Filed 4/17/13 P. v. Lee CA!/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE




THE PEOPLE,
       Plaintiff and Respondent,
                                                          A134215
v.
DRE’SHAWN MARKUISE LEE,                                   (Alameda County
       Defendant and Appellant.                            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.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.




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.

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       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.


                                             3
       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
                                             4
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.


                                                5
         Marcel Williams provided a statement to an Oakland police investigator on
January 5, 2010.2 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

2
    The interview was recorded and played for the jury.

                                                 6
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
                                              7
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


                                               8
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


                                               9
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
                                               10
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.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
3
 Defendant also challenged counsel’s decision to essentially concede that he was present at the
scene of the shooting, but argue that Craig was the shooter.

                                               11
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.




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