P. v. Lee

















Filed 5/15/13 P. v. Lee CA1/1











NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST APPELLATE
DISTRICT



DIVISION ONE






>

THE PEOPLE, Plaintiff and Respondent, v. DRE’SHAWN MARKUISE LEE, Defendant and Appellant.

A134215 (Super. Ct. No. C166071) ORDER MODIFYING OPINION >AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:



It is
ordered that the opinion filed herein on April 17, 2013, be modified
in the following particulars:



1. On page 12, third sentence, beginning “The
failure to provide” is deleted. The
following sentence is inserted in its place:




Finally, upon our review
of the record and in light of the information otherwise available to
defendant’s substitute attorney, we further conclude that defendant’s
substitute attorney did not require a free trial transcript to properly
represent him at the sentencing hearing.



There is no
change in the judgment.



The
petition for rehearing is denied.



Date: May 13, 2013 _________________________

Margulies,
Acting P.J.




>

Filed 4/17/13
(unmodified version)

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



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 first degree murder (Pen. Code, § 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 right to effective assistance of counsel. We conclude that the failure of the court to
grant defendant’s request for a transcript was not prejudicial error, and
affirm the judgment.

STATEMENT OF
FACTS

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.href="#_ftn1" name="_ftnref1" title="">>^[1] The cause of Jackson’s death was
massive 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 minor” 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.” 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.”

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.”
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.”
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.”

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.href="#_ftn2" name="_ftnref2" title="">^>[2] Williams was acquainted with defendant,
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 “snitched”
on him “with that shotgun” at the taco truck.
Referring to Jackson, Craig suggested that defendant “knock him down”
for being a snitch. Defendant stated
that he intended to retaliate, but would “make it look like an accident.”

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.”
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.

DISCUSSION

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.”

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. (People 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.]” (>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 Marsden
motion, and appointed new 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.” (People
v. Reed (2010) 183 Cal.App.4th 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; >People v. Bizieff (1991) 226 Cal.App.3d
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.” (>People v. Markley, supra, at p. 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.href="#_ftn3"
name="_ftnref3" title="">^[3] These assertions of incompetence of counsel
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.