P. v. Stamps





Filed 4/27/11 P. v. Stamps CA1/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. KEITH STAMPS, Defendant and Appellant.

A126440 (Alameda County Super. Ct. No. CH44838)

Keith Stamps was convicted by a jury of first degree murder with a firearm. He contends his conviction is not supported by substantial evidence, he suffered prejudice when the jury was erroneously instructed with CALCRIM No. 361 on his failure to explain or deny inculpatory evidence, the trial court failed to hold an adequate hearing on his Marsden motion, and his counsel was ineffective because he failed to request a jury instruction that provocation may reduce first degree murder to second degree murder by negating premeditation and deliberation. We reject Stamps's arguments and affirm the judgment.
BACKGROUND
Stamps shot and killed Elric Wheeler during an encounter in a shopping mall parking lot. When he walked up to the car in which Wheeler was riding as a passenger, Stamps was looking for a friend's dog that he thought the driver, Brandon Jaquez, had taken hostage to assure payment for a previous drug transaction that went wrong. Jaquez and Wheeler initially got out of the car and moved away, then headed back towards the car to prevent Stamps from taking it. As they approached, Stamps shot Wheeler in the chest.
Stamps was charged with first degree murder, with personal discharge of a firearm causing death. The court denied his motion for judgment of acquittal based on insufficiency of the evidence, and the jury convicted him as charged. His subsequent motion to replace appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) was denied. Stamps was sentenced to a term of 50 years to life imprisonment, and timely appealed.
DISCUSSION
A. Sufficiency of the Evidence
Stamps was tried for first degree murder under the alternative theories of (1) premeditated and deliberate murder, and (2) felony murder committed during an attempted carjacking. Stamps contends the evidence was insufficient to support his conviction under either theory. We disagree.
1. Factual Background
Two days before the shooting, Jaquez met Stamps and sold him some marijuana. Jaquez also gave Stamps his cell phone number for any possible future deals. The next day, Stamps called Jaquez to buy more marijuana, and they met again. After Jaquez arrived with his friend Wheeler, Stamps and another man got into the back seat of Jaquez's car and asked to see the marijuana. When Jaquez handed it to them, they ran off without paying for it.
The following day Jaquez saw Stamps and the other man standing in front of a house while he was driving through the neighborhood. As Jaquez drove closer, the two men ran inside the house and left a small dog on the front lawn. Soon after Jaquez drove by, he received a phone call from the telephone number he recognized as Stamps, and Jaquez heard â€