutor opposed that motion, and Gray
replied.  The City of Los Angeles agreed
to turn over the requested records and after an in camera review, the trial
court ordered defense counsel be provided with names and contact information of
people who had filed complaints against Rose.

                        In February 2010, Gray
filed a motion for new trial on three grounds:

(1)
insufficient evidence supports the conclusion Gray was the shooter and his
convictions on counts 1 to 7; (2) prosecutorial misconduct because the
prosecutor failed to disclose relocation payments to Gardner; and (3)
ineffective assistance of counsel based on numerous grounds, including counsel
failed to investigate and present a meritorious defense; counsel failed to move
to sever his trial from Hester’s; counsel failed to object to Gardner’s direct
testimony and effectively cross-examine her; counsel failed to challenge Rose’s
qualifications, object to his prejudicial testimony, and present a sociologist
to testify concerning the unreliability of gang expert testimony; and counsel
failed to object to the prosecutor’s misconduct during closing argument when he
misstated the law, offered a factual theory he knew to be false, and failed to
correct false testimony.  The prosecutor
opposed the motion.  In opposition, the
prosecutor conceded he should have disclosed to defense counsel the district
attorney’s office gave Gardner witness relocation payments but argued the
materiality of the evidence was low and its impeachment value weak.  Gray replied.

                        In September 2010, the
trial court ruled Gray made a sufficient threshold showing warranting an
evidentiary hearing on his ineffective assistance of counsel contentions;
Gray’s other claims would be addressed later. 
A briefing schedule on the scope of the evidentiary hearing was set, as
were hearing dates.

                        Gray and the prosecutor
filed supplemental briefs regarding the scope of the evidentiary hearing.  A hearing was held concerning the scope of
the evidentiary hearing.  The trial court
conducted an evidentiary hearing in
December 2010.href="#_ftn7" name="_ftnref7"
title="">[7]

                        Garcia-Barron testified
at the hearing and a banker’s box containing his case file was present in the
courtroom.  He testified the box
contained his entire file but it did not contain any case notes or the
preliminary hearing transcript.  He did
not specifically recall taking any notes other than during voir dire.  He explained he does not personally interview
witnesses.  Instead, he usually hires an
investigator to interview witnesses, but he did not hire an investigator in
this case.  He claimed to have used the
witness statements from the discovery, but Garcia-Barron admitted he did not
review all the discovery.  Before the
preliminary hearing, he did not “do any independent interviewing of witnesses
or any independent investigation.”  When
questioned about

11
of the CD envelopes, six of the CD envelopes were still sealed closed.  He did not show Gray the surveillance videos
before trial.  He did not make any
discovery requests from the prosecutor for additional video surveillance
tape.  And Garcia-Barron admitted he did
not pick up at least two items of discovery from the district attorney’s
office.

                        Garcia-Barron did not
remember much about the case or his preparation for the case.  He did not file any motions.  Although he remembered Gray’s defense was
identification, he did not remember what steps he took to defend against the
charges and he did not recall whether Gray told him he was the man in the video
surveillance from the nightclub.  He knew
that in a recorded interview Gray admitted to officers he was at the nightclub,
but he thought the video surveillance was of poor quality.  He did nothing to follow up though.  He did not present an affirmative defense
because he did not feel the prosecutor met its evidentiary burden.  Garcia-Barron never heard or saw any evidence
Gray was the shooter.  On
cross-examination, Garcia-Barron testified repeatedly that Gray declined to
testify against Hester because he feared physical retaliation.

                        Jack Earley, a criminal
defense specialist, testified on the standards of competent defense
counsel.  Earley explained he reviewed
the transcript of the proceedings in the case and the relevant documents and
evidence.  He explained defense counsel
would need to review the discovery, talk with the client, hire an investigator,
interview witnesses, and because there was a co-defendant, meet and confer with

co-counsel.  Earley testified identification was not the
only issue in the case.  He explained the
major issue in the case was who was the shooter and who was the aider and
abettor and this raised “major intent issues.” 
Earley opined that any reasonably competent defense counsel would object
to expert opinion testimony based on a police report where a defendant admitted
his gang membership.  Earley stated that
depending on the circumstances, defense counsel should have objected to the
prosecutor’s last minute change of theory regarding who was the shooter.  He also opined that based on the evidence he
reviewed, a reasonably competent defense counsel may decide to argue his
co-defendant was the shooter.  He opined
an identification defense was not a viable defense for Gray in this case.

                        Chen, from the Alternate
Defender’s office, testified that before

Garcia-Barron
substituted in for him, he reviewed the police reports, witness statements, and
surveillance videos.  He did not believe
identification was a viable defense based on his preliminary review.  Chen stated he discussed a possible plea
agreement with Gray, but Gray was “very concerned” about testifying against Hester
because he feared “physical retribution.”

                        Gray testified he told
Garcia-Barron that he was afraid to testify but

Garcia-Barron
never discussed with him the potential effect of testifying or his potential
defenses.  Gray stated he told
Garcia-Barron that he was at the nightclub. 
Gray said Garcia-Barron never discussed a defense theory with him, his
post-incident statements, trial strategy, or possible witnesses.  Gray testified he read Lang’s statement and
thought his testimony would be beneficial but without any explanation,
Garcia-Barron told Gray that he would not call Lang to testify.  On cross-examination, Gray said that while
they were at the gas station, Gardner threw her shoe at Hester’s car, and Hester
told Gardner to “‘Get the fuck away from my car.’”  Gray admitted that during the trial he never
told Garcia-Barron he wanted to present a different defense and he never told
the trial judge he wanted to testify.  Gray
added there were “consequences” when you testify against “known gang members.”  On redirect examination, Gray testified that
when they were on the freeway, the other car’s driver was driving “in a
road-rage-type manner” and Hester retrieved a gun, rolled down the window, and
fired the gun out of the car while Gray sat silently. 

                        The trial court admitted
into evidence declarations supporting Gray’s assertion he was not an active
participant of East Coast at the time of the offenses.  The court also admitted into evidence
declarations from Shively and a friend’s mother indicating Shively was not a
member or associate of East Coast.

                        The court also admitted
into evidence interviews with Gardner, Lang, Solomon, and Gray.

                        Dieringer and three
other detectives interviewed Gardner after Ackerman interviewed her.  Gardner said they were leaving the nightclub
when two guys initially tried to talk to her and then “started yelling out, . .
. [fuck you] guys East Coast.”  Gardner
stated Little said “something like those are our girls, stop.”  She said Little said, “cuz,” and the men
replied, “East Coast.”  Gardner claimed
Little did not make any gang challenges “this time,” but she did say “Cuz means
you’re a Crip.”  Gardner stated they went
to the gas station, parked, and got out when the same men in the same car drove
next to them and rolled down their windows. 
Gardner said Little told them to get back into the vehicle and she did
not “recall them saying anything[]” and “[she] didn’t hear the guys saying
anything” because Little told her to get into the vehicle.  She did not claim the men got out of the car
or said anything to them.  Gardner
explained they drove onto the freeway and “out of nowhere” the same car was
next to them and they were shooting at them. 
Gardner admitted she did not have her glasses on but she is
nearsighted.  When Gardner again stated
Little said, “cuz,” an officer stated that is because “he’s affiliated.”  Gardner replied, “Yeah.”  Gardner did not think there were any other
gang challenges, but she was walking away.

                        During his interview,
Lang told the officer that he and Solomon went outside to wait because Little
and Gardner wanted to dance to one more song. 
Lang said that when he went back inside, Little was arguing with someone
because he disrespected Gardner.  Lang
stated he did not know the entire story of what happened.  Lang did not see their faces.  When asked if he heard any gang challenges,
Lang replied, “I didn’t know nothing about it.” 
Lang told the officer, “The driver’s side rolled down his window[]” and
“[t]hen they start[ed] shooting.”  Later,
he stated, “And then the driver just let down his window just a little, so, he
[could] stick the gun out like halfway and start shooting.”  He said, “Before I could even tell everybody
I see him just . . . stick a gun out the window” and he fired the gun.  He insisted the gun was sticking out of the
driver’s side window.  With regard to the
seating arrangements in the car, Lang told the officer Little drove to the gas
station and then onto the freeway.  Lang
said he was in the passenger seat, Solomon sat behind him in the rear passenger
seat, and Gardner sat behind Little in the rear driver’s side seat.  Lang initially claimed Little got out of the
vehicle to make sure everyone was okay and the truck hit him.  Later, he stated when the vehicle came to a
stop, Little and Gardner switched spots and when Gardner could not start the
car, Little got out of the rear driver’s side seat and the truck hit him.   

                        In Solomon’s first
interview, she told the officer that Lang was in the front passenger seat, she
sat behind Lang in the rear passenger side seat, and Gardner was in the rear
driver’s side seat.  She gave a slightly
different version of what happened after the vehicle came to a stop on the
freeway.  She said everyone got out and
Gardner got into the front seat and Little sat behind her in the rear driver’s
side seat.  She stated that when Gardner
could not start the car, Little got out of the vehicle and the truck hit
him.  In Solomon’s second interview, she
said Gardner drove to the gas station but Little drove from the gas station
onto the freeway.  She explained that
when the vehicle came to a stop on the freeway, Little and Gardner switched
places and when Gardner could not start the vehicle, Little got out and the
truck hit him.  The officer characterized
Solomon’s version of the story as “completely different” from Gardner’s.  In both interviews, Solomon said she was
sitting in the vehicle while Lang walked back into the nightclub to get Little
and Gardner. 

                        During his interview,
Gray initially denied being at the nightclub but eventually admitted he was
there and he was a passenger in the vehicle. 
Gray said he fired “a couple[]” shots but later said the driver was the
shooter and he did not touch the gun. 
Gray eventually told officers that Hester was the driver.href="#_ftn8" name="_ftnref8" title="">[8]

                        The trial court denied
Gray’s request to call Rose as a witness. 
After the parties rested, a briefing schedule was set.  Gray and the prosecutor filed
post-evidentiary hearing briefs.

                        In June 2011, the trial
court issued its tentative decision.  At
the hearing on the motion for a new trial, the trial court indicated it read
and considered the substantial briefing, and the court heard counsel’s
argument.  The trial court denied Gray’s new trial
motion, issuing an exhaustive 57-page final order that superseded the court’s
tentative decision.

                        After a detailed
discussion of the evidence, the trial court concluded sufficient evidence
supported each of Gray’s convictions and the related enhancements.  The court discussed each offense and detailed
the evidence that supported each count and the enhancements.  The court stated:  “[S]ufficient, credible evidence supports a
reasonable conclusion Gray and his crime partner pursued the victims onto a
freeway where Gray intentionally fired multiple gun shots from close range at a
moving vehicle driven by Little to resolve an earlier gang related verbal
altercation between the two men.  Gray’s
actions ultimately led to Little’s death. 
The evidence supports the jury’s verdict finding Gray guilty of first
degree murder.”  The court characterized
“[t]he prosecution’s case against Gray [as] strong.”

                        With respect to the
alleged prosecutorial misconduct, the trial court explained that it was not
until after trial that Gray learned Gardner received relocation payments ($3,875
before her testimony and $2,625 after her testimony), and that her testimony
was significantly different than her prior statements.  The court concluded that although the
prosecution should have disclosed the payments before trial (as the prosecutor conceded),
Gray was not prejudiced because “there is no reasonable probability the outcome
of the trial would have been different had the information . . . been timely
disclosed to the defense before trial.” 
The court then cited to all the evidence supporting Gray’s convictions.

                        As to the other alleged
instances of prosecutorial misconduct, the court explained the prosecutor did
not have a duty to correct his own witness’s testimony when it was explored at
length on cross-examination and readily apparent to the jury.  The court also stated the prosecutor did not
misstate the law when he argued it did not matter what role each defendant
played in committing the offenses.  The
court opined the prosecutor’s argument properly summarized the law and asked
the jury to convict Gray based on reasonable inferences derived from the
evidence.  The court concluded that in
any event, Gray was not prejudiced because the evidence against him was
“strong” and the court again detailed the evidence.  Finally, the court stated the prosecutor did
not commit misconduct in presenting a theory not supported by the
evidence.  The court noted the evidence
at trial was inclusive as to who drove the car and as to who fired the gun.  The court reasoned there was substantial
circumstantial evidence from which the jury could reasonably conclude Gray was
the shooter.  The court concluded the
prosecutor’s charging decision did not establish he changed his theory of the
case in bad faith.                       

                        Finally, the trial court
addressed what was the subject of the evidentiary hearing, Gray’s assertion
Garcia-Barron provided ineffective, prejudicial representation, which the court
characterized as “a close call.”  The
court stated Garcia-Barron did not hire an investigator, did not review all the
discovery, did not interview any witnesses, produced little work product, and
could not recall what steps he took to defend Gray.  The court said Garcia-Barron did not file any
motions and made few objections during trial. 
The court explained that although Garcia-Barron’s lack of pretrial
preparation was disturbing, the court could not presume Gray was prejudiced
(see U.S. v. Cronic (1984) 466 U.S.
648, 658), because at the time of trial Garcia-Barron was an active attorney
who gave opening and closing statements, cross-examined witnesses, and actively
participated in Gray’s defense.  The
court then addressed each of Gray’s claims.

                        First, Garcia-Barron’s
pretrial preparation was deficient and his decision to proceed with an
identification defense was unreasonable because both Gardner’s and Kingi’s
identification of Gray were strong.  The
court concluded, however, Gray was not prejudiced because he was not deprived
of a potentially meritorious defense. 
The court reasoned there were too many pitfalls associated with offering
a defense that Hester was the shooter and Gray the unwitting bystander.

                        Second, the court
explained that based on Garcia-Barron’s deficient pretrial preparation, it
could not conclude his decision not to move for severance was a reasonable tactical
decision based on adequate investigation. 
The court concluded, however, Gray was not prejudiced because the court
would have denied the motion, and even if the court would have granted the
motion, Gray’s credibility would have been damaged by his prior inconsistent
statements.

                        Third, the court
concluded Gray did not establish Garcia-Barron’s failure to object to leading
questions was deficient, and in any event, Gray was not prejudiced because the
prosecutor would have been able to obtain the same testimony from nonleading
questions.  The court noted that Gardner
was cross-examined extensively about her alcohol and drug consumption, whether
she was wearing her prescription eyeglasses, where she was sitting in the
vehicle, her identification of the defendants and the vehicle, and the
confrontation at the nightclub.

                        Fourth, the court noted
Garcia-Barron did cross-examine Gardner on some of the topics Gray complains
about.  The court opined Garcia-Barron’s
cross-examination of Gardner could have been more thorough but it tracked
Hester’s defense counsel’s cross-examination of Gardner on many of the relevant
issues and Garcia-Barron’s decision to limit his cross-examination was
reasonable.  The court added any testimony
by Gardner about other witnesses’ testimony would have been inadmissible.  The court added, however, that based on
Garcia-Barron’s deficient pretrial preparation, his decision not to
cross-examine Gardner on her prior statements and not to call Lang or Solomon
to testify was unreasonable, but Gray was not prejudiced.  The court opined the discrepancies in
Gardner’s testimony were minor, and Lang’s and Solomon’s testimony would not
have materially contradicted Gardner’s testimony.  Further, the court said Lang’s testimony
could have been damaging to Gray because it would have corroborated Gardner’s
testimony the gunshots came from a Dodge Magnum.

                        Finally, the court
concluded Garcia-Barron was not deficient for failing to object to Rose’s
qualifications as a gang expert.  After
repeating his background, training, and experience, the court noted Earley
testified Rose was qualified to testify as a gang expert.  The court stated, however, that based on
Garcia-Barron’s deficient pretrial preparation, it could not be said his
failure to challenge the factual basis for Rose’s opinion was a reasonable
tactical decision based on adequate investigation.  The court opined it was not reasonably
probable Gray would have received a more favorable result because the evidence
he offered would not have clearly established he was not an

East
Coast gang member.  The court concluded
Garcia-Barron was not deficient for failing to object to various items of
hearsay evidence upon which Rose based his decision Gray was an active
participant in East Coast because expert witnesses are entitled to base their
opinion on hearsay.

                        The trial court
sentenced Gray to life in prison without the possibility of parole and a
consecutive term of 25 years to life on the vicarious use of a firearm
enhancement on count 1.  The court imposed
concurrent sentences or stayed the sentences on the other counts.  Gray appealed. 

                        We affirmed Gray’s
convictions in Gray I, supra, G045645.  Gray filed a petition for rehearing and a href="http://www.fearnotlaw.com/">motion to augment the record.  In the rehearing petition, Gray argued, among
other things, the transcript of his interview with police that attorney Michael
William Clough offered into evidence at the hearing on the new trial motion conflicts
with the compact disc (the CD) of the same interview.  This is important because in the transcript
Gray admitted he fired a couple shots, but Gray claims the CD shows there is no
evidence Gray made this crucial admission; rather the CD reflects Hester fired
a couple shots.  Gray moved to augment
the record with the CD.  The Attorney
General filed an answer opposing both the rehearing petition and the
augmentation motion.

                        We granted rehearing,
denied the motion to augment the record, and stayed the appeal.  In the same order, we invited Gray to file a
petition for writ of habeas corpus addressing the issue of whether he was
entitled to re-litigate his new trial motion because of the alleged discrepancy
between the transcript of his interview and the CD of his interview.

                        Gray filed a request for
judicial notice, asking we take judicial notice of the CD.  We denied Gray’s request for judicial
notice.  Gray submitted an application
for habeas corpus investigator fees. 

                        We filed an order
reserving a ruling on Gray’s application for investigator fees.  Instead, we ordered the parties to file
supplemental letter briefs on the issue of whether attorney Clough has a
disqualifying conflict of interest because he apparently inadvertently offered
into evidence the inculpatory statement he now claims was transcribed
incorrectly. 

                        Gray filed the
following:  (1) a supplemental letter
brief addressing the conflict issue; (2) a supplemental letter brief indicating
he does not intend to file a petition for writ of habeas corpus until we decide
the appeal and withdrawing his request for habeas corpus investigation fees;
and (3) a renewed request for judicial notice. 
Clough argues he does not have a disqualifying conflict of
interest.  The Attorney General contends
Clough does not have a legal conflict but he does have an ethical conflict.

DISCUSSION

>I. 
Ineffective Assistance of Counsel

                        Ineffective
assistance of counsel is not listed as a statutory ground for a new trial.  Nonetheless, the California Supreme Court has
held that a defendant may seek a new trial on this ground.  (People
v. Fosselman
(1983) 33 Cal.3d 572, 582-583;

>People
v. Taylor (1984) 162
Cal.App.3d 720, 724 (Taylor).)

                        A
statutory motion for a new trial is addressed to the sound discretion of the
trial court, and its ruling will not be disturbed unless a clear abuse of
discretion is established.  A different
analysis is required when a nonstatutory motion for a new trial premised on the
denial of constitutional rights is
made.  This requires the application of a
two-step process.  (Taylor, supra, 162 Cal.App.3d at p. 724.)

                        In
the first step, the trial court finds the relevant facts.  “On appeal, all presumptions favor the trial
court’s exercise of its power to judge the credibility of witnesses, resolve
any conflicts in testimony, weigh the evidence, and draw factual
inferences.  The trial court’s factual
findings, express or implied, will be upheld if they are supported by
substantial evidence.”  (>Taylor, supra, 162 Cal.App.3d at p.
724.)

                        In
the second step, the trial court must decide based upon the facts it has found
whether defendant was deprived of his right to the effective assistance of
counsel—i.e., whether counsel’s performance was deficient and whether the
defendant was prejudiced as a result.  (>Taylor, supra, 162 Cal.App.3d at pp.
724-725.)  “To the extent that these are
questions of law, the appellate court is not bound by the substantial evidence
rule, but has ‘“the ultimate responsibility . . . to measure the facts, as
found by the trier, against the constitutional standard . . . .”  [Citation.] 
On that issue, in short, the appellate court exercises its independent
judgment.’  [Citations.]”  (Id.
at p. 725.)

                        In
order to establish ineffective assistance of counsel, a defendant has the
burden to establish his counsel’s performance was deficient under an objective
standard of reasonableness and that it is reasonably probable that a result
more favorable to defendant would have occurred in the absence of counsel’s
failing.  (Strickland v. Washington (1984) 466 U.S. 668, 687-698 (>Strickland); People v. Bolin (1998) 18 Cal.4th 297, 333.)  To determine prejudice, “we must compare the
evidence that actually was presented to the jury with that which could have
been presented had counsel acted appropriately. 
[Citation.]”  (>Karis v. Calderon (9th Cir. 2002) 283
F.3d 1117, 1133.)  If an ineffective
assistance of counsel claim can be decided on the ground of lack of prejudice,
the reviewing court need not determine whether counsel’s performance was
deficient.  (Strickland, supra, 466 U.S. at p. 697; In re Crew (2011) 52 Cal.4th 126, 150.)

                        Generally,
Gray’s central claim is Garcia-Barron presented an implausible defense based on
mistaken identification when a viable defense existed based on evidence Hester
was the shooter and Gray merely an innocent passenger unaware of Hester’s
violent plan.  Gray’s contentions can be
grouped into three general categories:  Garcia-Barron
pretrial preparation; his questioning
of Gardner; and his questioning of Rose. 
With respect to the first category, Gray makes several
contentions that essentially all stem from Garcia-Barron’s failure to
investigate the case, interview witnesses, conduct legal research, request
additional discovery, or review all
the discovery.  Needless to say,
Garcia-Barron’s pretrial preparation was grossly inadequate.  His client faced a special circumstance
murder charge and life in prison without the possibility of parole.  Garcia-Barron testified he does not
personally interview witnesses, he hires an investigator to do that, but in
this case, he did not hire an investigator. 
He admitted he did not review all the discovery, did not pick up
additional discovery that was left for him at the district attorney’s office,
or request additional discovery, including any additional video surveillance
footage from the nightclub that may have
been informative as to the nature of the altercation.  His case file reflected a dearth of work
product.  And during his testimony, he
repeatedly said he could not remember what he did to defend Gray.  Garcia-Barron’s admissions demonstrate he
provided grossly ineffective pretrial preparation.       

                        Garcia-Barron’s
deficient pretrial preparation compels the conclusion his failure to file a
severance motion was deficient. 
Garcia-Barron’s admissions he did not interview witnesses, review all
the discovery, or conduct legal research militate against the conclusion his
decision to not file a severance motion was the result of a reasoned analysis
of the law and facts of the case. 
Although the trial court stated it would have likely denied such a
motion, Garcia-Barron’s complete lack of pretrial preparation requires this
court to conclude his failure to file a motion to sever Gray’s trial from
Hester’s was ineffective.  

                        Garcia-Barron’s
deficient pretrial preparation also compels the conclusion his identity defense
was deficient.  His failure to
investigate the case, interview witnesses, or rev




Description Darrell Martin Gray appeals from a judgment after a jury convicted him of special circumstances first degree murder, shooting at an occupied motor vehicle, conspiracy to commit murder, three counts of premeditated and deliberate attempted murder, and street terrorism, and found true he committed the offenses for the benefit of a criminal street gang, and he was a gang member who vicariously discharged a firearm and caused great bodily injury. Gray argues his defense counsel, who has since been disbarred, was ineffective and the prosecutor committed multiple instances of misconduct. In our prior nonpublished opinion, People v. Gray (Feb. 25, 2013, G045645) (Gray I), we concluded Gray’s trial counsel was inadequate and the prosecutor committed one instance of misconduct, but we also concluded Gray was not prejudiced.
Gray filed a motion to augment the record and a petition for rehearing. In his rehearing petition, Gray argued, among other things, we erred in relying on a transcript of Gray’s pretrial admissions to investigators because the transcript Gray’s appellate counsel introduced into evidence at the new trial hearing did not accurately reflect Gray’s video recorded statements. The video, however, was never introduced into evidence or marked as an exhibit, and therefore, is not part of the record on appeal. Consequently, we denied his motion to augment the record but granted the rehearing petition and stayed the appeal to allow Gray time to file a petition for writ of habeas corpus. Gray filed a request for judicial notice, which we also denied. Gray filed a request for habeas corpus investigation fees. Instead of ruling on that motion, we ordered the parties to brief the issue of whether Gray’s appellate counsel, the same counsel who represented Gray during the motion for new trial proceedings, has a disqualifying conflict of interest because he apparently inadvertently admitted into evidence at the new trial hearing the evidence that is the subject of the discrepancy. The parties briefed that issue, but Gray also filed a renewed motion for judicial notice and a brief indicating he will not file a petition for writ of habeas corpus until his appeal is resolved.
Thus, we again conclude Gray’s defense counsel was ineffective and the prosecutor committed one instance of misconduct but Gray was not prejudiced. We affirm the judgment.
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