P. v. Lee
Filed 4/17/13 P. v. Lee CA!/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff
and Respondent,
v.
DRE’SHAWN MARKUISE LEE,
Defendant
and Appellant.
A134215
(Alameda
County
Super. Ct.
No. C166071)
Defendant
was convicted following a jury trial of one count of
§ 187), and assault with an assault
weapon (Pen. Code, § 245, subd. (a)(3)), with associated enhancements
for personal and intentional discharge of a firearm, and infliction of great
bodily injury or death (Pen. Code, §§ 12022.5, subd. (b), 12022.7, subd. (a),
12022.53, subds. (b), (d)). He received
an aggregate state prison term of 65
years to life.
In this
appeal defendant claims that the trial court’s refusal to provide him with a
free transcript of the trial proceedings in connection with his new trial
motion and the sentencing hearing was a denial of his
grant defendant’s request for a transcript was not prejudicial error, and
affirm the judgment.
At around
4:00 a.m. on December 28, 2009, Oakland police officers responded to the report
of a shooting at the 1400 block of 51st Avenue in Oakland. Two shooting victims were discovered, both
bleeding from their wounds. The murder victim, Gary Jackson, was lying in
the front yard of a residence at the intersection of 51st Avenue and
International Boulevard in Oakland.
Angelica Mourning was shot and wounded as she sat in the passenger seat
of Jackson’s car, and was found at the northeast corner of 51st Avenue and
International Boulevard.
When police
officers contacted Jackson, he had been shot twice, and “wasn’t looking in good shape.†Jackson gave his name and birth date to one
of the officers. The officer then
immediately asked “who did that to him,†and Jackson responded by moving his
head to the south in the direction of the two-story residence at 1425 - 51st
Avenue, and uttering, “upstairs.†The
victim thereafter became incoherent and nonresponsive.
Jackson was
taken to Alameda County Hospital, where he died a few hours later from a
gunshot that entered through the left buttock, passed in a 40 degree angle
through the urinary bladder, the large intestine, and major blood vessels in
the pelvic area and abdominal cavity.
internal bleeding and organ damage from the gunshot wound to the torso that
resulted in severe loss of blood pressure and irreversible shock. The trajectory of the bullet through the body
was possibly consistent with the victim “running from someone†when he was
shot, although the location of the shooter was not subject to determination
without knowledge of the position of the victim when the shot was fired. The lack of powder burning on the body
indicated that the shot was not fired from close range.
Mourning
was also treated at the hospital for three gunshot wounds: two to her right
arm, and one to her left
wrist. After the shooting, she was
not able to move her right arm.
Police
investigation at the scene of the shooting resulted in the discovery and
seizure of numerous 7.62 by 39
millimeter shell casings from street, sidewalk and stairs in front of 1425 -
51st Avenue. Bullets fragments were
found at the scene, and bullet strike marks were observed in Jackson’s car
parked across the street from the 1425 - 51st Avenue residence.
At 8:15
that same morning, Vernon Days, a maintenance worker for the Oakland Housing
Authority, found a Norinco assault rifle, missing its magazine, in a box next
to a dumpster located on 50th Avenue, behind the 1425 - 51st Avenue
residence. Days gave the rifle to a
passing police officer, who extracted a bullet from the chamber of the
gun. An examination of the Norinco
assault rifle by a firearms expert revealed that all 14 shell casings found at
the scene of the shooting were fired from that firearm.
DNA samples
were taken from the trigger and butt of the Norinco assault rifle. The trigger sample contained a “mixture of
DNA†from two people, although the two donors were successfully differentiated
during testing. The “major donor DNA
profile†contributed “more DNA than the other donor,†who was a “very minorâ€
contributor. The samples taken from the
rifle were compared to DNA profile developed from a sample taken from defendant. Defendant’s DNA profile was “consistent with
all of the DNA types†obtained for the “major donor†of the “biological
material from the trigger.†The
statistical probability of selecting another person with the same major donor
profile “would be one in 33 million.â€
The sample taken from the butt of the rifle indicated a mixture of at
least three donors. Defendant could not
“be eliminated as one of the potential donors to the mixture on the butt of the
rifle,†although further comparison was limited due to the multiple potential
donors and the lack of DNA types for all the donors.
Angelica
Mourning testified at trial. In December
of 2009, she worked as a prostitute for Jackson, known to her by the nickname
“Fat Boy,†around 48th Avenue and International Boulevard in Oakland. Early in the morning on December 28, 2009,
Jackson drove Mourning in his dark purple or blue car to 48th and International
to work as a prostitute. While there,
Jackson received a call from Darnell Craig, known as D.C., during which they
talked “about snitching or something like that.†Jackson then parked the car on 48th, between
Bancroft and International, got out, and crossed the street to talk to
Craig. When Jackson returned to the car
he told Mourning that Craig said defendant accused him “of snitching.â€
Jackson
drove to 51st and International, where he parked the car near the
intersection. He directed Mourning to
“stay in the car†while he left to “go solve something real quick.†Jackson walked across the street, where he
talked to Craig for about five minutes.
Mourning did not see Jackson or Craig in possession of a gun. She remained in the car, talking by phone
with Craig’s girlfriend “Juicy.â€
Mourning then heard a round of gunshots from across the street, and “balled
up in the front seat.†The gunshots
ceased momentarily, then resumed and hit the car. The car window glass was shattered and
Mourning was hit by three of the shots.
Mourning testified that she did not see the shots fired, but was “pretty
sure†Craig was not the shooter. After
Mourning was shot, a “lady†approached to help, but Craig “drove up and she got
inside [his] car and they drove off.â€
Mourning left the car and dragged herself, bleeding, to the intersection
of International and 51st, so the ambulance personnel or police would see her.
Chaenda
Men, defendant’s girlfriend, heard the shooting from her bedroom on the second
floor of the residence at 1425 - 51st Avenue, where she lived with her mother,
two brothers, defendant, and their son.
Around 4:00 a.m. on December 29, 2009, Men was sleeping when defendant
arrived home and took a “long gun†– similar in length to the rifle found near
the dumpster – out of the bedroom closet.
Defendant said he was “sorry†if “he made too much noise,†then left the
house through the front door. Men heard
defendant walk to the front of the house, followed by a “lot†of gunshots, more
than ten. She then heard a woman scream
and yell for help.
Men did not
see defendant again until late that same afternoon, when he appeared at the
front of the house with his mother and sister.
Defendant told Men “it was too dangerous†for them to stay in Oakland,
so they were “leaving to go to his mom’s†house in Tracy. Men gathered her belongings and they drove
with defendant’s mother to Tracy, where they stayed for six months. While they were living in Tracy, defendant
told Men that he killed Jackson because he “was a snitch.†Defendant also mentioned to Men that he threw
the gun away after the shooting.
In an
interview with the police on January 19, 2010, Men initially lied to protect
defendant by stating that she had not seen him the morning of the
shooting. Later in the interview,
however, she felt there was “no point in lying,†and gave a statement that was
consistent with her testimony at trial.
Men also stated during the interview that defendant also told her
“Jackson was with another girl†when the shooting occurred.
Men
testified that she and defendant “broke up†in July of 2010, over defendant
“seeing other women,†even while she was pregnant with his child. Men was “upset†with defendant, and told her
mother she “hated him,†but insisted that she testified truthfully at trial
because “it’s the right thing to do.â€
Evidence
was presented to corroborate Men’s testimony that Jackson was killed by
defendant for being a “snitch.†An
Oakland police officer testified that she interviewed Jackson in connection
with an armed robbery at a taco truck at 48th Avenue and International
Boulevard on September 28, 2009. Jackson
told the officer he was present at the taco truck, and observed defendant
carrying a shotgun. After Jackson
identified defendant and signed a statement, defendant was arrested for
possession of the shotgun. Men confirmed
that defendant was arrested in September of 2009, and spent a month in jail
before he was released and the charges were dismissed.
Marcel
Williams provided a statement to an Oakland police investigator on January 5,
2010.
Jackson and Craig. At just after
midnight on the date of the shooting, Williams was in Craig’s car with Craig,
defendant, and some others at 48th and Bancroft. Defendant complained that Jackson “snitchedâ€
on him “with that shotgun†at the taco truck.
Referring to Jackson, Craig suggested that defendant “knock him downâ€
for being a snitch. Defendant stated
that he intended to retaliate, but would “make it look like an accident.â€
According
to the statement by Williams, Craig then phoned Jackson and told him defendant accused
him of being a snitch. Jackson quickly
arrived at 48th Street in a purple car, accompanied by a woman known to
Williams as “Little Angel.†Jackson was
confrontational, and exclaimed, “I ain’t no snitch.†After he explained that he did not give any
information to the police that implicated defendant in the prior possession of
the shotgun, the encounter “calmed down.â€
Craig and Jackson separately drove onto Bancroft, toward defendant’s
house on 51st.
Williams’s
testimony at trial was entirely inconsistent with his prior statement to the
police. Williams claimed that he did not
know Jackson, defendant, or Craig, and did not give the statements to a
homicide inspector that were heard on the recorded interview and played for the
jury immediately following his testimony.
Defendant
complains that the trial court erred by failing to provide him with a free
reporter’s transcript of the trial for review by his substitute appointed
attorney. After the conclusion of the
trial and pronouncement of the jury verdict, defendant moved for substitution
of counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The trial court
granted the motion, and defendant’s new counsel thereafter requested a trial
transcript to support an accompanying motion for a new trial on grounds of
ineffective assistance of counsel at trial.
The bases for the claim of ineffective assistance of trial counsel were
specifically delineated in defendant’s declaration submitted in support of the
new trial motion. The court denied both
the request for a transcript and the new trial motion based on the stated
findings that defendant was not deprived of his due process rights, trial
counsel was not incompetent, and no prejudice to defendant resulted.
Defendant
argues that following the substitution of counsel, the denial of his request
for a reporter’s transcript of the trial proceedings “served to guarantee that
he would not have effective representation for his new trial motion and [the]
sentencing proceedings.†He asserts that
without the transcript “[s]uccessor counsel could not properly investigate
potential grounds for a new trial motion or adequately argue the ones
identified in the declaration attached to appellant’s new trial motion.†The result, complains defendant, was a “total
deprivation†of his “Sixth and Fourteenth Amendment right to the assistance of
counsel at critical stages of the criminal proceedings against him.†He requests that we reverse the judgment and
remand the matter “to the trial court for further new trial motion and
sentencing proceedings conducted with the benefit of full trial transcripts.â€
I. Defendant’s Right to Effective
Assistance of Counsel.
We commence
our review by delineating the settled principles that govern defendant’s claim
of constitutionally inadequate representation.
(In re Lucas (2004) 33 Cal.4th
682, 721.) “To establish a claim of
inadequate assistance, a defendant must show counsel’s representation was
‘deficient’ in that it ‘fell below an objective standard of reasonableness
. . . under prevailing professional norms.’ [Citations.]
In addition, a defendant is required to show he or she was prejudiced by
counsel’s deficient representation.
[Citations.] In determining
prejudice, we inquire whether there is a reasonable probability that, but for
counsel’s deficiencies, the result would have been more favorable to the
defendant.†(People v. Frye (1998) 18 Cal.4th 894, 979.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.†(People
v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.)
In
addition, the defendant must affirmatively establish that counsel’s actions or
omissions were not based on a rational tactical reason. (In re
Hill (2011) 198 Cal.App.4th 1008, 1016.)
“ ‘ “[If] the record on appeal sheds no light on why counsel
acted or failed to act in the manner challenged[,] . . . unless
counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,†the claim on appeal must be
rejected.’ [Citations.]†(People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Where the record is silent as to the reasons
for particular actions of trial counsel, an appeal is not the proper vehicle
for determining competency. (
v. Wilson (1992) 3 Cal.4th
926, 936.) “ ‘Because the
appellate record ordinarily does not show the reasons for defense counsel’s
actions or omissions, a claim of ineffective assistance of counsel should generally be made in a
petition for writ of habeas corpus, not on appeal.’ [Citation.]â€
(People v. Lucero (2000) 23
Cal.4th 692, 728–729.)
We agree with defendant that the
constitutional right to competent
representation applies at all critical stages of a criminal action in which
the substantial rights of a defendant are at stake, including the presentation
of a new trial motion and sentencing proceedings. (See People
v. Sanchez (2011) 53 Cal.4th 80, 90–91;People
v. Crayton (2002) 28 Cal.4th 346, 362; People
v. Smith (1993) 6 Cal.4th 684, 695; People
v. Bauer (2012) 212 Cal.App.4th 150, 155.)
We also know from the record that the trial court granted defendant’s
counsel to present the new trial motion and represent defendant at the
sentencing hearing.
The focus of our inquiry, then, is
upon weather the failure of the trial court to provide substitute counsel with
a reporter’s transcript of the trial caused the representation associated with
presentation of the new trial motion to fall below an objective standard
of reasonableness. We must further
determine if defendant suffered prejudice as a result of counsel’s lack of
access to the transcript.
II. Defendant’s Motion for a New
Trial.
Our
assessment of the propriety of the trial court’s denial of defendant’s request
for a reporter’s transcript also implicates the standards that govern new trial
motions in the context of the present case.
As the trial court recognized,
“Although ineffective assistance of counsel is not one of the statutory grounds
for granting a new trial, the issue may nonetheless be asserted as the basis
for a motion for new trial.†(
1137, 1143.) In order to prevail on a
motion for a new trial alleging ineffective assistance of counsel, the
defendant must show that counsel’s deficient performance withdrew a potentially
meritorious defense or otherwise prejudiced his case to the extent that the
trial cannot be relied on as having produced a just result. (People
v. Earp (1999) 20 Cal.4th 826, 870; People
v. Fosselman (1983) 33 Cal.3d 572, 583–584.) The granting or denial of a motion is a
matter within the sound discretion of the trial court, and in determining
whether there has been a proper exercise of discretion on such motion, each
case must be judged from its own factual background. (People
v. Soojian (2010) 190 Cal.App.4th 491, 517.)
III. Defendant’s Right to a Trial Transcript.
We recognize that equal protection
principles require an indigent criminal defendant to be furnished with a free
reporter’s transcript of prior proceedings if the transcript is needed for
proper appellate review or for an effective defense. (Griffin
v. Illinois (1956) 351 U.S. 12, 18–19; Britt
v. North Carolina (1971) 404 U.S. 226, 227–230.) The rule seeks to ensure that an indigent
defendant receives “the basic tools of an adequate defense or appeal, when
those tools are available for a price to other [defendants].†(Britt,
supra, at p. 227.) Two factors were
identified in Britt as relevant to
the determination of need: (1) the value of the transcript to the defendant in
connection with the appeal, and (2) the availability of alternative means to
fulfill the same function as the transcript.
(Ibid.)
The absolute constitutional right of
an indigent criminal defendant to a free reporter’s transcript for an appeal
does not extend to other stages of criminal proceedings. For purposes other than pursuing an appeal, a
“free transcript is a privilege committed to the discretion of the trial
judge.†(United States v. Banks (M.D. Pa. 1974) 369 F.Supp. 951, 953; see
also United States v. MacCollom
(1976) 426 U.S. 317, 325; People v.
Hayden (1994) 22 Cal.App.4th 48, 55; In
re Darrell T. (1979) 90 Cal.App.3d 325, 333.) An indigent defendant preparing a new trial
motion “is not entitled, as a matter of absolute right, to a full reporter’s
transcript of his trial proceedings . . . .†(People
v. Lopez (1969) 1 Cal.App.3d 78, 83; see also People v. Markley (2006) 138 Cal.App.4th 230, 241;
1689, 1700.)
Instead, a transcript must be
furnished for a new trial motion only when the defendant makes a showing that
the requested transcript is necessary for effective representation or to
properly present and support arguments asserted in the new trial motion. (People
v. Markley, supra, 138 Cal.App.4th 230, 241; People v. Bizieff, supra, 226 Cal.App.3d 1689, 1700–1702.) A trial court “may properly deny a request
for free transcripts to prepare a motion for new trial where the indigent
defendant fails to show a particularized need for transcripts.†(People
v. Bizieff, supra, at p. 1702; see also People
v. Hosner (1975) 15 Cal.3d 60, 64.)
The necessity of the transcript for the preparation of an effective
motion for a new trial is not presumed, but rather “the defendant must
demonstrate specific need.†(
242.) “The court must decide each case
on its own facts and circumstances in determining whether the defendant has
made a sufficient showing of need†for the transcript. (Id.
at p. 241.)
A significant factor in the case
before us is that new counsel, unfamiliar with the just-concluded trial, had
been appointed to present the new trial motion for defendant. Even so, for several reasons we find that
defendant failed to make the requisite showing of a particularized need for the
transcript to secure effective representation.
First, the reasons presented in support of the very comprehensive new trial
motion related almost exclusively to former counsel’s omissions at trial: failure to offer proof that Marcel Williams was
not acquainted with defendant and was coerced by the interrogator into giving a
statement to the police; failure of counsel to produce alibi evidence and
testimony that defendant was not an occupant of 1425 - 51st Avenue on the date
of the shooting; failure to produce a witness to testify that Darnell Craig was
seen with the murder weapon before the shooting; failure to more effectively
show that Chaendra Men was angry with defendant and therefore lacked
credibility as a witness; the failure to inquire into police “suggestions†to
Angelica Mourning during interviews with her; and, failure to present
additional evidence on the trajectory of the bullet that struck the victim, the
DNA results, and the victim’s statement to the police at the scene of the
shooting.
were effectively presented without benefit of the trial transcript, to a judge
who had intimate knowledge of both the evidence offered at trial and former
counsel’s performance. The transcript
was not of critical value to defendant’s claims of lack of investigation by
counsel and failure to present further evidence.
Also, alternative means for
gathering the information necessary to support the new trial motion were
available. None of the proffered bases
for granting a new trial were dependent entirely on reference to the trial
transcript. Defendant’s substitute
attorney was not precluded from discussing with both defendant and former
counsel the evidence presented at trial and the reasons for the claimed
deficient representation. Thus,
defendant has failed to demonstrate a particularized need for the transcript.
Finally, this court, with a full
transcript of the trial available to us as part of the record on appeal, can
now assess the claims of incompetence of counsel in the context of the motion
for new trial. Our examination of the
record persuades us that defendant’s assertions of ineffective assistance of
counsel are either not sustained, fall into the realm of tactical decisions, or
fail for lack of a showing that defendant was prejudiced by counsel’s
representation. The totality of the evidence that proved defendant’s guilt of the
murder came from diverse sources that included both convincing physical
evidence and independently corroborated testimony from several witness, and was
quite overwhelming. The failure to
provide defendant with the trial transcript did not deprive him of effective
assistance of counsel, and was harmless under any standard. Under the facts presented here, the trial
court did not commit prejudicial error by denying defendant’s request for the
transcript.
Accordingly, the judgment is
affirmed.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Margulies,
Acting P. J.
__________________________________
Banke,
J.
name="_ftn1" title="">[1] Jackson also received a second, grazing gunshot wound
to his lower lip that was “very, very minor,†and did not contribute to his
death.
name="_ftn2" title="">[2] The interview was recorded and played for the jury.
